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INS will not approve an application you submit because you must have
an offer from an employer and the employer must file the petition on
your behalf. 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), you must file a new H1B visa petition. The visa is only
valid for work with the employer that filed the original petition.
In order to qualify for this type of visa, you must have a four-year
college degree or the equivalent education and experience. Your
employer does not have to prove that there are no available U.S.
workers for this position. However, the job offered must require a
four-year degree. You will be denied an H1B visa if you have a
four-year degree but the job does not require one.
Also, you must prove that your education is equivalent to
the minimum requirements of a U.S. bachelor's degree.
Sometimes work experience can be substituted for part of a
degree. There are organizations that specialize in certifying
your credentials for a fee. For example, if your actual
education amounts to only two years of college, but you have
three years of work experience, the evaluator may determine
that your education and experience add up to a four-year
bachelor's degree.
Spouses and children under the age of 21 may be eligible to come to
the U.S. for the duration
of the H1B's authorized stay and will be granted H-4 visas. The H-4 will not allow them to work. Dependents
under the age of 21 are allowed to attend college and school.
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There are several steps in obtaining an H-1 B Visa:
· Prospective employers must obtain a Labor Condition Application (LCA)
and have it certified by the U.S. Department of Labor before the H1B
petition can be filed.
· 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.
· Once the prevailing wage has been determined, then the LCA can be
submitted. 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.
· The form is then mailed or faxed to the Department of Labor and
they return a certified copy to the employer.
· The employer must post notices at two conspicuous places at their
business of the H1B filing for ten 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 the employer can
file your H1B petition. If you are out of the country, the INS will
send notification of your approval to the U.S. consulate in your
country and you can apply there using the I-129 form. Be sure to
provide supporting documents in your petition such as the accepted
LCA, educational transcripts, or a letter from employer describing
the position and licenses. The employer must include the fee for the
petition.
· 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, INS might approve the
petition sooner. However, employment cannot begin until INS has
issued the appropriate visa.
· If the employee is terminated, the employer is responsible for
the employee's return trip home.
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