Broadly speaking, there are two types of U.S. visas, an immigrant and a non-immigrant visa. A visa that is used by its holder to enter the country, which allows them to work and live here permanently is called an immigrant visa. On the other hand, a visa that is used to enter for purposes other than a permanent stay, such as a student (F1), visitor (B1/2), or temporary employment (H-1B) visa is considered a non-immigrant visa.

H-1B is a non-immigrant visa, that is afforded to a foreign national, who seeks to enter the country to temporarily fill an employment position in a specialty occupation. Every year 65,000 visas are set aside for these types of workers, and an additional 20,000 visas for people with advanced degrees. Applying for an H-1B visa is a long and complex process. If you are an employer who is seeking to sponsor a foreign national for an H-1B visa, it’s important to understand the process and follow the necessary steps.

What are the H-1B visa requirements?

Sponsoring a foreign worker for an H-1B visa is a long and complex process. It consists of many steps and has a plethora of requirements.

Qualifications for H-1B Visa Applicants: The qualifications for an H-1B position are twofold. One pertains to the position and the other to the applicant. For a position to qualify, it must be a specialty occupation, requiring a bachelor’s degree or its equivalent in a field directly related to the H-1B role. And for the applicant to qualify, he or she must hold a bachelor’s degree or its equivalent in the specialty occupation.

Employer Sponsorship Requirements for H-1B Visa: The requirements for an employer in order to qualify as an H-1B sponsor are pretty basic. The company must have a Federal Employer Identification Number (FEIN), and other obvious requirements such as an address, phone number, etc. Any U.S. employer with a FEIN is qualified to sponsor a foreign national for a non-immigrant H-1B visa to perform a specialty occupation.

Education and Experience Requirements for H-1B Visa: First of all, the position itself must be a specialty occupation. To pass as one, it must require a bachelor’s degree and an application of a body of highly specialized knowledge. Secondly, the applicant must have at least a U.S. bachelor’s degree or its equivalent in the specialty required for the occupation, or a state license to practice in such occupation if one is required.

If the applicant doesn’t have a degree or a license, an employer may still sponsor him or her. In such a case, the employer must show that the applicant has experience in the specialty and that it is equivalent to a bachelor’s degree. Additionally, he or she must have held progressively responsible positions in such a specialty.

Wage requirements and Prevailing Wage Determinations for H-1B Visa: Before an employer can file the H-1B visa petition on behalf of an alien worker, it must make a prevailing wage determination. To do this the employer must file a Form ETA 9141 with the Department of Labor, after which the department will calculate a wage amount for the position. This amount is called the prevailing wage, and the worker must be paid at least this amount.

The purpose of the prevailing wage determination is to protect U.S. workers and the U.S. labor market by preventing employers from hiring cheap foreign labor. The prevailing wage is determined based on the average wages paid to a similarly situated U.S. worker in the area of intended employment at the time.

How to prepare for an H1B visa application?

Preparing for the H-1B visa application can be a long and complex process. It consists of several many steps, and several applications, and involves multiple government agencies. Here is a brief overview as you prepare for an H-1B visa application.

Gathering Required Documents and Information: The process of filing an H-1B is document heavy, which means that you must be able to support all representations you make to the DOL or the USCIS. That is why it’s imperative that both the employer and employee gather all necessary documents. The employer must have the job description, offer letter, employment contracts, tax returns, and financial statements, among other things handy so it’s readily available if and when the government asks for them.

Similarly, the employee must gather documents like a diploma, resume, professional license, passport, and prior H-1B approvals, among other things. These documents will come in handy when the employer files the petition on your behalf, or when you attend the visa interview at a U.S. Consular abroad.

Requesting the Prevailing Wage Determination: The very first step an employer must take is to request a prevailing wage determination from the U.S. Department of Labor. This is done by completing Form ETA-9141 and submitting it to the National Prevailing Wage Center. The prevailing wage is the minimum salary the employer must pay the alien worker in order for the employer to hire him or her for the position.

Filing the Labor Condition Application: Next, the employer must file a Labor Condition Application (LCA) with the Department of Labor. It involves filling out Form ETA-9035/9035E and attesting to information such as job details, employer information, point of contact, employment, and wage information, among other things.

In addition, the employer must fulfill the LCA notice requirements. It must be posted at two locations at the place of employment, for a consecutive 10-day period. Such notice must be given to U.S. workers on the date or within 30 days before the employer filed the LCA.

Selecting a Designated U.S. Consulate for Visa Interview: If the alien worker is currently in the country on valid immigration status and the petition is approved, he or she is now an H-1B visa holder. However, if the applicant is currently outside the country then he or she must apply for a visa at a U.S. consulate abroad. Before the employer files the H-1B petition, it’s important to select the appropriate U.S. consulate. In most cases, you’d select the consulate in your home country.

What is the H1B visa application process?

After the employer and employee have prepared for the visa application and gone through all the prerequisite steps, it’s now time to file the actual petition with the USCIS. The H-1B petition (Form I-129) must be filed by the employer on behalf of the foreign worker and submitted to the USCIS.

Completing and Filing the Petition: An employer must file a petition for the alien worker by filling out and submitting Form I-129. The form will ask to fill out the petitioners’ information, beneficiary information, processing information, and employer and employment information, among other things. It’s important to fill out the application completely and accurately.

The petition can name only one alien worker and must include sufficient documentation to prove that the services the worker is to perform are in a specialty occupation. Make sure to list detailed information about the position such as job duties, period, requirements, etc. Additionally, you must include all supporting information that can prove that the worker is qualified as a specialty worker.

Visa interview process and required documentation: If the alien worker is currently in the U.S. on another non-immigrant visa and is eligible to change status, he or she doesn’t have to leave the country. However, if the worker is currently outside the U.S. or is ineligible to change status from inside the country, he or she must travel to their home country and apply for a visa there.

Such a visa interview process is called consular processing and is conducted at a U.S. consulate or an embassy by a consular officer. The interview can last anywhere from a few minutes to a much longer duration. Before you go to your interview make sure you have gathered all required documents. Some of these documents include an unexpired passport, H-1B petition, H-1B approval notice, labor condition application (LCA), employment offer letter stating salary, position, and start date, and transcripts or diplomas.

The questions at the interview may seem conversational or sometimes probing, it all depends on the facts of your case. Usually, the officer will ask you about the details of the position, information about the employer, your education, and employment history, among other things. Make sure you have reviewed the petition, labor condition application, and job offer letter thoroughly. This way, you are prepared to address any questions or comments the officer may throw at you.

What is next after receiving H-1B visa approval?

If the interview goes well and the consular officer approves the visa, you will be able to pick up your stamped passport in a few days. Now that your H-1B visa is approved, you must prepare for your travel to the United States.

At the port of entry, you will be inspected by a Customs and Border Protection Officer. This interaction is usually brief and consists of questions pertinent to your job, employer, position, etc. After you arrive in the U.S. you may begin working for the employer and carry out your responsibilities as outlined in your job description.

H-1B visa gives you the authorization to work for a petitioning employer for a duration of 3 years, with an extension available for another 3 years. However, if your employer decides to sponsor you for an employment-based green card while on H-1B status, you may be allowed to change your status from H-1B to a permanent resident without leaving the country.

Immigration Attorney in Oklahoma City

If you are thinking about sponsoring an alien worker for his or her H-1B visa, and need help with the process, we are here for you. Vivid Niroula is an immigration attorney based in Oklahoma City, who has a solid understanding of U.S. immigration laws. He is highly responsive, charges reasonable fees, and takes pride in providing client-focused service. Contact us today by calling our office at (405) 456-9250 or by filling out the Contact Us Form.