The H-1B is a temporary working visa for professionals or “specialty occupation” workers, such as accountants, engineers, computer analysts, etc. The petition for an H-1B visa must be filed by the employer. An individual cannot obtain this visa on his/her own. The following is a brief description of the procedures:
1. Prevailing Wage Determination
The employer must agree to pay the employee the “prevailing wage” for that occupation in that geographic location where the employee will be working. There are several ways to determine the prevailing wage. The most common way is to have it determined by the Employment Development Department (EDD) by filing a 'prevailing wage request' with EDD.
2. Labor Condition Application
The employer must prepare and file a Labor Condition Application with the Regional office of the United States Department of Labor. Filing the LCA places certain legal requirements upon the U.S. employer. (1) The employer must notify its other employees by posting a copy of the LCA in two conspicuous places at the work site. (2) The employer must maintain records of the LCA posting, the wages paid to the H-1B employee and wages paid to similarly situated employees. The employer must also maintain records on how it determined the prevailing wage for the position at the time it filed the LCA. Upon request the employer must provide these records to the Wage and Hour Division of the Department of Labor.
If an employer fails to document the basis for the prevailing wage determination or fails to maintain the required documentation, the employer could be liable for substantial penalties including back pay and fines up to one thousand dollars ($1,000.00) per violation. Other administrative penalties might be levied against the employer, such as being prohibited from filing any further H-1B petitions for a one (1) year period.
The filing of the H-1B petition places additional obligations upon the employer. Most notably is the obligation to pay the return-trip transportation cost for each employee terminated prior to the expiration date of the H-1B visa.
3. Filing the Petition with INS
For an H-1B petition the employer must document that the position offered requires the services of a person in a "specialty occupation." This means showing that a person who is working in a professional position has a minimum of a U.S. bachelor's degree or its equivalent, and that the position, taken as a whole in the industry, requires a bachelor's degree in a related field as a minimum entry level requirement. An applicant who is not already work authorized may not begin employment until the petition is approved by both the DOL and the INS.
As with any nonimmigrant visa, the H-1B classification is a temporary visa with specific limitations on the duration of stay in the United States. The initial period of stay in this classification is limited to three (3) years, but it may be renewed for a subsequent three (3) year period by filing another petition with the Immigration and Naturalization Service. After six (6) years in this classification the employee must spend one (1) year outside of the United States before they can have another H-1B visa.
Spouse and Children
The H-1B employee's spouse and unmarried dependent children under twenty one (21) years old may be granted an H-4 visa. An H-4 visa holder is not entitled to work in the United States. They may, however, attend school.
Transferability
An approved H-1B petition is not transferable to a second employer or a second job with the same employer. If a foreign worker accepts a new job, he or she must begin the entire process again. Additional DOL approval may be required if the employee works in a different job location during the period of H-1B employment.