Overview

This discussion is does not address all of the potential issues faced by an H-1B petitioner and alien beneficiary.  Some cases may be more complex and require a different analysis or additional steps.  The forms and petition should be very carefully completed using the instructions provided by the agency that issues the form or petition.  Those instructions are included with the downloadable forms on this page.   Any mistakes or omissions on a form or petition will likely result in its denial.  h1b h1b h-1b h-1b work visa skilled work visa h4 h-4

The H-1B process is relatively straight forward, and one need not be an attorney to process H-1B visas for individuals or companies (at least in the state of California).   The process consists three basic steps: (1) requesting a prevailing wage determination, (2) filing a labor condition application, and (3) filing the INS form I-129 with H Supplement.  The first two forms are one page each and the third is three pages.  All three forms are available both on this page and on the INS Forms download page.  The first form is faxed to the Employment Development Department, the second is faxed to the Department of Labor and the third form, the petition, is mailed to the INS.  Then the INS processes the petition and sends notice of approval or denial to the petitioner.  If approved, the approval notice is forwarded to the US consulate nearest the alien beneficiary's residence.  That consulate then mails notice to the alien beneficiary for a consular interview date.  The visa is issued at that interview.

There are only a few caveats.  First, if the Employment Development Department or other State Employment Services Agency gives a prevailing wage for the occupation that you list on the form and you feel that it is too high or too low, you should consult another wage survey.  Unfortunately, most alternative wage surveys are private, but an employer may even conduct its own survey if it uses at least eight or more wage examples for the same or similar positions in the same Metropolitan Statistical Area (MSA) under rules set forth in GAL 2-98.

The second caveat is that the employer should carefully read the attestations that it makes on the Labor Condition Application and I-129H because those forms bind the employer to take certain actions like retaining a copy of the LCA at the work site, and posting the LCA in at least two conspicuous places at the proposed work site at the time the LCA is filed with the Department of Labor and for 10 working days.

The H-1B visa allows skilled foreign workers to work in the United States for up to three years, and this visa may be extended another three years, for a maximum consecutive stay of six.  To be eligible for an H-1B visa an alien must have special job skills and a job offer from a United States employer that demands the same skills.  The President signed into law an increase in the annual allotment of H-1B visas which is discussed in the December 1998 Newsletter.  This increase resulted from intense lobbying by the computer industry which currently experiences a shortage of qualified workers.

Qualifying alien nationals present in the United States may change status to H-1B (from, for example, student or business traveler visas) provided that they have not violated their current status.  In all other cases H-1B visas are issued at the consulate located in the alien national's home country.

Upon approval the alien's spouse and children may receive nonimmigrant visas for the same length of stay as the H-1B holder.  These immediate family applicants each must file H-4 applications and Forms I-539.  These H-4 dependents may study full or part time without changing to F-1 or M-1 status, but may not work without authorization.   And an alien who has reached the end of a nonimmigrant business visa stay must wait one full year outside of United States before qualifying for an H-1B.

Specialty Occupations

An employee may receive an H-1B visa only if the position he or she seeks to fill is a specialty occupation.  A specialty occupation is one requiring the application of a specialized body of knowledge.  The position must require a bachelor's degree or equivalent combination of education, training or experience.  The INS recognizes many specialty occupations including:

The employer must show that the position is a specialty occupation and that it requires a bachelor's or more advanced degree.  If the employer requires a highly skilled employee for a position not recognized as a specialty occupation, the employer may prove that the position nonetheless requires a specialty worker.  In making its determination the INS considers many factors.   Among these are:

Position And Applicant Requirements

The Job Description

The job description must clearly state the duties of the position, the number of employees supervised, the discretion afforded to persons holding this position (i.e. are they closely supervised or supervised very little), necessary applicant qualifications and that the position requires a bachelor's degree or equivalent experience, training and education.  Employers should avoid informal and inaccurate descriptions that include statements like "self-starter, go-getter"   It is better to describe the tasks themselves than the personality qualities or attitude that applicants should have.

The Minimum Position Requirements

The position requirements that SESAs, the Department of Labor and the INS are looking for are the minimum requirements.  The minimum requirements are the absolute minimum qualifications that a person will need to adequately perform the job duties after a reasonable period of adjusting to the new surroundings.  Employers should be careful not to include minimum requirements like "good sense of humor" or other informal standards that defy precise description.

The Applicant's Skills

The alien must document as fully as possible his or her education, training and experience as it bears on the position offered.

Procedures Step-By Step

There are really three steps.  They are discussed briefly here, and in greater detail in the sections below.  The downloadable forms are in Adobe .pdf format, and each form includes instructions provided by the agency that issued it from their website.

1. Download the Prevailing Wage Determination Request Form (CA Only) and fax it to the Employment Development Department, Wage Research Unit at (916) 262-2500.  If you have questions, call the Wage and Research Unit at (916) 262-2321, if you want to check the status of your already sent request, call (916) 262-2321.  This division of the EDD always answers calls promptly and does field questions about PWDs and LCAs (or check out our Electronic Version of the same form that allows the user to fill it in using a computer, save an electronic copy and fax directly from the computer: Electronic Prevailing Wage Request Form).
2. Download the Labor Condition Application, complete it, attach the Prevailing Wage Determination Form that the EDD should have faxed back to you and fax both forms to (415) 975-4601 (including your return fax number on the cover sheet).   You can call or fax questions to the Department of Labor at Tel: (415) 975-4601, Fax: (415) 975-4660.  You may also mail the LCA to:

US Department of Labor
71 Stevenson Street, Room 805
San Francisco, California 94105

Prevailing Wage Determination

The employer must pay the proposed H-1B skilled worker the higher of the prevailing wage or the actual wage.  The prevailing wage is a measure of the mean (not median or mode) income for a specific occupation in a specific Metropolitan Statistical Area (MSA).  The actual wage is the wage that the sponsoring employer pays to other employees in the same occupation.  The employer must use this information in completing the Labor Condition Application.

Prevailing wage determinations (PWDs) may be obtained for free from your local State Employment Services Agency (SESA).  In California, that agency is the Employment Development Department,  Although only the California Prevailing Wage Determination Form and fax number is included here, most states have instructions and downloadable forms on their websites.  You can expect a more complete listing of those forms and numbers in the months to come.  The EDD provides instructions for the PWD form that you may download here in .pdf format.

Employers may also submit their own  prevailing wage survey provided that the employer comply with the requirements of GAL No. 2-98 (these are Department of Labor operations guides published in the form of letters, GAL is an acronym for 'General Administration Letter').  The requirements of GAL 2-98 are:

For more information about prevailing wages, see the Prevailing Wages page on this website.

Labor Condition Application

The employer must file a Labor Condition Application with the United States Department of Labor.  This form, ETA 9035, must include attestations that the employer will pay the specialty worker the higher of the prevailing wage and the actual wage for the designated position, and that alien’s employment in the occupation listed will not adversely affect the wages and working conditions of United States workers similarly employed.

This form may be faxed or mailed to the Department of Labor, Employment and Training Division and should not take longer than four weeks to process, although times have recently been improving significantly.

H-1B Dependency Under ACWIA

President Clinton signed a new bill into law in October 1998 that raised the annual allotment of H-1B visas requires additional attestations of employers who willfully violated the requirements of an LCA as well as those deemed to be H-1B dependent.  An H-1B dependent employer is one that has at least 51 employees and at least 15% of its total workforce comprised of H-1B workers.  But companies with 25 or fewer employees are not deemed H-1B dependent if they employ seven or fewer H-1B workers, and companies with 26-50 employees are not deemed H-1B dependent unless they employ more than 12 H-1B workers.

New Attestations

The new law requires three new attestations, two of which apply only to the types of employers listed above.  The first attestation is that the employer will offer the H-1B employee the same benefits and eligibility for benefits that it offers to similarly situated employees.  This attestation applies to all employers filing H-1Bs.   The second attestation affirms that the employer will not displace a United States worker from an essentially equivalent job during the period beginning 90 days before and ending 90 days after the alien's period of employment.  The third attestation affirms that the employer has taken good faith steps to recruit United States workers for the same position the H-1B worker is to fill.  It also provides that the employer advertised the job using industry-wide standards that offered compensation at least as great as that to be offered the H-1B applicant.  Finally, this attestation requires H-1B employers to affirm that they actually offered the job to any United States worker with the same or better qualifications as the H-1B applicant.

The Department of Labor's review of the application is strictly limited to obvious inaccuracies and the law requires DOL to certify LCAs within seven days of filing.   But DOL is taking substantially longer than seven days to process these applications.  DOL expects these delays to improve somewhat in the coming year.

The employer must keep LCAs, prevailing wage determinations and actual wage determinations on file during the entire period of the alien’s employment.

Filing the Application

The employer must not file the I-129 petition with H Supplement more than six months before the date of commencement of the alien’s services.  The petition and supplement must include a letter of support and supporting documentation. 

The letter of support should include:

The supporting documentation should include:

INS processing time varies by processing center from as quickly as two or three weeks to as long as three months to grant or deny an H-1B petition with a complete, accurate filing.

I-129 Petition

The INS should take about 14-21 days to process the I-129 petition from the date the petitioner files. INS is taking not too much longer than that except in California where it is taking about three months to process an H-1B application (as of 3/99).  INS should send Receipt Notice of Action on INS Form I-797.  If INS is not satisfied with the application, they will send a letter requesting more information or the clarification of a fact. If INS approves the application, it sends an Approval Notice Of Action with about 14 to 36 days (three months in California).

If the application is denied, the employer may appeal to the INS Administrative Appeals Office. If the denial is based on the employer’s failure to provide sufficient information, the INS must notify employer of its intent to deny the application and give the employer an opportunity to provide that information before issuing a final decision.

The Beneficiary’s Admission

An alien outside the United States with an approved I-129 petition may be admitted through a United States Consulate that issues the actual visa. The alien is entitled to admission to the United States for a period of time equal to the time listed on the H-1B approval notice. United States consular officers sometimes limit the visa validity to the period of visa validity available to US citizens obtaining visas to enter that country for similar activities. For example, H-1B petition approval notice states three years, but the alien’s country of residence allows US temporary skilled workers maximum visa endorsements of one year. The consular officer at the consulate in the alien’s home country may issue an H-1B valid for only one year. But the alien is entitled to three years. Suggest that the alien politely request an H-1B valid for the full period listed on the approval notice and show a letter from the employer that requests the alien’s admission for the full period approved and cites INS rules. Additionally, the alien may request to speak with consular supervisors. 

When Employers Must File A New Application

An employer must file a new H-1B application if there are material changes in the circumstances of employment. Generally, the change in employment is considered immaterial if the alien employee is promoted to a higher position within the same occupation (provided he or she is to use the same academic training required in the former position), transferred to a new work location covered by the same Labor Condition Application, or if there is a change in ownership where the new owner assumes substantially all of the assets and liabilities of the previous employer.  Material circumstances requiring a new H-1B application include transfer from one employer to another, transfer from one firm to another within the same company, changed job duties and mergers.

Changing And Adding Employers

An H-1B alien may change employers or add an employer while in the United States, but only if the new employer files a new petition for the alien.  The alien may not begin work for that new employer until receiving notice of approval on form I-797.  An additional new employer may petition for a skilled worker currently under H-1B status to work additional hours for that new employer concurrently with the skilled worker's existing employment by indicating 'new concurrent employment' on Form I-129 under Part II.

Extensions Of Stay

An employer may extend an H-1B for three years.  To do this the employer must file a new I-129 and H Supplement with the INS Service Center with jurisdiction over the alien’s US place of residence.  The new application must include letter from United States employer describing the alien’s current job duties, hours of work and salary, whether any terms or conditions of employment have changed, reasons for the extension, detailing the alien’s periods of stay over the preceding three years, and specifying the date to which the extension is requested.   Employers should remember that a new, valid Labor Condition Application is required from the Department Of Labor.  And unfortunately if INS denies the application for extension, no appeal is available from the denial.  It is also notable that if the employer received a prevailing wage determination from a State Employment Services Agency that was a Level I wage, it will almost certainly be found to be a Level II wage when the second wage determination is sought because the employee/beneficiary already worked at the position for three years.