The H-1B application process is comprised of three sequential applications to separate government agencies:
- Department of Labor:
For the foreign national to qualify for H-1B eligibility, you must offer her a salary that is 100% of the prevailing wage for the particular occupation in your metropolitan area. In this regard the Department of Labor requires that you obtain its certification of a Labor Condition Application attesting to the prevailing wage and salary offered and other important conditions prior to filing the H-1B visa petition.
- Department of Homeland Security - United States Citizenship & Immigration Services (USCIS
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Once you have obtained certification of the Labor Condition Application, the H-1B petition is filed with USCIS. It must be supported by sufficient evidence to show that you, as the employer, are a viable enterprise; that the position you are offering realistically requires an individual with at least the equivalent of a U.S. Bachelor's level of achievement; and that the foreign national has indeed achieved the equivalent of a Bachelor's level of achievement. Equivalency can be established with either a foreign degree or by a combination of education and training that can be evaluated as the equivalent of a U.S. Bachelor's degree according to complex formulae and criteria. Normal processing times can now take months, while premium processing guarantees an answer within 15 business days for a $1,000 additional filing fee.
If your foreign national is already in valid non-immigrant status, you might request USCIS to change her status to H-1B visa status thereby allowing her to work right away without first having to obtain the H-1B visa stamp overseas. Even more fortuitously, if the foreign national has been in H status previously, then under a provision known as portability, she will be allowed to go on payroll on the date your H-1B employer transfer petition is received by USCIS without having to first wait for the petition to be approved.
- Department of Homeland Security - Department of State - Consular Post overseas
If you have applied for an H-1B visa for a foreign national who is overseas, then she must first obtain her H-1Bvisa stamp from a U.S. Embassy or Consulate overseas prior to entry into the U.S. The non-immigrant visa application is comprised of several forms and documentary evidence, based upon showing the original Notice of Approval from USCIS, Form I-797, of the H-1B petition. Because of new security checks at the overseas posts since September 11, every visa applicant is now required to be personally interviewed, resulting in delays. It is important for planning purposes to bear in mind that applications that once could be accomplished in days, are now taking several weeks in some cases. If your H-1B employee has changed status without first going overseas, she will need to apply for a visa at the U.S. Embassy or Consular office on her next trip overseas in order to re-enter the U.S.
Spouses and children of an H-1B employee qualify for H-4 status which permits school attendance but not employment.
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