H1B visa process is complex enough and can take up to several months to prepare the documents, file them and have them approved by the US Citizenship and Immigration Service (USCIS). That is why it is very important that you or your employer contact an immigration lawyer as soon as possible to initiate the H-1B process.
The H1B visa process consists of the following steps:
1. You need to establish an employee-employer relationship with the company you will be working for (your employer) in order to begin your H1B visa process.
A petition for H-1B visa can be filed by the US employer only (you cannot do it yourself without your employer’s sponsorship). So in order to qualify for this type of US worker visa you should find an employer, which will be willing to hire you and sponsor you by filing and following through with H-1B visa process. First, your potential employer should make you a job offer and you should accept it. Then your employer’s immigration attorney prepares an employment letter to USCIS specifying your position, duties, and dates of employment.
2. Your employer must give a notice about the H1B visa filing to the workers on or within 30 days before the date the employer’s immigration attorney files the Labor Condition Application (LCA) with the Department of Labor (DOL).
This notice should have information about the position for which an H-1B nonimmigrant worker will be employed, including occupational classification, wage, period of employment, and location of employment. This notice can be posted in one of the three ways:
• It can be given to the collective bargaining representative, or
• If there is no union, it can be posted as a hard copy at two conspicuous locations at the place of employment for 10 days, or
• Send electronically to all workers at the place of employment for 10 days.
3. Your employer’s immigration lawyer files a LCA with the DOL.
By filing this application (LCA), your employer agrees to pay you the higher of either “actual wage” or “prevailing wage,” and certifies that providing this position will not adversely affect the working conditions of other employed workers. The “actual wage” is the wage paid by your employer to other workers in similar positions with similar level of education and experience.
If there are no such positions in the company of your future employment, then you should be paid not less than “prevailing wage,” which is determined as either the wage stated in a collective bargaining agreement, or if there is no union there, then the “prevailing wage” means an average wage for similar positions with similar education and experience in a certain geographical area.
Once the LCA is approved, the DOL returns a certified copy to your employer’s immigration lawyer, who then files the H1B visa application for you on behalf of your employer.
4. Your employer’s immigration lawyer prepares and files the H-1B visa petition to USCIS.
The complete application package should contain the necessary forms, fees, supporting documents and additional information, including, but not limited to: Form I-129, diplomas and other education documents, licenses and certificates, evidence of professional membership, CV, employment agreement and letter of support.
5. USCIS processes your H1B visa application filed by your employer’s immigration lawyer.
When USCIS receives your complete H1B application, it sends your employer’s immigration attorney a receipt containing a 9 digit reference number. This is your case number. Now your employer’s immigration lawyer can check your status, your H1B processing queue and communicate with USCIS about your case if needed.
The H-1B processing time varies depending upon a particular service center and your specific H1B visa related circumstances. It can take several months to get your H1B visa petition processed and approved, if you use the Regular Processing Method. Take a note, that you can start working for your employer only after USCIS approves your application and issues you an H-1B visa. Your employer can file your H1B application with USCIS up to six months before your employment begins.
The H1B Visa Premium Processing Method
Alternatively, your employer can speed up the whole H1B visa process by using the Premium Processing Method (Form I-907). In this case your employer (or you) will have to pay an additional $1,225 fee for the expedited service, and USCIS will make a decision on your H1B visa application within 15 days.
As a result of this premium H1B visa process, USCIS can send you a notice of H-1B approval, request for evidence (RFE), intent to deny or notice of investigation for fraud or misrepresentation. If you (or your employer) are supposed to submit any additional evidence, a new 15-day period will start after USCIS receives your complete response with additional evidence.
6. H1B visa petition approval.
Usually your petition is processed and approved within the time indicated on your USCIS receipt (you or your employer’s immigration attorney can always check your processing queue updates on the USCIS website). When your application for H1B visa is approved, USCIS will mail an approval notice (Form I-797) to the petitioner’s immigration attorney. The H1B visa approval notice indicates the period within which you can work for your employer as an H1B worker.
7. Applying for H1B visa.
After your H1B visa application is approved and you get an approval notice (Form I-797), you and your family members (spouse and children under 21) can apply for H1B visas at the US Consulate. Usually, people apply at the closest to them US Consulate and it normally takes 2-3 days to issue the US visas.
It should be noted that all applications processed with USCIS are subject to security clearance procedures that can further delay the H1B visa process.