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Computer programmers eligible for H-1B visas
Attorney at Law and Civil Law Notary
you qualify as a computer programmer specialty worker, you may be eligible
for a temporary specialty worker visa called an "H-1B". This visa
is valid for a period of three years and is renewable for another three
years, for a total of six years. Employment can be part-time, you
may have more than one U.S. employer, and the visa is fully "portable,"
i.e., you may move from one employer to another during the six-year period
H-1B specialty worker visa petitions are filed by U.S. employers with Citizenship and Immigration Services (CIS) of the U.S. Department of Homeland Security (formerly known as the Immigration and Naturalization Service - INS). U.S. employers want the temporary services of people whose work requires a bachelor's or higher degree in a specific occupational specialty. These fields of skilled knowledge include most computer science jobs as well as programmers and engineers.
The immigration lawyer's office prepares the necessary forms and other supporting documentation, including affidavits from the U.S. employer, based upon information provided to the lawyer by the employer.
The basic information required for an H-1B petition includes the date the U.S. employer was established and its Internal Revenue Service employer tax ID number, the total number of its employees, its most recently reported net and gross annual income, a detailed description of the specialty worker's proposed job, the specialty worker's salary, and the approximate value per week of the benefits (i.e., health insurance) the specialty worker will receive.
CIS sometimes takes six (6) months or more to adjudicate an H-1B visa petition, so today many employers utilize "15-day premium processing" at a cost of $1,000.00. Processing delays an woefully inadequate allocation (65,000) of H-1B visas by Congress are hurting this visa program as well as others in the United States.
Foreign nationals in the United States who have not worked without authorization or who have not otherwise violated their current immigration status can change their visa classification to H-1B in the United States. Foreign nationals who have violated the terms of their current immigration status and persons outside the United States must secure their H-1B visa abroad at a U.S. consulate.
Changes to the law governing H-1B visas -- and they occur frequently -- spell out new requirements that often take as long as two weeks to satisfy, and which must precede the filing of an H-1B petition. This includes obtaining a prevailing wage determination and the filing of a Labor Condition Application (LCA) with the Department of Labor (DOL) prior to submitting the H-1B petition to CIS. We prepare and file the employer's LCA. The LCA certifies that the specialty worker will be paid the higher of two specific wage levels: the "prevailing wage," which is determined by the local Secure Workforce Agency (SWA), sometimes in response to the employer's own wage survey, and the "actual wage," which is determined by comparison to all other workers in similar jobs at the specialty worker at the employer.
The Immigration Law Center helps employers obtain "prevailing wage" determinations and documentation. We also provide written instructions for the employer to use in determining the "actual wage". The SWA's prevailing wage determination may be challenged by competent, authoritative wage data and other evidence.
The LCA must be posted in two conspicuous places where the services are to be performed so that U.S. workers may know that you intend to file an H-1B petition on behalf of a specialty worker. Penalties, including back pay, are provided in the event an employer makes a misrepresentation of fact on an LCA.
The employer must sign an attestation on the LCA stating that it will pay for the specialty worker's "return transportation abroad" in the event the specialty worker is terminated before the expiration of his or her visa status. CIS rules governing this requirement lack an enforcement provision, and they do not indicate to whom the cost of transportation must be paid. Although CIS has indicated little interest in enforcing this provision, it is part of the law.
The employer must keep the LCA and prevailing wage/actual wage documentation on file. We will provide the employer with those materials and with instructions regarding their retention. The immigration lawyer prepares first drafts of all required documents for the employer's review, revision, and approval. When the employer approves the final documents, the lawyer files the petition and supporting documentation with CIS and DOL and will follow-up with those agencies to insure prompt adjudication. Filing fees continue to rise as Congress tacks more and more fees onto this visa program. It has become so expensive that many small U.S. businesses cannot avail themselves of it. There is a fee exemption for a school, college, or university, or an affiliated organization. Employers needing fast visa processing usually pay the additional $1,000.00 "premium processing" fee to CIS.
Once an H-1B approval notice is received, most foreign national beneficiaries of H-1B visas are then authorized to work. H-1B beneficiaries who are overseas will go to the U.S. consulate to get an H-1B visa stamp in their passport before they will be allowed to enter the United States in the temporary visa status and begin work for the U.S. employer. Even those who are eligible to work without obtaining a visa stamp abroad should get an H-1B visa stamp in their home country before traveling abroad extensively so they will be able to re-enter the United States without great difficulty and continue their employment.
The first step a foreign national should take in pursuing the H-1B visa is to get an offer of temporary employment from a U.S. employer. We require prospective clients, whether they are U.S. employers or foreign nationals, to fill out a simple intake questionnaire for us and submit it via regular or express mail. A completed intake questionnaire helps us properly evaluate individual situations and serve our clients better. There is no charge or fee for submitting a completed questionnaire to us. We also assist our clients' foreign national employees with consular processing overseas.
WARNING: Friends, family, and fellow employees are good sources of bad information about immigration and nationality law, procedures, and the INS. You should be aware that U.S. immigration law, federal implementing regulations, and the federal administrative procedures that one must follow change frequently. You should consult a qualified immigration lawyer about any new visa application process. If you do not know a qualified U.S. immigration lawyer, Mr. Campbell urges you to call the American Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington, D.C., toll-free at 1-800-954-0254.
Boyd F. Campbell is a member of the American Bar Association (ABA), the American Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB). He served as Chair of the Immigration Law Committee of the ABA's General Practice, Solo & Small Firm Lawyers Section, and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. He is also a memer of the ABA's International Law Section. Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002. He has practiced international, immigration, and federal employment law in Montgomery, Alabama, since 1988. Mr. Campbell is listed in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc. Access to this database of lawyers is available on the World Wide Web by subscription: www.bestlawyers.com. In August, 2001, Mr. Campell was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.
Questions or comments about this
article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA
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