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The steps to
obtaining an H-1B visa
The basic chronology of a H-1b
application is as follows. First, a prevailing wage study must be
conducted for the job position. The employer is required to pay the
higher of either the prevailing wage or the actual wage that the
employer intended to pay the alien worker. A prevailing wage can be
obtained from a State Employment Security Agency (SESA) by
completing a form which asks for the responsibilities, skills,
experience, as well as other factors required for the job.
An
analyst at the SESA will refer to salary surveys on hand and match
the job description with their surveys and come up with a salary
that s/he believes is an accurate reflection of the industry.
Sometimes it is accurate, often it is not. Assuming that it is, the
next step is to prepare the Labor Condition Application (LCA).
The LCA
contains basic information about the employer. It also contains
spaces for the prevailing wage determination and for the salary that
the employer wants to pay the foreign employee. In addition, there
are four attestations which the employer makes.
By signing the LCA,
the employer is promising to pay the higher of the two wages, that
the employment of the foreign worker won't harm the working
conditions of similarly employed individuals, that there currently
is no strike in progress, and that notice of the filing of the LCA
was provided to individuals at the workplace. After the employer
reads and signs the LCA, it is mailed or faxed to the Department of
Labor (DOL) which has jurisdiction over the workplace to be
certified. The DOL recently implemented a faxback system which that
lead to faster response times compared to years past.
While the employer is waiting for
the LCA to get certified, preparations are made to have the petition
and supporting documents ready to go when the LCA comes back from
the DOL. The INS form that is used in the H-1b petition is the I-129
and H Supplement. Care must be taken to complete these documents
properly otherwise time will be wasted when if the INS kicks back an
application for improper completion.
In addition to the forms,
supporting documents must be prepared to be submitted along with the
forms. One of the key supporting documents is a letter from the
petitioning employer. This letter will describe the position offered
and detail how it is considered to be a specialty occupation. It
also explains how the foreign worker is qualified to fill this
position given his/her background, education, and skills. The letter
will also provide terms of the employment providing the salary and
the duration of the employment.
Other useful documents to include
in an H-1b petition are diplomas, transcripts and licenses, all of
which are designed to show that the foreign worker is qualified to
perform the responsibilities required for the job.
The H-1b petitioner takes these
supporting documents, the I-129 form and H Supplement, the certified
LCA, and the appropriate filing fee and sends it to an INS Service
Center. There are four Service Centers in the United States, and the
application must be sent to the one that has jurisdiction over the
employee's workplace. Upon receipt of the H-1b petition package, the
Service Center will send the petitioner a Notice of Receipt
indicating their receipt of the petition and include an approximate
processing time. At this point, the petitioner and foreign employee
must sit and wait for the Notice of Approval (I-797B).
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