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Visa Status For Temporary Professional Workers

The H-1B Process: How An Employer Obtains An H-1B For A Temporary Professional

 

The employer undertakes a two-step process:

1)  Applies for and receives a certified Labor Condition Application (LCA) from the

     Department of Labor (DOL).

2)  Applies for and receives an approval of an H-1B Petition from United States Citizenship

     and Immigration Services (USCIS) on behalf of the candidate it wishes to employ.
 

Step One: The Labor Condition Application

  • Employer must attest that:

       1)  It will pay the higher of what it pays its own similarly employed workers or what similarly employed workers in                 the area are paid.

       2)  The working conditions of its U.S. workers are not adversely affected.

       3)  There is no strike/lockout at the worksite in the occupation for which a worker is sought.

       4)  It has given notice to current employees that it intends to hire an H-1B worker.

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  • The DOL does not “approve” these attestations; only certifies its acceptance of them (i.e. that they have been properly completed) to create a public record of the employer’s attestations.
     

  • A strict set of requirements goes along with the LCA attestations; an employer must not only say it is going to comply with the above, it must follow through or it is violating the law.
     

  • If an employer does not comply, the DOL has a system in place to enforce and punish:

       1)  Available to the public.

       2)  Formal complaint and investigation mechanisms.

       3)  The DOL gives itself the power to go after an employer even without a public complaint.

Step Two: The USCIS Petition

  • The employer must submit a request to USCIS, proving that it has completed the above process and demonstrating that both it and the candidate qualify for the H-1B category.
     

  • Have to prove:

       1)  The need for someone who is a professional (i.e. the job requires someone with at least a

            bachelor’s degree in a field relating to the work to be performed).

       2)  The candidate it seeks to hire has the required degree (including an equivalency of a

            foreign degree) and any other qualifications required.
 

Note: The approval of the H-1B Petition does not necessarily qualify the candidate to commence employment. The employer must verify whether the candidate has been granted a change to or an extension of H-1B status, or whether the candidate needs to obtain an H-1B visa.

Need an experienced immigration attorney in Boston, serving Suffolk & Middlesex counties, who can help you obtain an H-1B Visa? Does your company need help getting H-1B status for your temporary workers? Contact us today at 617-723-7111