immigration 101: the h-1b visa

The H-1B nonimmigrant visa category is generally utilized by corporations and other organizations to employ foreign nationals temporarily who qualify as persons in “specialty occupations.” The 1990 Immigration and Nationality Act defines those occupations to cover “professions” and positions which generally require that the individual possess at least a Bachelor’s Degree or its U.S. equivalent. Some examples of “specialty occupations” include health care professionals, university professors and other teachers, engineers, systems analysts, other computer professionals, financial analysts, persons in advanced business specialties, accountants, lawyers, architects and others who render professional services.

The H-1B visa category also includes such occupations as fashion models and foreign doctors.

A key requirement for the H-1B visa category which went into effect on October 1, 1991, is that the employer must pay the H-1B worker the prevailing wage for that occupation in the area of intended employment, unless the actual wage being paid by the employer is higher. The required wage rate is subject to review by the Department of Labor as part of the Labor Condition Attestation/Application procedure which was imposed on the H-1B category by the Immigration and Nationality Act of 1990.

(a) Procedure for Filing the H-1B Visa Labor Condition Attestation

Two preliminary steps must be taken by the employer before an alien worker can obtain an H-1B visa to enter the United States and work for the prospective employer:

1. The employer must obtain approval from the Department of Labor of a Labor Condition Attestation, and;

2. The employer must obtain approval from the Immigration and Naturalization Service of an H-1B petition supported by the approved Labor Condition Attestation.

Under the 1990 Immigration and Nationality Act, employers must file a Labor Condition Attestation (LCA) with the appropriate Regional Office of the U.S. Department of Labor prior to the filing of both new H-1B petitions and applications to extend H-1B status. The proper office for filing applications is one with jurisdiction over the place of intended employment. Processing of Labor Condition Attestations generally takes two to three weeks.

(b) Immigration Service Processing

Upon receipt of certification by the Department of Labor of a Labor Condition application, attesting that the employer will pay the alien the “required wage rate,” as determined by the Department of Labor, an H-1B visa petition, supported by a statement of the employer, documentation as to the alien’s educational qualifications and evidence of the alien’s status (whether in the U.S. or out of the U.S.) may be submitted to the Immigration and Naturalization Service Regional Service Center having jurisdiction over the state in which the petitioner conducts business.

Applications filed with the Regional Immigration Service Center in Vermont, which governs applications received from the state of New York, take three months or more.

Upon approval of the H-1B visa petition, an alien outside the United States may proceed directly to the American Consulate in which country he or she resides, and apply for an H-1B visa.

If the alien is in the United States legally in non-immigrant status and filed an application for change of status concurrently with an H-1B visa petition request, the Immigration and Naturalization Service, upon granting of the H-1B visa petition and application to change status in the United States, will authorize employment with the new employer for the period requested in the H-1B visa petition.

(c) Duration of Stay

An alien may be admitted to the United States in H-1B visa status for the period of time required by the employer, up to a maximum initial period of stay of three years. Extensions of stay, up to a maximum of three additional years are permissible, for a total period of admission of six years.

Note that the actual periods of initial admission and extension of stay will vary depending on the stated need of the employer, but the outside limit of six years may not be breached. Extensions of stay beyond the sixth year are not permitted, even in extraordinary circumstances.

Note also that the six-year limit applies to the total period of the alien’s stay in the United States in H-1B and L-1 status, including periods of stay for previous employers, and not just the current employer.

(d) Timing

In view of the fact that a Labor Condition Attestation must be applied for and certified, and takes approximately one to three weeks to be obtained, and given the processing times with the Immigration and Naturalization Service of at least three months, weeks, it is important to plan well in advance of employing the alien to facilitate employment when scheduled.

Generally, beginning the process four to six months in advance of the scheduled commencement date of employment would be appropriate.

Of course, there is much more information concerning the Labor Condition Application and the H-1B visa petition and supporting documentation that can be provided to you which is not covered by this article.

Each case would have to be evaluated individually to assure qualification for the visa category.

For further information, please contact us at info@wildesweinberg.com.

For Further Information On How We Can Help Your Firm Meet Its Employment Eligibility Verification Obligations, Please Contact Amy Wildes At amy@wildeslaw.com

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