Read part three here
H-1B Classification
The H-1B classification serves as the main basis for the H-1B visa/status. The application for classification can only be made by the employers by filing H-1B petitions with the USCIS. The USCIS is tasked with reviewing those petitions, and it either accepts or denies the application.
H-1B status
Normally, the employer request for H-1B status or H-1B visa along with the petition for H-1B classification. The question as to what between these two will the employer ask for will depend upon whether the employee is inside the USA under valid status or is outside the USA. For a student inside the USA, his employer will request H-1B status along with H-1B classification. The same applies to the worker who has previously obtained an H-1B classification and his employer is re-applying for it. The granting authority here is USCIS and CBP, again depending on if you are inside the USA or asking port of entry to the US. In both cases, an I-94 will be issued showing H-1B status.
H-1B Visa
On the other hand, an H-1B visa enables its holder to present himself at a US port of entry and ask for permission to enter the USA. When the worker is outside the USA and his employer applies for H-1B classification, after the approval of the petition or H-1B, the employer will request USCIS to transfer the H-1B approval to a US consulate in the worker’s home country. The worker would then apply for the H-1B visa based on the employer’s approved petition. After getting the visa, the worker can fly to the USA and will have his H-1B status issued by the CBP on his entry to the USA.
Note that a visa can never be issued inside the USA. So when a student turned worker under valid H-1B status goes outside of the USA without having an H-1B visa, he will have to apply for an H-1B visa in his home country should he want to get back to the USA. The reason is that H-1B status, as provided by I-94, only enables a worker to be under a valid status in the USA and work under that status. Conversely, the H-1B visa determines the period or which a foreign worker may represent himself at the port of entry.
H-1B Visa Process (For Cap-Subject Petitions)
The process starts with registration with the USCIS through H-1B electronic registration process. After the registration, the lottery takes place on a given date and the selected employers win H-1B numbers for particular employees. After the first selection process, the employer will have 90 days to have the H-1B petition filed. Usually, the employers prepare related documents, including the LCA or Labour Condition Application in the meantime.
H-1B electronic registration process
Under this process, prospective petitioners (also known as registrants), and their authorized representatives, who are seeking to employ H-1B workers subject to the cap, complete a registration process. The registration process only requires basic information about the prospective petitioner and the worker. For the Fiscal year 2023, the initial registration period for FY 2023 will open at noon Eastern on March 1 and continue until March 18. Prospective petitioners (also known as registrants) must use a “registrant” account within myUSCIS to submit registrations. After they select “I am an H-1B registrant” account type, registrants will not be able to add additional information until the initial registration period opens. Representatives can create an account at any time by using the same kind of account already available to the representative. However, both the client (prospective registrant) and the attorney will need a USCIS online account for the H-1B electronic registration process. If an attorney already has an existing legal representative account, the account will work with the H-1B electronic registration process. As the selection process starts only after the closing date, there is no need to get registered on the first day. By March 31, USCIS intends to notify the selected registrants after an electronically held lottery.
However, the employer or the representative shall not:
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- Submit multiple registrations for the same beneficiary.
- Must not unfairly increase chances of selection of the beneficiary.
- Must not submit false attestation as to any information provided.
- There are no duplicate registrations.
The fee is USD10 for each registration, which will accommodate a single beneficiary worker.
Obtaining LCA
Labour Condition Application is a must-needed document for filing H-1B Petition. The LCA The employer may get it following three steps:
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- Obtaining a prevailing wage: The wage rate that the petitioner will input in the LCA must be higher than the actual wage rate or the prevailing wage rate. The actual wage rate is that which the employer pays to all other individuals with similar experiences and qualifications who are performing the same job. Prevailing wage is that wage that is predominantly paid to the workers in the same occupational classification in the area of intended employment at the time of the application. The DOL encourages the petitioner to obtain a prevailing wage from the National Prevailing Wage Center or NPWC.
- Filing LCA with the Chicago National Processing Centre: Employers have to submit LCA Application forms ETA-9035 and ETA-9035E to the DOL through the FLAG system attesting to compliance with the H-1B program. The application is submitted specifying conditions of H-1B employment, such as location, wages, work hours, level of supervision, job duties, and other conditions as required by DOL. If the information does not exist or contradicts DOL records, DOL may deny the LCA without looking at its substance. For example, if the employer has never filed an H-1B petition or used the ICERT electronic filing tool before, DOL may fail to get the employer’s FEIN. This may result in a denial of the LCA. DOL will provide a list of documents to be filed to overcome the denial. Employers may prepare for this ahead of time and have the following documents read.
- Process of the LCA: LCAs are reviewed by the DOL within 7 working days. The employer may check the status by logging into the flag system.
Another important thing is that the employer must prepare a public access file after the LCA is filed within one day of filing the LCA. Employers should keep the Public Access file at the designated location. It should include,
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- Copy of an LCA Application.
- Wage Rate Memo.
- Actual Wage Memo and Prevailing Wage Memo.
- A Summary of Benefits.
