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Requirements for the H-1B specialty worker visa
By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary
If
you qualify as a specialty worker, or you are a U.S. employer that needs
the help of specially trained foreign nationals, you need to know about
the H-1B nonimmigrant, temporary employment visas for professionals and
specialty workers.
This
article describes the requirements and procedures to get H-1B visas.
H-1B specialty worker visa petitions are filed with Citizenship and Immigration
Services (CIS -- formerly the Immigration and Naturalization Service) by
U.S. employers who want the temporary services of people whose work requires
a bachelor's or higher degree in a specific occupational specialty.
These
fields of include most computer science jobs, architecture, engineering,
mathematics, physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, the arts, and many teaching
jobs.
CIS
may grant H-1B visa status for a maximum of three years, with one extension
of up to three years, for a total of six years. However, an employer can
request an H-1B visa for less than three years, and employment may be part-time.
The immigration lawyer's office prepares the necessary forms and other
supporting documentation for the employer and the alien that will be filed
with CIS and the U.S. Department of Labor (DOL), 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 (IRS) employer
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.
On
July 30, 2001, legacy INS began offering "premium processing" for H-1B
visa petitions. Under this new program, the petitioning employer
may pay a $1,000 fee in exchange for 15-day processing of their petitions
or applications. In the interests of time, many of my corporate clients
pay this fee for fast service. I have found this new program to be
very sound.
Without
premium processing, CIS Service Centers are taking from four to six months
from the date a petition is filed to grant or deny an H-1B petition.
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.
Processing a Labor Condition Application and H-1B visa petition
1.
We prepare and file a Labor Condition Application (LCA) with DOL on behalf
of the employer prior to submitting the H-1B petition to the INS.
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 State Employment Security Agency (SESA), 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. We help employers obtain "prevailing wage" determinations
and documentation; we also provide written instructions for the employer
to use in determining the "actual wage." The SESA's prevailing wage
determination may be challenged by competent, authoritative wage data and
other evidence.
2.
We direct the employer to post the LCA 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.
3.
The employer must state 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. The rules of the INS governing
this requirement lack an enforcement provision, and they do not indicate
to whom the cost of transportation must be paid. Although INS has indicated
little interest in enforcing this provision, it is part of the law.
4.
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.
5.
The employer must pay the CIS filing fees under the new regulations.
We prepare 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 the Department
of Labor and the CIS and will followup with those agencies to insure prompt
adjudication.
If the H-1B visa beneficiary is overseas
H-1B
beneficiaries who are overseas will go to the U.S. consulate to get an
H-1B 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 employee- beneficiaries who are eligible to work without obtaining
a visa stamp abroad should get an H-1B visa stamp in their passport before
they travel abroad so they will be able to re-enter the U.S. 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. Please
note that the Act was amended by adding language that changed the way prevailing
wages are determined with respect to certain organizations. In computing
the prevailing wage level for an occupational classification in the case
of an employee of an institution of higher education (as defined in section
101(a) of the Higher Education Act of 1965), or a related or affiliated
nonprofit entity, or a nonprofit research organization or a governmental
research organization, the prevailing wage level shall only take into account
employees at such institutions and organizations in the area of employment.
With
respect to a professional athlete when the job opportunity is covered by
professional sports league rules or regulations, the wage set forth in
those rules or regulations shall be considered as not adversely affecting
the wages of United States workers similarly employed and be considered
the prevailing wage.
WARNING:As a foreign national, you may not be employed in the United States unless you are authorized to be employed by CIS. The second step involves the immigration lawyer. In my law offices, I require prospective clients, whether they are U.S. employers or foreign nationals, to fill out a questionnaire for us that helps us to evaluate the situation and serve our clients better. If you are within the United States and would like to know more about this visa, you may call the Immigration Law Center, at (334) 832-9090. If you would like to get the name of a U.S. immigration lawyer near you, please call the American Immigration Lawyers Association in Washington, D.C., at 1-800-954-0254.
Boyd F. Campbell is a member of the American Immigration Lawyers Association (AILA), and the Alabama State Bar. He has served as Chair of the Immigration Law Committee of the American Bar Association's General Practice Section and was a member of the ABA's International Law Section. He was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002. Mr. Campbell is Alabama's first practicing civil law notary, having been appointed to this official position by the Alabama Secretary of State in August, 2001.
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
Telephone: (334) 832-9090
E-mail: CLICK
HERE
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