H1B visa applications can be filed by the US employer (sponsor) using either the 'Regular' OR the 'Premium' Processing Methods.
* most companies now use the 'Premium' Processing method (see below)
* Important Note: H1B visa applications can only be filed by the US employer (not the individual/beneficiary). Foreign Nationals MUST first find a job with a US employer who will hire them and sponsor their H1B visa.
REGULAR H1B Filing / Processing method:
1. Offer & Acceptance of Employment - Employer files H1B petition.
An employer can be an individual, partnership or corporation. Applications are "job specific." If your situation changes (for example, you lose your job or change locations), your new employer must file a new H1B visa petition. The visa is only valid for work with the employer that filed the original petition. The USCIS requires employment letters which provide:
» Specific information addressing the positions held
» The exact duties of the position
» The exact dates of employment
» Information regarding the supervisors and co-workers of the beneficiary.
2. The 'Prevailing Wage' and actual wage must be determined and compared. The employer is required to pay the higher of the two.
The prevailing wage is determined by the State Employment Security Agency by completing a special form, which asks the employer for the responsibilities, skills and experience needed for the job. The actual wage is determined by comparing other workers in the same positions with the same level of experience.
3. File the Labor Certification Application (LCA).
This is a two-page form that contains information about the employer. By completing and signing the form, the employer is agreeing to pay the higher of the two wages, that the employment of this individual will not adversely affect the conditions of other workers and that there is no strike for their occupation at the workplace. Recently, Congress determined that employers must attest that they will offer H1B visa holders the same benefits as their other workers. This includes health, life, medical, retirement, stock options and bonuses.
Use the following:
Mail or Fax - Use Form ETA 9035
or
Online Application - Use Form ETA 9035E
Fax # 1-800-397-0478
Mailing Address: ETA Application Processing Center, P.O. Box 13640, Philadelphia, PA19101.
4. When the LCA is approved, the Department of Labor (DOL) will return a certified copy to the employer.
5. The employer must post notices at two conspicuous places at their business of the H1B visa filing for 10 days or provide notice of the filing to the collective bargaining representative for their employees.
The LCA form can be used for the actual posting as well. After the Department of Labor accepts the LCA, then your employer can file your H1B visa petition. BCIS Form I-129
6. H1B Petition assembled & filed with appropriate BCIS Service office.
The filing must include the required forms, fees, documents and information; form I-129, education & experience evaluation & documents, training certificates, professional memberships, resume, employment agreement and letter of support.
7. Wait for the petition to be processed.
Processing times vary depending upon service center and the visa. It could be up to a three- to four-month wait. If the employer can show a substantial need for the employee, USCIS might approve the petition sooner. Employment cannot begin, however, until INS has issued the appropriate visa.
8. Receipt issued by USCIS
The petitioner (prospective employer) is sent a receipt by the USCIS Service Centre which bears a 9 digit reference number pertaining only to that particular case, H-1B processing times and general information about the petitioner and foreign worker. This is the petitioner's first confirmation that the petition is in the adjudicating queue.
9. A notice is generated by the prospective employer and mailed to the consultant notifying him/her of this receipt and outlining information on processing times etc. The notice should warn the consultant not to resign from current employment, sell accommodation or make any major life changes until it is communicated that the H1B visa petition has been approved.
10. Petition Approval
Generally a case will be approved within or on the designated time frame outlined in the USCIS receipt. An approval notice (Form I-797) is issued to the petitioner. The Form I-797 shows dates of validity for the foreign worker to work in H1B status for the petitioner .
~ The H1B visa beneficiary then applies for personal and family visas at the Consulate.
~ Normally, people apply to the Consulate that is closest to where they live.
~ Visa processing normally takes 2-3 days, depending on the Consulate.
Once the passports are returned with valid H1B visa stamp, the Consultant and his/her family may enter the U.S. in ?H' status.
PREMIUM H1B Filing / Processing method:
The Premium Processing Service provides American Employers with the opportunity to obtain faster processing of a petition to meet their needs for a foreign worker.
Specifically, the USCIS will provide 15-calendar day processing to those who choose to use this service, or the USCIS will refund the Premium Processing fee and the relating case will continue to receive expeditious service.
However, there is an additional $1,000 filing fee paid to the Government for using this method.
The processing period that will be used to determine whether or not the USCIS meets the 15-day period will begin when:
~ the Form I-907 is delivered to the BCIS (at the appropriate address)
~ and will end upon the BCIS mailing of a notice.
The notice may be a notice of approval, request for evidence, intent to deny or notice of investigation for fraud or misrepresentation. If the notice requires the submission of additional evidence or of a response to an intent to deny, a new 15-day period will begin upon the delivery to the BCIS of a complete response to the request for evidence or notice of intent to deny.
The EXTRA fee for Premium Processing is $1000. The H1B Premium Processing fee may not be waived.
In addition to the Premium Processing fee, all filing fees relating to the BCIS Form I-129 must also be submitted. The Premium Processing fee must be submitted in a separate check or money order.
Steps To File a Request for Premium Processing:
Complete and sign Form I-907 , Request for Premium Processing Service.
Attach a separate remittance of $1000.
The I-907 may be forwarded to the ServiceCenter where your I-129 petition is already pending
OR
you may file the I-907 and I-129 together at the Service Center designated as the appropriate filing location.
In both situations the unique address shown on the Form I-907 should be used for proper delivery to the ServiceCenter's "Premium Processing Service
