H-1B TEMPORARY NONIMMIGRANT WORKERS
The H-1B visa permits the admission of professionals and "specialists" to be employed in the United States. An H-1B petition may be valid initially for up to three years, and a foreign national is allowed to apply for an extension of three years more of H1B status. Extension beyond six years is permitted in certain circumstances for foreign nationals applying for permanent resident status.
In addition to assessing admissibility, a three-step analysis is required to determine eligibility for an H-1B visa:
- First, it must be determined whether the proposed position for the foreign national is a professional or specialist occupation.
- Second, it must be proven that the foreign national is a professional or specialist qualified for the position based on his or her education and/or work experience.
- Third, the wages and working conditions offered the foreign national must satisfy the labor condition application (LCA) criteria.
An application for an H-1B visa requires the foreign national's prospective U.S. employer to submit a petition on Form I-129 with H Supplement, Form I-129W, a description of the terms of employment, proof of the foreign national's education and/or work experience or training, a certified LCA with the appropriate filing fee, and all other appropriate documents. The petition is filed at an USCIS regional service center having jurisdiction over the place where the foreign national will work. If the petition is approved, the CIS issues a Notice of Action of approval on Form I-797.
PERMANENT LABOR CERTIFICATION
A permanent labor certification issued by the Department of Labor (DOL) allows an U.S. employer to hire a foreign national to work permanently in the United States. In most foreign national employment situations, before the U.S. employer can submit an immigration petition to the U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA).
The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The DOL processes applications for Alien Employment Certification ETA Form 9089. The date the labor certification application is filed is known as the filing date and is used by the USCIS and the Department of State as the priority date. After the labor certification application is approved by the DOL, then it should be submitted to the USCIS service center with an I-140, Immigrant Petition for Alien Worker.
In order to apply for the foreign national, the employer must complete an Application for Permanent Employment Certification ETA Form 9089. The application describes the following:
- job duties
- educational requirements
- training, experience
- other special capabilities the employee must possess to do the work
- statement of the prospective immigrant's qualifications.
