US employers willing to sponsor foreign employees for H-1B visa must understand all the steps involved in the process of preparing and filing the petition for a nonimmigrant worker. Generally, H-1B petitions are filed in the beginning of April for employment that shall start on October 1 of the same year. However, in order to be able to file the petition in April employers must comply with certain preliminary requirements.
First, the employer must determine the prevailing wage they have to pay the H-1B employee for the specific occupation in the geographic area. Employers can request the prevailing wage from the Department of Labor by submitting an Application for Prevailing Wage Determination. Alternatively, employers can obtain the prevailing wage from the Foreign Labor Certification Data Center Online Wage Library (www.flcdatacenter.com). This database includes four wage levels for each listed occupation in all geographic areas.
After obtaining the prevailing wage, employers have to file the labor condition application (LCA) with the Department of Labor. Employers cannot file the H-1B petition without a certified LCA. The United States Citizenship and Immigration Services and the Department of Labor require US employers to file the LCA in order to ensure that the employment of the H-1B employee will not adversely affect the wages and working conditions of US workers.
The LCA is filed online through an electronic filing system (www.icert.doleta.gov). If the LCA is complete and there are no obvious inaccuracies, the Department of Labor has to certify the LCA within seven days from the date of filing the application. Employers shall file the LCA at least three or four week before filing the H-1B petition because sometimes the online system does not recognize certain information submitted by employers, and employers have to send additional verifying documents. For example, sometimes the online system does not recognize the Federal Employer Identification Number, and employers have to submit additional proof showing that the number is a real one.
After obtaining the certified LCA, employers can file the H-1B petition and supporting documents with USCIS. The filing period for H-1B petitions starts on April 1 of each year for employment starting in October of the same year. Generally the annual cap on H-1B visas is met within a few days after the start of the filing period. Hence, employers shall file the H-1B petition as soon as possible after the start of the filing period. The petitions received within the first five business days will participate in the lottery, and the winners will get the H-1B visa. Even if the applicant meets all the requirements and the employer has filed the H-1B petition on time, it is not guaranteed that the applicant will get the H-1B visa as the winners are selected during a lottery conducted by USCIS.
The H-1B petitions are usually processed within a couple of months after the lottery. If employer requests premium processing, the cases are processed within fifteen calendar days. Sometimes USCIS may request additional evidence before making the final decision on the petition. Additional evidence is usually requested when the employer is a newly established company, the employer has not submitted sufficient evidence to show that the occupation is a specialty occupation or the employee does not have sufficient qualifications for the position.
In order to file the H-1B petition without complications employers shall start the preparation several months before the filing season. This will ensure that the petition is ready by the filing deadline and will increase the chances of the final approval of the petition.
Call our office at (310) 943-1171 or contact us via email at info@kaass.com to schedule a free consultation with a Los Angeles immigration attorney.
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