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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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