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The steps to obtaining an H-1B visa


The basic chronology of a H-1b application is as follows. First, a prevailing wage study must be conducted for the job position. The employer is required to pay the higher of either the prevailing wage or the actual wage that the employer intended to pay the alien worker. A prevailing wage can be obtained from a State Employment Security Agency (SESA) by completing a form which asks for the responsibilities, skills, experience, as well as other factors required for the job. 

analyst at the SESA will refer to salary surveys on hand and match the job description with their surveys and come up with a salary that s/he believes is an accurate reflection of the industry. Sometimes it is accurate, often it is not. Assuming that it is, the next step is to prepare the Labor Condition Application (LCA). The LCA contains basic information about the employer. It also contains spaces for the prevailing wage determination and for the salary that the employer wants to pay the foreign employee. In addition, there are four attestations which the employer makes. 

By signing the LCA, the employer is promising to pay the higher of the two wages, that the employment of the foreign worker won't harm the working conditions of similarly employed individuals, that there currently is no strike in progress, and that notice of the filing of the LCA was provided to individuals at the workplace. After the employer reads and signs the LCA, it is mailed or faxed to the Department of Labor (DOL) which has jurisdiction over the workplace to be certified. The DOL recently implemented a faxback system which that lead to faster response times compared to years past.

While the employer is waiting for the LCA to get certified, preparations are made to have the petition and supporting documents ready to go when the LCA comes back from the DOL. The INS form that is used in the H-1b petition is the I-129 and H Supplement. Care must be taken to complete these documents properly otherwise time will be wasted when if the INS kicks back an application for improper completion.

In addition to the forms, supporting documents must be prepared to be submitted along with the forms. One of the key supporting documents is a letter from the petitioning employer. This letter will describe the position offered and detail how it is considered to be a specialty occupation. It also explains how the foreign worker is qualified to fill this position given his/her background, education, and skills. The letter will also provide terms of the employment providing the salary and the duration of the employment.

Other useful documents to include in an H-1b petition are diplomas, transcripts and licenses, all of which are designed to show that the foreign worker is qualified to perform the responsibilities required for the job.

The H-1b petitioner takes these supporting documents, the I-129 form and H Supplement, the certified LCA, and the appropriate filing fee and sends it to an INS Service Center. There are four Service Centers in the United States, and the application must be sent to the one that has jurisdiction over the employee's workplace. Upon receipt of the H-1b petition package, the Service Center will send the petitioner a Notice of Receipt indicating their receipt of the petition and include an approximate processing time. At this point, the petitioner and foreign employee must sit and wait for the Notice of Approval (I-797B).




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