Published December 2000

Securing visa for worker includes petition, fee

H-1B visas have been in the news lately regarding the concerns of employers who cannot find qualified workers in the United States. H-1B employment also is the topic of a new federal law. If your company is considering sponsoring a specialty worker, you may benefit from the following information.

n What is a non-immigrant H-1B visa? Non-immigrant visas are given to persons who live in another country and wish to come temporarily to the United States for a specific purpose. These visas are given to people such as tourists, business persons, students, diplomats and temporary workers.

Although not all non-immigrant visas authorize the recipient to work in the United States, an H-1B visa does include a work authorization. The H-1B is limited to workers who will be employed in “specialty occupations of distinguished merit and ability.”

Specialty occupations require theoretical and practical application of a body of specialized knowledge and an academic degree (at least a bachelor’s degree or its equivalent).

n How many H-1B visas are issued each year? Federal law provides for a maximum number of H-1B visas per fiscal year; this year, the visa cap was reached in March. According to a report by the Immigration and Naturalization Service (INS), “computer-related occupations accounted for nearly 54 percent of the total H-1B petitions processed October 1999 to February 2000.” Because of the increased demand for these non-immigrant workers, in October 2000 the limits were raised to 195,000 for the next three fiscal years.

n What do sponsoring employers have to do, and what is the fee? A sponsoring U.S. employer must petition for the visa on the worker’s behalf. The sponsoring employer files a Labor Condition Application (LCA) with the Department of Labor (DOL) attesting that the prevailing wage for the area of employment will be paid, working conditions of the employee will not adversely affect similarly employed American workers, the place of employment is not experiencing a labor dispute involving a strike or lockout and notice of the LCA filing has been posted in the place of employment.

The DOL reviews the LCA and certifies it. The employer then files an I-129 petition, the certified LCA, a letter of support and all required attachments and supplements with the INS. The employer also pays a fee, which recently was increased to $1,000. After INS petition approval, the worker may apply for the H-1B visa. Petitioning companies may need the assistance of an immigration attorney in this endeavor.

n How long can the H-1B worker work for the sponsoring employer? Approved non-immigrants initially are admitted for the approved period or a maximum of three years. Extensions of stay may be approved up to the maximum allowable continuous period of six years.

n Can the worker switch employers after being sponsored? Work authorization is employer-specific and only covers the activities described in the petition. An H-1B worker may change employers without affecting his/her status, but the new employer must file a new I-129 petition for the worker before he or she can start.

n What are an employer’s obligations if an H-1B worker is terminated? Employers must notify INS when an H-1B worker leaves the company’s employ before his or her visa expires so that INS may recapture those H-1B numbers. If the employer terminates the employment relationship before the end of the approved period, the employer must pay the employee’s return transportation costs.

n Where can an employer look for additional information? The government provides easy access to information at www.ins.usdoj.gov and employers can send e-mail to the INS for response at office.business.liaison@usdoj.gov. In addition, employers can call the INS directly or contact professionals who manage immigration issues on a regular basis.

Jack Goldberg is president of Personnel Management Systems Inc., with offices in Everett, Bellevue and Tacoma. The PMSI Web site is at www.hrpmsi.com.

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