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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
