Procedures to Petition for an H-1B Worker: Overview
A step-by-step account of how an employer can petition for and hire a worker on an H-1B visa.
The H-1B visa category is for noncitizens who have a job offer to work in the United States in a "specialty occupation," will perform services under a Department of Defense-administered project, or work as a fashion model of distinguished merit and ability.
The "specialty occupation" category is the one that applies to the majority of H-1B employers and workers. It refers to jobs for which the usual requirement is a U.S. bachelor's degree or the equivalent in a specific field and for which the foreign national employee has a relevant degree or the equivalent. Examples of jobs that qualify include accountants, engineers, information technology professionals, pharmacists, scientists, and teachers. For additional examples, see the article, “Types of Jobs Most Likely to Qualify for an H-1B Visa.”
There is a cap of 85,000 H-1B visas for first-time applicants each federal fiscal year, which runs October 1 to September 30. See "H-1B Visa to the U.S.: Who Qualifies?" for information on the H-1B cap and how it affects when you can file an H-1B petition. This creates various complications in the application process, as mentioned below.
Basic Steps Toward Obtaining an H-1B Visa or Status for a Worker
The employer must take several preliminary steps before putting an H-1B worker on the payroll. They are:
- Prepare a detailed job description that includes the minimum education and experience requirements.
- Review the prospective worker's qualifications to make sure he or she has a relevant bachelor's degree or the equivalent combined education and experience.
- Determine the prevailing wage. The employer must pay the higher of the "actual wage" (wage paid to other workers in the same job) or the "prevailing wage" (statistical average wage paid to workers in the same geographic area). For more on the wage requirement, see “H-1B Employers: What Wage Must You Pay?”.
- File a "Labor Condition Application" ("LCA") with the U.S. Department of Labor ("DOL") to verify that the proposed employment of the H-1B worker meets certain wage and working condition requirements. The DOL usually sends the certified LCA by e-mail within one week of when you file it using the online portal, http://icert.doleta.gov/.
- Submit a visa petition on Form I-129, with supporting documents and filing fees, to U.S. Citizenship and Immigration Services (USCIS). For details, see "Employer Procedures to Petition for an H-1B Worker on Form I-129."
When the H-1B Employee Can Start Work
There are different scenarios for when the new employee may start working, depending upon whether he or she is in the United States or abroad.
For someone who is in the U.S. working for another employer in H-1B status, he or she may be authorized to start working for the new employer once it has received USCIS Form I-797 Notice of Action to confirm that the petition is pending.
In other cases, the employer may need to wait for USCIS to approve the petition before the new employee begins working. For additional information and guidance on someone currently in the U.S., see “How Employers Can Hire an H-1B Worker Who Is Already in the U.S.” and “H-1B Portability - How Workers Can Change Employers.”
If the prospective employee is outside the U.S., he or she will take the approval notice (also issued on USCIS Form I-797 Notice of Action) and a copy of the H-1B petition submitted to USCIS to the U.S. Consulate or Embassy in his or her home country to apply for an H-1B visa.
The visa application process and timing may vary slightly among the different consulates and embassies. To check the protocol, select the particular location at http://www.usembassy.gov/. The processing times are available athttp://travel.state.gov/visa/temp/wait/wait_4638.html, where you can see how long it will take to get an appointment to apply for the visa and then how long it will take the consulate or embassy to issue the visa.
Once the person has the visa, he or she may travel to the U.S. and start working .
This information is intended merely as an introduction to the H-1B visa. See the additional articles referenced above and consult immigration counsel for further guidance.