This article is from the FAQ, by with numerous contributions by others.
I receive so many inquiries on this. So, here are some excerpts from
our files for you folks:
An H-1B classification is available, for a period not to exceed a total of
six years, to a foreign employee:
A. who will be incumbent in a temporary position
("temporary" is defined as that which is not permanent, or that
which is for a definite term as opposed to an indefinite term);
B. who will perform services in a specialty occupation
(Most professional jobs are classified as "specialty occupations");
C. on whose behalf the employer has obtained an approved Labor
(A Labor Condition Application serves, amongst other things, to
ensure that the employer is not paying less than prevailing wages).
H-1B Visa (Procedure)
1. Obtaining Labor Condition Application ("LCA")
a. Obtaining Prevailing Wage Determination
We first need to obtain a prevailing wage determination from
the local employment office that has jurisdiction over the
geographical area of employment. Having obtained the prevailing
wage for the offered position we will then file an LCA with
Department of Labor.
b. Applying to the U.S. Department of Labor
An LCA is an application to the U.S. Department of Labor
("DOL"), whereby an employer assures the DOL that hiring
of a foreign worker would not be detrimental to similarly
situated U.S. workers. DOL will routinely approve the
LCA if it is completed and signed. The approved LCA will
then be sent back to us for filing with the
Immigration & Naturalization Service along with
the petition for H-1B classification.
2. Filing with the Immigration & Naturalization Service ("INS")
Filing with the INS entails submitting proof of the employee's
qualifications and of the offered job conforming to the
criteria explained above in this letter. Additionally,
certain forms will be submitted describing the job and
providing certain basic information about the employer.
Application to the INS is the last step in the H-1B classification
process. On rare occasions INS may require further documentation
to prove various elements of H-1B classification.
What is Required of the Employer
1. Maintaining Documentation
The LCA process requires that the employer maintain in its office a
file containing documentation of various assertions that the employer
will be making in the LCA application. One example of this
documentation would be the prevailing wage determination that we
obtain from the local employment office. Please note, we are not
required to submit this documentation to the DOL, only to maintain it.
I will describe this documentation in further detail before we file
I may add that the employer's failure to comply with these procedures
could lead to, among other things, money penalties and imposition of
a ban on the employer against hiring other H-1B workers. The DOL has
indicated that it considers the entire process to be "complaint driven."
That is, unless somebody complains, the DOL will routinely certify
2. Other Liabilities
Under the regulations, if the employer were to dismiss the employee
during H-1B classification status, the employer could be liable to pay
the employee's return fair to his or her last place of foreign residence.
Please note that this liability continues only during the H-1B status.
Change of status to permanent residence or any other change of employee's
status, absolves the employer of this liability.