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The H-1B category gives nonimmigrant (temporary) visas to foreign workers in specialty occupations, research and development positions for the Department of Defense, and work as distinguished fashion models. This category is highly competitive, and the U.S. distributes a limited number of H-1B visas each year.
H-1B nonimmigrant visa classification has two major requirements:
The position to be filled is a “specialty occupation” (i.e., an occupation requiring the theoretical and practical application of a highly specialized body of knowledge, and for which attainment of a U.S. Bachelor’s Degree or higher is a minimum requirement for entry into the occupation); and
The alien possesses a U.S. Bachelor’s Degree or higher in the specialized field. (If the individual does not have a degree, or possesses a foreign degree, an education and/or experience evaluation will be required to determine the equivalence to a U.S. degree.)
At The Fleischer Law Firm LLC, we can help you navigate this process and secure invaluable employment opportunities in the United States. The petition and application process can be rigorous, which is why we will maintain direct involvement in your case from start to finish.
Learn more from our H-1B visa attorneys at The Fleischer Law Firm LLC. Call 513-880-9969 or contact us online. We can begin with a free case evaluation*.
The H-1B Process
Obtaining H-1B status for a foreign worker requires several steps. As of December 6, 2019, USCIS requires H-1B applicants to electronically register before beginning their petition process.
After the electronic registration, the employer or agent will need to submit a Labor Condition Application (LCA), followed by Form I-129, Petition for a Nonimmigrant Worker. This petition may be filed at the same time as a change of status, change of employer, or extension of stay application if the foreign worker is already in the U.S. through another employer or status.
The H-1B Petition
DOL will digitally certify the LCA immediately. Once the LCA has been certified, we will complete the H-1B forms and send them to you to sign. When you return them to our firm, we will file the H-1B application with USCIS. The USCIS filing fee for the H-1B petition is $460.00, which cannot be paid by the alien.
The petition will consist of the Form I-129, a company letter of support outlining the proposed position duties and requirements, and supporting documentation that includes information about the company. It typically takes 3-6 months for USCIS to approve the H-1B petition. However, for an additional $1,225.00 paid to USCIS, Premium Processing will be completed within 15 days.
Please contact us online or call 513-880-9969 for personalized support with your H-1B application. Our team looks forward to putting our decades of experience to work for you.
How To File the LCA
By filing the LCA with DOL, the company is attesting to the following:
For the entire period of authorized employment (typically three years), the company will pay all H-1B alien(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of:
The actual wage level paid by the company to all other individuals with similar experience and qualifications for the specific position; OR
The prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment.
For the entire period of authorized employment, the employment of the H-1B alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
On the date the LCA was signed and submitted, there was not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment, and, if such a strike occurs, the employer will notify DOL within three days.
On or before the date of the LCA, notice of the application was posted in two conspicuous locations in the employer’s establishment. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.
A copy of the LCA certified by DOL must also be provided directly to the foreign worker prior to beginning the H-1B employment.
Please note that there are additional attestations and requirements that “H-1B dependent” employers must comply with. An “H-1B dependent” employer is generally one that has a high percentage of H-1B employees. Please let us know immediately if H-1B employees comprise 15% or more of your workforce.
If a company has onsite contract workers who are employed by an “H-1B dependent” employer, the employer of these contractors may request assurance from your company that your company has not laid off workers 90 days prior to the worker being on your company’s worksite, and your company does not intend to lay off workers within 90 days after the worker is on your worksite.
Thus, layoffs at your company may affect your ability to keep contract employees of H-1B dependent employers on your worksite. The LCA procedure is primarily complaint-driven.
In other words, an investigation into the accuracy of the LCA will normally occur only if a complaint is filed by an aggrieved party. If a complaint is filed, the DOL Wage and Hour Administrator will investigate the complaint.
LCA Violations
In the event of a violation of the LCA, the Administrator may:
Impose a $1,000 fine per violation;
Bar the employer from obtaining future visas for a period of at least one year; and
Order the employer to provide for payment of back wages.
Material misrepresentation on the LCA can also subject the signer to penalties for perjury, including fines and incarceration.
Satisfying Documentation Requirements
Within one working day of filing the LCA, upon request by any person, the company must make available for inspection certain documentation about the LCA. They must prepare a “Public Access” folder for this purpose.
This folder must be retained for one year beyond the end of the period of employment specified on the LCA. In addition to the public access documentation, the company must maintain certain records for DOL to review in the event of a complaint.
The company must maintain payroll records for the alien and any other individuals with experience and qualifications similar to those of the alien’s who are in the same position at the place of employment. The company must maintain the payroll records for a period of three years from the date of the creation of the records.
*Given the volume of inquiries the Firm receives, the Firm cannot guaranty it will consult with every possible client or evaluate every potential client’s matter. Moreover, a case evaluation or case consultation does not mean the Firm will provide a potential client with actual legal advice on a matter and does not create an attorney-client relationship. A free consultation or free evaluation is intended to enable the Firm to understand the nature of a potential client’s matter and to inform the potential client if the Firm will consider representing the potential client in connection with the matter. Before the Firm can provide legal advice to any person or entity, and before an attorney-client relationship is formed, the Firm must have a signed fee agreement with a client setting forth the Firm’s scope of representation and the fees that will be charged.
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If the H-1B petition is requesting a change of employer for an individual already in the H-1B classification, the employee may begin working for the new employer upon filing of the new employer’s H-1B petition if:
The employee was lawfully admitted into the U.S.;
The employee has not worked without authorization since last entry; and
The petition is filed before expiration of the employee’s authorized stay.
For petitions requesting a change of status from another nonimmigrant classification, the company may begin to employ the alien in H-1B classification once the petition is approved. If the alien is outside the U.S., they will need to obtain an H-1B visa stamp at a U.S. embassy or consular post abroad in order to enter the United States. Similarly, if the alien is in the U.S., but then travels internationally, they will likely need to obtain an H-1B visa stamp prior to reentering the United States.
Outstanding Legal Service for the World’s Top Specialists
If you seek an H-1B visa for yourself or your prospective employee, you need a law firm with decades of experience and a thorough understanding of the U.S. immigration system. At The Fleischer Law Firm LLC, our attorneys have what it takes to give you the highest possible likelihood of success. We have helped innumerable workers and companies overcome legal hurdles and accomplish their goals in as little time as possible.
