The H-1B visa classification is for persons who will be employed temporarily (up to 6 years) in a "specialty occupation". The Immigration & Naturalization Service defines a "specialty occupation" as one which requires at least a Bachelor's degree in a specific field.

The position may be part time and may be on a Consultant or independent contractor basis. There is no requirement that the employer demonstrate a shortage of qualified Americans or that the employer has unsuccessfully attempted to recruit a qualified American. (Note that under the American Competitiveness and Workforce Improvement Act passed into law on October of 1998, "H-1B-dependent" employers will be subject to recruitment requirements once regulations have been issued.)

Labor Condition Attestation

The first step in the H-1B visa application process is the filing of a labor condition attestation (LCA) with the United States Department of Labor (DOL).

1. Labor Condition Attestation Form: This form must be filed and approved before the H-1B petition can be filed. The LCA contains information which lists the employer's address, fax & telephone numbers, employer I.D. number, the job title of the employee's position and the salary. It also contains statements by the employer that the employer is paying the H-1B worker a wage comparable to what it pays its other workers similarly employed and that the wage paid meets the "prevailing wage" --- the average wage for persons similarly employed in the same geographic area.
    
   
2. Posting: The employer must immediately post a copy of the labor condition application. The posting must be for a period of ten days and must be posted in two conspicuous places. The DOL suggests posting where the wage and hour notices and other mandatory employee information notices are posted.
    
   For consulting companies, the posting must be done at the job site where the employee will be working. If the employee moves job sites within the same geographical area, the LCA must be posted at the new job site before the employee moves to the new position.
    
   
3. Labor Condition Application File- also called "Public Access File"
   The employer must maintain a separate file relating to the labor condition attestation. In that file, the following documentation must be kept:
    
   1)  a copy of the approved LCA filed for the H-1B employee;
    
   2)  copy of the posted LCA with notations as to the locations and dates of posting;
    
   3)  documentation of compliance with the prevailing wage requirement. The employer may use a prevailing wage determination from state's employment service agency (" SESA") or a salary survey;
    
   4)  if other persons are similarly employed by the same organization, a statement of the wage or salary system covering the H-1B petition's position or a list of the employees (or their ID # s) employed in similar occupations and their salaries.. This is required to show compliance with the requirement that the employer is paying each H-1B worker no less than the actual wage paid to others similarly employed; and
    
   5)  a list of the persons (employee numbers may be used in lieu of names) covered by the LCA and their salaries.
    
   PLANNING ISSUES: LCA's can be obtained with respect to any positions in which the company believes it will need to hire foreign nationals.
    
   

H-1B Visa Petition

The H-1B visa petition forms and supporting documents are submitted to the Immigration & Naturalization Service after the Labor Condition Application is approved. Included is a letter prepared on the employer's letterhead describing the nature of employer's business, the employee's position, the employer's educational requirements for the position and the employee's qualifications. Also included are copies of the prospective H-1B employee's diplomas (and transcripts, if necessary), resume and immigration documents. Where the H-1B employee's family seeks dependent visa status (H-4 classification), immigration and relationship documents must also be submitted.

Change of Status and/or Acquiring Visa at Consulate Abroad

If the employee is in the United States and in valid nonimmigrant status, the H-1B visa petition form will also serve as an application for change of nonimmigrant status to H-1B status. If the employee is out of status or outside the United States, he or she will have to apply for the H-1B visa at a Consulate abroad after the visa application is approved by the Immigration Service.

When the notice of approval of the H-1B visa petition is issued, the employee who is outside the United States takes the notice of approval form to the consulate and applies for the H-1B visa to enter the United States. Our office will supply the employee with a copy of the petition and LCA to submit to the consulate with the original approval notice (called form I-797).

Planning Issues

H-1B quota problem: A limited number of H-1B visas are issued each fiscal year (beginning October 1st to September 30th). Petitions to extend H-1B status with the same employer or petitions to change an H-1B employer do not count toward the quota. Petitions to change status (e.g. for a student on F-1 practical training) or for an out of country prospective employee will be subject to the quota. The regulations allow a petition to be filed up to 6 months before the date work begins.

Some F-1 students may want longest possible period in F-1 status for tax reasons, hence the employer may request that the change of status take effect up to six months after filing of the H-1B petition.

H-1B Questionnaire Intake Preparation Form