A United States employer can count on the efficiency and special skills
of highly- educated foreign professionals to meet their business
needs for a temporary period of time. To satisfy such needs, an employer
must petition on behalf of the foreign personnel to change their
immigration status to H1B.
What is H1B?
H1B is a type (among many types) of nonimmigrant visas, which permits
foreign professionals to enter the Untied States lawfully and work legally
for U.S. employers for a temporary period of time.
Requirements for H1B:
In order for foreign personnel to be eligible for an H1B visa, the
following conditions must be fulfilled:
- A U.S. employer must be willing to sponsor the worker. An employer
that agrees to sponsor a worker is referred to as the “Petitioner” and
the worker as the “Beneficiary;”
- The employer must offer employment involving a “specialty occupation,” which
requires special skills in that particular field;
- The foreign professional must have at least a bachelor’s degree
or its equivalent. If the Beneficiary does not have the required bachelor’s
degree, it may be substituted by relevant experience in combination with
the education; and
- The employer must prove that it will pay the minimum prevailing wages
and provide the same working conditions to the foreign professional as
to a U.S. national.
When to Apply:
Employers (Petitioners) for foreign nationals (Beneficiaries - who
are either outside the U.S. or within the U.S. but in a different status
and want to obtain their H1B status) can apply beginning April 1st of
each year until the predetermined quota is filled for that year. Each
Beneficiary must wait until after October 1st to begin working for the
Beneficiary’s particular employer. If the Beneficiary is not in
the U.S., the entire H1B process can be done via consular processing
at the United States embassy in the country in which the Beneficiary
Duration of H1B:
H1B status is initially issued for a period of three years. It can
be extended for three additional years upon application. H1B Beneficiaries
can bring their immediate family (spouse and children) to the United
States with them on H4 visas for dependents. However, the dependent family
members are not allowed to work in the United States during their stay.
How H1B Petitions are Processed:
H1B petitions are processed in one of two ways:
- Standard l Processing – completed within about 45 to 60
- Premium processing – completed within about 15 days or the United
States Citizenship and Immigration Services (USCIS) will refund the premium
Steps to File a Petition:
- Obtain the prevailing wage determination from the employment
security agency of the state in which the Beneficiary will work
or any other source acceptable to the U.S. Department of Labor;
- Employer must file for a Labor Condition Application (LCA) with the
U.S. Department of Labor; and
- Once wage determination and LCA certificates are obtained, the H1B
petition with all supplementing documents must be sent to the USCIS for
processing. The application must be accompanied by the following documents:
- Form I-129, petition for alien worker with its supplements;
- Form I-907 for premium processing (if applicable);
- Resume of the Beneficiary;
- Copy of each transcript showing each of the Beneficiary’s degrees
(including foreign degrees and experience evaluations where applicable);
- Evidence of the current status in the U.S. (if already in U.S.);
- Employment letter from the prospective employer (Petitioner) with
a job description;
- Profile of the prospective employer (Petitioner);
- Filing fee;
- Every other document required by the USCIS; and
- Letter from or on behalf of the prospective employer (Petitioner)
to the USCIS.
Once approved, the USCIS will send an approval letter followed by an employment
authorization document (EAD).
- $190 Standard Processing Fee.
- Additional fee of either $750 or $1,500. (If the employer has
25 or fewer full-time employees in the US, the employer is only required
to pay $750 as additional fee as opposed to $1,500 if the employer has
more than 25 full-time employees.) The employer need not pay any additional
fee if exempt under the H1B Data Collection and Filing Fee Exemption
- $500 Fraud Prevention and Detection Fee, separate from the petition
and additional fee mentioned above.
- $1,000 Premium Processing Fee. Note that the premium-processing fees
are optional and additional to all other fees. You are not required to
opt for premium processing.
- Such other fees mandated by the USCIS.
Why Seek Legal Advice?:
Immigration forms appear deceptively easy to a layperson, but are
full of legal technicalities. It is a lengthy, time consuming process,
which, if not done correctly, can cause a petition or application to
be rejected by the USCIS. A rejected petition can unnecessarily
delay an approval by several months, seriously affecting the plans of
a foreign national and a U.S. employer. Professional legal help
can make a world of difference between a lengthy, painful process and
a relatively painless, prompt, and accurate processing of an H1B petition.
Before you prepare the documents required to petition, decide whether
to seek the assistance of a layperson or an experienced attorney.
ACT NOW: Since the USCIS will begin accepting filings
for the FY2008 H-1B cap on April 1, 2007, it is important that you act
now and make the right decision. Call us for all answers to all
of your inquiries and for your H1B needs.
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