H1B Visa in a Nutshell by klutzfu60

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									                                  H1B VISA IN A NUTSHELL

Reserved for "specialty occupations", the petitioner seeking an H1B must establish that the job
requires the services of a professional, that the foreign worker qualifies as such a professional,
and that a labor condition application has been certified by the Department of Labor.

To protect the salaries of foreign nationals, employers are required to pay the higher of either the
actual or prevailing wage. The actual wage is the wage paid to other co-workers in similar
positions; the prevailing wage is the average salary paid to workers in the area of intended
employment. The prevailing wage is often obtained through a request to the employment
economic agency in the employer’s state. However, other sources of prevailing wages are
permitted and may be used.

As part of the H1B application process, the employer must make certain promises. In addition to
promising to pay the higher of the prevailing or actual wage, the employer promises that hiring
an H1B worker will not adversely affect other co-workers. Furthermore, the employer attests that
it will take certain action in the event of a strike or lockout and that it has provided adequate
notice to other workers about its hiring a foreign national.

The final step of the H-1B petition process involves submitting the package to the USCIS. The
USCIS normally takes about 2 – 4 months to process, review, and adjudicate an H-1B petition.

The H-1B visa has the interesting characteristic of permitting dual intent. Unlike many other
visas, a holder of an H-1B visa may intend to be in the U.S. for a temporary and permanent
period of time. Thus, during the duration of their H-1B visa, many individuals apply for a green
card and hope to adjust their status to become a permanent resident.


The steps to obtaining an H-1B visa

The basic chronology of an H-1b application is as follows.

   1. A prevailing wage study must be conducted for the job position. The employer is
      required to pay the higher of either the prevailing wage or the actual wage that the
      employer intended to pay the alien worker. A prevailing wage can be obtained from a
      State Employment Security Agency (SESA) by completing a form which asks for the
      responsibilities, skills, experience, as well as other factors required for the job.

       An analyst at the SESA will refer to salary surveys on hand and match the job description
       with their surveys and come up with a salary that s/he believes is an accurate reflection of
       the industry.

   2. The next step is to prepare the Labor Condition Application (LCA). The LCA contains
      basic information about the employer. It also contains spaces for the prevailing wage
      determination and for the salary that the employer wants to pay the foreign employee. In
      addition, there are four attestations which the employer makes.

      By signing the LCA, the employer is promising to pay the higher of the two wages, that
      the employment of the foreign worker won't harm the working conditions of similarly
      employed individuals, that there currently is no strike in progress, and that notice of the
      filing of the LCA was provided to individuals at the workplace.

   3. The USCIS form that is used in the H-1B petition is the I-129 and H Supplement. In
      addition to the forms, supporting documents must be prepared to be submitted along with
      the forms. One of the key supporting documents is a letter from the petitioning employer.
      This letter will describe the position offered and detail how it is considered to be a
      specialty occupation. It also explains how the foreign worker is qualified to fill this
      position given his/her background, education, and skills. The letter will also provide
      terms of the employment providing the salary and the duration of the employment.

      Other useful documents to include in an H-1b petition are diplomas, transcripts and
      licenses, all of which are designed to show that the foreign worker is qualified to perform
      the responsibilities required for the job.

      The H-1B petitioner takes these supporting documents, the I-129 form and H
      Supplement, the certified LCA, and the appropriate filing fee and sends it to an USCIS
      Service Center. Upon receipt of the H-1B petition package, the Service Center will send
      the petitioner a Notice of Receipt indicating their receipt of the petition and include an
      approximate processing time. At this point, the petitioner and foreign employee must sit
      and wait for the Notice of Approval (I-797B).


Please Note!

      •   Plan several months in advance when requesting an H-1B. Paperwork delays in
          large bureaucracies (INS, DOL) can be commonplace. In cases where there is
          no previous H visa, the nonimmigrant professional is eligible to begin
          employment only upon receipt of an APPROVED H-1B petition.

      •   If the applicant has had a previous H visa and remains in the U.S., a new H can
          be petitioned for and the applicant can start work as soon as the petition is
          submitted - This is called Portability Law.*

      •   If the applicant is currently in the U.S. on Optional Practical Training,
          employment may begin and continue until Practical Training expires.
          Employment must stop if the H-1B has not been granted and the practical
          training period expires.

      •   Nonimmigrants on H-1B status are eligible for a total maximum stay of 6 years.
          The initial H-1B petition may cover a period of up to 3 years. It may be
      extended, before the expiration date, to a total of 6 years.

•     H-1B is "employer and job specific." Before an H-1B nonimmigrant changes
      jobs, a new H-1B petition must be filed by the new employer. (see Portability
      Law above)*

    • If any substantial changes in the H-1B's employment occur (such as new
      location, different duties, change in title, change in source or amount of salary,
      etc.) please notify OIP immediately. INS regulations require the employer to
      notify INS of such changes.

    • H-1B nonimmigrants pay Social Security Tax, as well as state and federal tax.

•     H-4 family members may have no employment, including assistantships and
      student employment.

    • H-1B applications may be submitted to INS up to 6 months in advance. The H-
      1B applicant may enter the U.S. only 10 days before the date requested. Arrival
      before this time requires a visitor's B-2 visa with Consular notation that change
      of status will be effected in the U.S. A change of status application in the U.S.
      can take as long as three months.
                                              H-1B PROCESS

Employment Visa Specialist       EVS prepares Prevailing           SESA determines the            The Notice of the filing of
(EVS) and applicant collect     Wage request form for State      Prevailing Wage based on        the LCA must be posted in
  initial documentation as      Employment and Security          salary surveys within the         at least two conspicuous
  listed in I-129 Checklist          Agency (SESA)                 state of employment           locations in the employer's
                                                                                                 establishment/s in the area
                                                                                                  of intended employment.
                                                                                                 The notice must be posted
    EVS submits the H1B                                                                         for 10 days but the first day
                                                                 The Check Request form for       of the posting must start
  petition to USCIS Service
                                   EVS and the applicant          H1B Filing Fee - $320 and       BEFORE filing the LCA.
   Center. If the worker is
                                  complete and sign Form            Fraud Prevention and
currently in H-1B status with
                                  I-129 and assemble and           Detection fee - $500 is
   another employer, the
                                 review the petition packet      prepared and submitted for
worker may start working at                                                                        EVS prepares Labor
                                                                      1) an applicant’s
           this point                                                                              Condition Application
                                                                 Department approval, 2) HR
                                                                 approval, 3) A/P processing           (LCA) form

                                  If worker is in the US in
USCIS approval is expected       valid nonimmigrant status
   within 30 to 90 days.        other than H1B, the worker
                                can usually begin work for       Worker must get a new visa     Worker reenters with a new
 Expedited requests can be                                         stamp at consulate when      visa stamp and I-94 valid for
made by paying $1,000 for           petitioning employer
                                                                 leaving the US for the first    duration of the H1B status
   premium processing                                            time after USCIS approval       noted on USCIS approval
                                                                   unless worker already in      notice. Any changes in the
                                                                          H1B status            employment should then be
                                 If worker is outside the US,
                                                                                                  reported to HR and EVS
                                EVS will advise the applicant
                                on applying for the visa at US
                                Consulate abroad. The H-1B
                                 applicant may enter the U.S.
                                 only 10 days before the date
                                          requested.
                                                                                                  I-129 Checklist
                                                                                                        Version 1.02



I-129 Documentation Checklist
The I-129 petition for H1B status must include documentation that supports the nature of the
position as a specialty occupation and that proves the applicant meets the criteria for the position.
Additionally applicants should be able to document how much time has been spent in the US in
previous non-immigrant statuses that may impact the eligibility for the current H1B application
and the length of stay under H1B status.


DEPARTMENT CHECKLIST
The following documentation is required from the department to determine the prevailing wage,
file the Labor Condition Application with the Department of Labor, and to prepare official U.S.
Citizenship and Immigration Services (USCIS) petition.
     Completed and signed the “Request to Initiate H1B” form.
     Letter of support detailing applicant’s degree and qualifications with emphasis on specialty
     nature of occupation (see template)
     KSU Offer Letter and/or Contract
     “Recruitment Efforts Overview” (see template for Faculty Personnel & Professional
     Occupation).
     Completed and approved Check Request form.

APPLICANT’S CHECKLIST
      H1B Applicant’s Information Sheet
      Certification of Copies
      Diploma indicating required degree 1
      Transcripts supporting diploma
      Credential Evaluation if non-US institution
      Letters of support from current/previous employers documenting experience required for
      position, if necessary 2
      Current CV/resume
      Documentation of non-immigrant history

1
  If applicant does not have required degree, then include diploma indicating highest education level achieved;
balance should be made up in documented experience
2
  Necessary only if job description indicates a combination of education and experience, or if the applicant does not
have the minimum education, but has the balance of experience to make up for it; letters should validate the required
years of experience


I-129 Checklist                                       Page 1 of 3                               Last Updated 11/27/2007
                                                                                                     I-129 Checklist
                                                                                                           Version 1.02


                  Current I-94
                  Current passport ID page
                  Passport Visa page(s)
                  All stamped passport pages documenting US stays 3
                  Any other applicable documentation of current and prior US status (DS-2019, I-
                  797, I-20, I-94) 4
      Translations of all non-English documents, certified 5


If requesting Premium Processing, include the following:
          Form I-907
          KSU or personal check for $1,000 6


If your passport is no longer valid, include the following:
          Letter of explanation


If this is your first H1B visa petition, or you are petitioning as a result of a change in employer,
include the following:
          KSU check for $500 for Fraud Prevention Fee


If dependents will be included on petition and both the applicant and dependents are already in
the US, include the following for each dependent:
          Form I-539 7
          Personal check or money order for $300, regardless of number of dependents
          Copy of I-129 being submitted above 8
          Documentation validating relationship to H1B applicant; marriage license, birth
          certification or adoption documentation

3
  Stamps, visas and I-94s in passport are used to validate the applicant’s eligibility for the H1B; if the applicant has
never worked in the US previously include any stamped pages that display travel to and from the US
4
  If applicant has only traveled to the US for pleasure and does not have any prior visa approvals this is not
necessary
5
  Certification and translation can be done by anyone other than a certified translator, but the translator must commit
their name and contact information to the translation
6
  Premium processing will be funded out of KSU Departmental funds on a case by case basis; if there is not a clearly
identified need for expediting usually the department will not fund
7
  I-539 is only required if the dependents are already in the US and need to request a renewal or change of status; not
necessary for dependents who are arriving with the applicant from outside the US
8
  If I-539 is being submitted after the I-129 include a copy of the I-797 Receipt Notice or Approval Notice for the I-
129


I-129 Checklist                                        Page 2 of 3                                 Last Updated 11/27/2007
                                                                                                   I-129 Checklist
                                                                                                          Version 1.02


           Current passport ID page


HR CHECKLIST
       Prevailing Wage Request (Guidelines for H-1B Job Description for Prevailing Wage
       Determination)
       Approved Labor Condition Application: ETA-9035A
       Form I-129
       KSU check for $320
       Copy of most recent KSU Financial Report 9
       Cover letter with supporting document inventory from HR




9
    Used to document that KSU is exempt from the Filing Fee due to status as an institution of higher education


I-129 Checklist                                        Page 3 of 3                                Last Updated 11/27/2007

								
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