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The H-1B category allows for the temporary employment of an alien as a professional in a specialty occupation. This is defined by the U.S. Citizenship and Immigration Services (USCIS) as an occupation requiring practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.
An individual cannot self-sponsor in this category. Employer sponsorship is required.
H-1B status is employer specific. It allows the employee to work for a specific U.S. employer for a specific period of time and in a specific location. Multiple employers are allowed as long as each employer submits a separate H-1B petition, which is approved by USCIS.
To be eligible for H-1B status, a foreign national must have evidence of:
a U.S. baccalaureate degree or higher;
a foreign degree equivalent to a U.S. degree, as evaluated by a recognized credentials evaluation service; or
a state license to practice the profession, or a combination of specialized training and/or experience which can be substituted for a U.S. degree
The H-1B application process requires a prevailing-wage determination, certification of a Labor Condition Application (LCA) by the Department of Labor (DOL), and processing by USCIS. The average time required for the various processes, once the hiring department’s paperwork has been received by ISSC, is as follows:
Prevailing Wage Determination: Seven to ten days.
Labor Condition Application: Seven days until certification is received from the U.S. Department of Labor.
Posting Notices: Must be up in the workplace for at least 10 business days.
USCIS Current Processing: Six plus months for regular processing.
USCIS Processing Time: Fifteen calendar days for premium processing.
Consular Processing: If the prospective employee is outside the U.S. and will enter the country as an H-1B, the U.S. consulate must first receive notification of H-1B approval directly from USCIS, a process that may take about two weeks. The applicant must also make an appointment for a visa interview, which usually takes about two weeks, and if security clearance from Washington is needed, this may take an additional three months or more.
It is important that this timing be considered when consideration is made for employment of an individual. If the prospective employee is in the U.S. on another visa type such as F-1 (for Optional Practical Training), or is outside the U.S. waiting to enter in H-1B status, it is essential to begin this process early. A prospective employee currently in the U.S. in H-1B status through another employer is eligible to begin employment at ASU if an H-1 B is filed before termination of the current employment.
A Labor Condition Application (LCA) must be approved by the U.S. Department of Labor before the H-1B petition can be submitted to USCIS. The LCA establishes that the hiring entity is providing the prevailing wage and fair working conditions and benefits for the intended employee. The employer must prove that there will be no adverse impact on the wages and working conditions of U.S. workers.
The law also requires that the employer of an H-1B be willing to pay the cost of a return to the foreign national’s home country if that person is terminated before the end of the contractual period.
Form I-129, petition for H-1B worker: $460. This fee must be paid by the hiring department, not the scholar
Anti-Fraud Fee: $500. This fee applies to all initial H-1B petitions (including change of employer petitions). It is not required for extensions. This fee must be paid by the hiring department, not the scholar.
Form I-539, application to extend/change status for dependents: $370.
Checks should be made payable to the Department of Homeland Security.