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SUMMARY OF THE H-1B PETITION PROCEDURE
A.
Overview
The H-1 process is difficult and complex, and involves
interaction with four different government agencies. These agencies include the
following:
The state job office is responsible for analyzing the job duties
and minimum requirements for the job, and comparing the salary offered by your employer
with a "prevailing wage", the average salary in the area for other workers with
similar job duties.
The U.S. Department of Labor adjudicates the Labor Condition
Application ("LCA"), a statement by the employer that it has complied with prevailing wage and
other requirements.
U.S. Citizenship and Immigration Services (USCIS) adjudicates the
H-1 petition and provides an approval notice that reflects your right to work for the new
employer.
The State Department issues the H visas at a U.S. Embassy
or Consulate abroad.
In addition, the employer must comply with a variety of other
requirements such as posting job notices and comparing the salary of the potential H-1
employee with the salaries of others similarly employed.
B. Processing Time
Processing time for the entire H-1B process can take
several weeks or even months. However, those who are already in H-1B
status can begin working for their new H-1B employer as soon as the petition
is filed. The following is an estimate of
those processing times:
Attorney processing -- 1 to 2 days
LCA Approval by the U.S. Dept. of Labor -- Same Day
USCIS -- Several months, but that can be reduced to less
than 10 days
by paying a $1,000 "Premium Processing" fee
U.S. Embassy or Consulate -- It can take several weeks to schedule an interview at the
U.S. Embassy or Consulate. For the current wait times,
click
here. The H-1B petition must be approved by the USCIS before an
interview can be scheduled.
C. Procedural Steps
Obtaining H-1 status for a potential employee is not simply
a matter of preparing and filing an application. It is an involved process of complying
with government regulations that are designed to ensure that the H-1B employee is paid the
same as similarly employed American workers. The employer also must establish that the H-1 employee
is a professional with at least a Bachelor's degree in the specialty field, or education
and experience that is equivalent to a Bachelor's degree in the specialty field. Finally,
we must demonstrate that the job duties require a professional and that the job cannot
reasonably be done by someone who does not have the Bachelor's degree in a
specialty field or
equivalent education, training and experience.
Preparation and filing of an H-1 petition requires a complex series of
steps, which usually include the following:
1. Open the file, prepare the necessary forms, and
integrate the case into our internal processing, status, and billing systems.
2. Obtain a job description and minimum
requirements from the employer.
3. Prepare the Prevailing Wage Request and file
it with the state job office.
4. Prepare job notices and arrange for posting
them at each job site.
5. Obtain signatures on all forms that are
submitted to the Department of Labor and INS.
6. Compare the proposed salary with the salaries
of other employees who are similarly employed.
7. Prepare an internal memorandum and a file that
must be maintained by the employer as required by the Department of Labor.
8. Track the case with the
USCIS after receiving a filing receipt and case number.
E. Other Considerations
If you already have an H-1 visa, we will send
instructions for renewing your visa with the approval notice. However,
renewal is not required unless the previous H-1 visa has expired or is about
to expire. If you still have an unexpired H-1B visa (from a previous
employer) in your passport, you can use it together with the new H-1B
approval notice to gain reentry into the U.S.
If you have accompanying family members in H-4 status, it
is a generally a good idea to extend their status as well. A
person in H-4 status is not required to file an application to maintain that status
merely because the H-1B principal changes employers. However, we have
seen too many cases where dependents in H-4 status have gone out of
status because they wrongly assumed that their status expired on the same
day as the principal's H-1B. The
consequences of going out of status, even by accident, can be very severe,
including a ten-year bar from reentering the U.S. It is
therefore prudent in most cases to make sure the H-4 visas and I-94's expire
at the same time as the H-1B.
You may have H-1B petitions approved for more than one
employer at the same time. Filing a new H-1B petition does not automatically
invalidate the previous H-1B approval. However, employers are usually
advised to withdraw the H-1B petition and LCA as soon as the employment is
ended.
If you travel abroad (or are already outside of the United States)
while a new H-1B petition (for a new employer) is pending you have two options for returning. If you have
still have a valid H-1 petition, and have not yet terminated your prior H-1 employment,
you can return using the old H-1 visa, provided that you are still employed by the prior
employer at the time you reenter the United States. (See, for example,
page 6 of
USCIS
memo). However, we recommend that you do not
travel while the H-1B petition is pending unless you first discuss your travel
arrangements with the attorney handling your case. In the alternative, if you have
terminated your previous H-1B employment, we can send the approval notice to you by DHL to
your address abroad, and you can use it to reenter with your existing H-1B visa, or apply
at the nearest U.S. Embassy or Consulate for a new H-1 visa. You should
always check the
website of the U.S.
Embassy or Consulate where you will apply for local procedures.
Hopefully this memorandum will answer most of your questions. If not,
we look forward to discussing these issues further after receiving your
information and documents.
Copyright 2005 - 2009, Law Offices of James A. Bach
 
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