1. DO YOU NEED A H1B?

You don't just apply to the Immigration and Naturalization Service (INS) for H1B. A prerequisite to obtain an H1B is for the employer to file with the Department of Labor (DOL) a labor condition application(LCA) which includes certain attestations. Among other things, the employer must attest that it will pay its H1B worker the prevailing wage as determined by the State government agency (EDD - Employment Development Department).

If the Alien is in the United States and is in another nonimmigrant status, then the H1B approval from the INS will allow him to stay and work for the approved time period.

If the Alien is outside the United States, then the alien will need to take the Approval Notice from the INS and then apply the H1B visa from the appropriate U.S. Consulate.

If the Alien is employed with another US employer, then you must get the apply the H1B from the INS and get the Approval before the alien can switch to your company and work for you. The H1B only allows the alien to work for the company who petitioned the H1B for him/her.

2. Data Needed for H1B Petition

EMPLOYER DATA

• 1. Full legal name;
• 2. Federal employer I.D. number;
• 3. Address, phone & fax number;
• 4. Year established;
• 5. Current number of employees;
• 6. Gross annual income;
• 7. Net annual income;
• 8. Nature of business activity;
• 9. Name & title of official who will sign forms;
• 10. Employer letterhead (10 pages);

JOB DATA

• 1. Title of job;
• 2. Job duties (give full descriptions);
• 3. Basic hours per week;
• 4. Basic rate of pay;
• 5. Minimum qualifications for the job (degree/work experience);
• 6. Job title of alien's supervisor;
• 7. Number of workers alien will supervise;
• 8. Job unionized? ________Yes _______No;

PERSONAL DATA

• 1. Full name;
• 2. Address;
• 3. Date of Birth;
• 4. Place of birth;
• 5. Social security number;
• 6. Date of arrival;
• 7. I-94 number (copy needed);
• 8. Current status & expiration date ;
• 9. Resume (copy needed);
• 10. Prior H-1B Approval Notice (if applicable);
• 11. Copy of Employment Authorization (Practical Training);
• 12. Copy of diploma & transcripts;
• 13. Copy of license (if applicable);
• 14. Address in home country;

If H-4 (for family members) needed:

• 1. Name;
• 2. Date of birth;
• 3. Country of birth;
• 4. Social Security #;
• 5. Date of last arrival;
• 6. I-94 # (copy needed);
• 7. Currrent Nonimmigrant status and Expiration Date:
• 8. Passport- Country of issuance (copy needed);
• Valid to (m/d/y);
• 9. Foreign address;

3. H1B Temporary Worker Visa

What Does the Employer Do?

The employer must have a U.S. taxpayer identification number. Foreign businesses not established in the U.S. cannot use this visa to bring employees here.

Obtain an Approved Labor Condition Application.

The employer must prepare and file a Labor Condition Application (LCA) with the Regional Office of the Department of Labor (DOL). The LCA is a form which must be carefully prepared and posted in two conspicuous places at the work site. The form requires the employer to describe the position and salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and the giving notice.

Once the LCA is approved, the employer files a petition with the Immigration and Naturalization Service. The employer must document that the position requires the services of a person in a ?specialty occupation.? This means a person who is working in a professional position and who has a minimum of a bachelor?s degree or its equivalent.

What Are the Employer's Liabilities?

Completing the LCA is just the beginning. The employer must also maintain wage and hour records, as well as information concerning work­ing conditions for all similarly situated employees. Upon request, these records must be provided to DOL?s Wage and Hour Division.

If an employer does not document the wage, pay the required wage or maintain the required records, the employer could be liable for sub­stantial penalties including back pay and fines of up to $35,000 per violation. The employer could even lose the right to apply for H-lB visas as well as all other immigrant and nonimmigrant visas for up to three years. Effective December I, 1998, the INS requires the employer to pay a training fee of $1000 for each H-1 application and first ex­tension.

If the employer terminates the services of the employee prior to the expiration of the H-lB visa, the employer is responsible for paying the employee?s return transportation to his or her last foreign residence.

What Must a Dependent Employer Do?

A dependent employer is one who has employed more than the minimum allowed H-lB workers determined, by the size of the employer. The Dependent Employer must comply with the new attestation requirements if it has more than the minimum number of H-lB workers as defined by statute.

What Does the Employee Do?

The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The em­ployee must be able to show that his or her for­eign university degree is the equivalent of a U.S. degree by obtaining a credentials evaluation of his or her education.
 

If the worker is in the U.S. and currently holds a valid nonimmigrant visa status, he or she may apply in the U.S. for change of status to H-lB. For example, if he or she is in lawful student status (F-1), the worker may seek a change from F-1 to H-lB. This change only gives the person the ability to work in the U.S. for the sponsoring employer. If the worker needs to travel abroad, he or she will need to apply for an H-lB visa at a U.S. consu­late. Workers not in lawful status in the U.S. or those residing abroad must apply for an H-lB visa at a U.S. consulate.

What are the Employee's Liabilities?

Under current law, a person who fails to maintain status, such as engages in unauthorized employment or stays beyond his authorization period, may be required to depart the U.S. and may be ineligible to return, depending upon how long such condition existed.