H-1B – Filing Overview

By September 14, 2017Uncategorized

The H-1B is a nonimmigrant visa category which is not permanent, allowing employers to hire foreigners to work in “professional” jobs which can only be done by a 4-year Bachelor’s degree holder in that respective field. In addition, the employer must pay the foreigner the minimum “prevailing wage” and cannot short change his or her salary.  Congress has mandated that the annual statutory cap be set at 65,000 visas, with an additional 20,000 visas reserved for foreigners who have graduated with at least a Master’s degree from a United States institution of higher learning.

What are the steps to filing an H-1B petition? The main steps are: Wage Certification, Labor Certification Application(LCA)/iCERT, H-1B forms, Employee Documents, and Company documents.

Wage Certification
The prevailing wage for a particular category of job must be determined from the Foreign Labor Certification Data Center Online Wage Library (www.flcdatacenter.com). For each category of job (there are hundreds of categories), the main controlling factor is the state and county that the job is located in. Using the Wage Wizard, the online library will produce the lowest prevailing wage for four different levels of experience or complexity. The Wage Wizard will also produce the appropriate SOC code which matches the job category. The SOC code, tier level, and respective prevailing wage are all necessary for the next step. The Wage Certification is kept by the employer for their records.

LCA/iCERT
The iCERT Visa Portal System website (https://icert.doleta.gov/) is used to gain certification of the prevailing wage. Successful submission of a LCA to the U.S. Department of Labor requires the correct information regarding the employer, job category, SOC code, job site, tier level, job requirements, job description, and prevailing wage. The approved LCA must be signed by the employer.

H-1B Forms
For a typical H-1B application, the forms G-28, I-129, I-129H, and I-129DC are used. Form I-907 for premium processing is used only if the employer is a non-profit research institution. Premium processing for all other entities should resume later this year. G-28 is signed by the attorney. I-129 and I-129H are signed by the employer.

Employee Documents
The employee must provide the appropriate documents depending on the particular job, which may include: diplomas/degrees, equivalency certificates (if applicable), education transcripts, all approval notices of I-797s, scans of most recent I-94, passport, and copy of EAD card. Three most recent paystubs and W2 are also required if the applicant is transferring or extending jobs.

Company Documents
The employer must provide copies of the employer petition letter, If the employer is a consulting company, it must also show evidence of the contract between itself and vendor, as well as an itinerary. These documents must be signed by the proper employer or vendor: contract between itself and the employee, statement of work, and statement of control. In general, the employer must prove that it: (1) has the required job available for the required amount of time; and (2) has the ability to pay the employee.

Summary
The H-1B petition package includes: Forms G-28, I-129, I-129H, I-129DC; LCA, Xeroxed forms and Xeroxed LCA, Petition Letter, Employee Documents, and Employer Documents.