Understanding the H1-B Visa for Skilled Workers

The H-1B visa is a non immigrant visa that allows United States employers to temporarily employ foreign workers in specialty occupations. The H-1B visa program is designed for workers in fields such as science, engineering, computer programming, medicine and education. In order to qualify for an H-1B visa the applicant must have a bachelor degree or equivalent work experience and must be sponsored by a U.S. employer.

The H-1B visa application process

Step 1: Determine Eligibility for the H1-B Visa

The first step in the H-1B visa application process is to determine if you are eligible for the visa. To be eligible for an H-1B visa, you must have a bachelor’s degree or its equivalent in a specialty field and be sponsored by a U.S. employer. The employer must also offer you a job and be willing to file a Labor Condition Application (LCA) on your behalf.

Getting a Labor Condition Application for an H1-B Visa

A Labor Condition Application (LCA) is a key component of the H-1B visa application process. The Labor Condition Application must be filed by the United States employer and is used to demonstrate the foreign worker will be paid the “prevailing wage for their occupation” and that the employment will not negatively impact the working conditions of existing U.S. workers. In order to complete and file an LCA, the following steps should be followed:

Step 1: Determine the Prevailing Wage

The first step in completing an LCA is to determine the prevailing wage for the foreign worker’s occupation. The prevailing wage is the average wage paid to workers in a particular occupation in the geographic area of intended employment. The prevailing wage can be found through the Department of Labor’s (DOL) Occupational Employment Statistics (OES) wage data or through a recognized wage survey.

Step 2: Complete the LCA Form

The next step is to complete the LCA form. The form can be found here and must be filled out by the U.S. employer.

The form must include the following information:

• The name and address of the U.S. employer
• The name and job title of the foreign worker
• The prevailing wage for the occupation
• The period of intended employment
• A statement indicating that the foreign worker will be paid the prevailing wage
• A statement indicating that the employment of the foreign worker will not affect the ability of other workers to obtain employment
• A statement indicating that the U.S. employer will provide working conditions for the foreign worker that are equivalent to those provided to U.S. workers

Step 3: Attest to Labor Conditions

The U.S. employer must also attest to the labor conditions of the employment including that:

• The U.S. employer will provide the foreign worker with working conditions that are similar to those provided to U.S. workers
• The U.S. employer will provide notice to the bargaining representative of the foreign worker’s intended employment, or if there is no bargaining representative, will post notice of the intended employment in two conspicuous locations at the place of employment
• The U.S. employer will pay the foreign worker the prevailing wage
• The U.S. employer will not displace U.S. workers as a result of the foreign worker’s employment

Step 4: File the LCA

Once the LCA has been completed it must be filed with the DOL’s Employment and Training Administration (ETA). The LCA must be filed electronically through the DOL’s iCERT portal, and a fee of USD$580 must be paid when submitting the LCA.

Step 5: Wait for Approval

Once the LCA has been filed it will be reviewed by the DOL. If the LCA is approved then the U.S. employer will receive a certified LCA. This certified LCA must be included with the H-1B visa petition when it is filed with the U.S. Citizenship and Immigration Services (USCIS). The LCA process can take up to 6 weeks to complete so it is important to plan accordingly.

Check Your USA Visa Eligibility

Step 2 of an H1-B Application

Find a U.S. Employer

The next step is to find a U.S. employer who is willing to sponsor you for an H-1B visa. This can be done through networking, job searches, or through a staffing agency. Once you have found a U.S. employer who is willing to sponsor you they will be responsible for filing the LCA on your behalf.

Step 3 of an H1-B Skilled Worker Visa Application

The LCA is a form that must be filed by the U.S. employer and is used to show that the foreign worker will be paid the prevailing wage for their occupation and that the employment will not negatively impact the working conditions of U.S. workers. The LCA must also include a statement from the employer indicating that the employment of the foreign worker will not affect the ability of other workers to obtain employment.

Step 4 of the H1-B Application (Form I-129)

Once the LCA has been approved then the employer must then file the H-1B visa petition with the U.S. Citizenship and Immigration Services (USCIS).

The petition must include:

• a detailed job description
• evidence of the foreign worker’s qualifications
• evidence of the employer’s ability to pay the offered wage
•  a fee

The H-1B visa petition (also known as the Form I-129) is the primary document used to apply for an H-1B visa. The form is used to provide information about the foreign worker, the U.S. employer and the job being offered.

H1-B Form I-129 Sections

• Information about the U.S. Employer: In this section the U.S. employer must provide information about their business, including their name, address, tax ID number and type of business.
• Information about the Foreign Worker: In this section the foreign worker must provide information about their education, experience and qualifications for the job being offered. They must also provide information about their passport, previous U.S. visas and any other relevant information.
• Information about the Job: The U.S. employer must provide a detailed description of the job being offered including the job duties, salary and working conditions. They must also provide information about the occupational classification and the prevailing wage for the job.
• Labor Condition Application (LCA) Information: The U.S. employer must provide information about the LCA they have filed, including the start and end dates of the LCA, the prevailing wage and the name and address of the bargaining representative.
• H-1B Visa Classification: The U.S. employer must indicate that they are seeking an H-1B visa for a skilled worker. They must provide information about the qualifications of the foreign worker for the job and say why the foreign worker is needed for the job.
• Signature and Certification: In this section the U.S. employer must sign and certify that all the information provided in the form is true and correct to the best of their knowledge.

Step 5: Apply for the H1-B Visa

If the H-1B visa petition is approved by USCIS the foreign worker must then apply for a visa at a U.S. consulate or embassy. The application process includes a face to face interview in which during which the consular officer will review the foreign worker’s qualifications and the employer’s offer of employment.

Step 6: Enter the United States

Once the visa has been issued then the foreign worker can then enter the United States. The H-1B visa allows the foreign worker to remain in the U.S. for up to three years with the possibility of extending their stay for up to an additional three years.

The Responsibilities of the USA Employer and the Employee

The U.S. employer is responsible for paying the foreign worker the prevailing wage for their occupation and must also comply with labor laws and regulations. The foreign worker is responsible for maintaining their visa status and must comply with all immigration laws and regulations while in the U.S.

Risks of being on the H1-B Visa

It is important to understand the potential risks associated with the H-1B visa. For example, if the U.S. employer terminates the foreign worker’s employment then the foreign worker must either find a new employer to sponsor them or return to their home country.

Additionally, if the U.S. employer is found to be in violation of immigration laws or regulations then the foreign worker’s visa could be revoked which would leave them without a valid immigration status in the U.S.