The path to securing a coveted H-1B visa just got a little more complicated. The US government has implemented new rules designed to protect US workers and ensure foreign employees are paid fairly. Failure to meticulously follow these guidelines could result in your H-1B visa application being swiftly rejected.
Finding a Willing Sponsor
The first hurdle in obtaining an H-1B visa is finding a US company willing to sponsor your application. This could be your current employer or a new one. If you’re currently in the US on a student visa, discussing H-1B sponsorship with your employer could be a starting point. If that’s not an option, consulting an experienced immigration lawyer is essential to understanding your possibilities.
The Labor Condition Application: A Crucial First Step
Before a company can even consider filing your H-1B petition, they must secure a certified Labor Condition Application (LCA) from the US Department of Labor (DOL). The LCA is your employer’s promise to uphold specific regulations, including paying you the prevailing wage and ensuring the hiring doesn’t negatively affect opportunities for US workers.
To obtain an LCA, employers must navigate a series of detailed procedures, involving accurate job descriptions, wage verifications, and adherence to legal safeguards.
Understanding the Prevailing Wage
A key aspect of the LCA process is determining the prevailing wage – the standard salary for someone with your qualifications and experience working in a similar role and location. The government mandates that H-1B workers cannot be paid less than this prevailing wage.
There are several ways to identify the prevailing wage, with the most reliable being the National Prevailing Wage Center (NPWC) – this route offers employers peace of mind as it minimizes the risk of legal challenges. Other options include commissioning a wage survey from an independent source or using various legitimate, though potentially less reliable, reference points.
Completing and Monitoring the Process
Once the prevailing wage is established, the employer must complete and submit Form ETA 9035 through the Foreign Labor Application Gateway (FLAG) system. Employers must keep in mind the tight deadline of submitting no earlier than six months before the potential start date of employment.
The final step, once the LCA is certified, is for your employer to file the H-1B petition (Form I-129) along with a detailed employment letter and your supporting documents (educational qualifications, resume, etc.). Status updates on your petition are available through the USCIS website.
Don’t Get Caught Out
Changes to H-1B regulations are designed to create a more level playing field. Employers and potential H-1B visa holders alike must understand and carefully adhere to these rules to avoid delays or outright rejections.