H-1B Visa Process

After a job is offered and accepted by the alien, the process of obtaining H-1B visa/status can begin. One can apply for H1-B visa/status six months prior to the commencement of the employment petitioned, but no earlier than this.

For example, if the starting date of your employment as H-1B holder is 11/30/06, then you can submit an application for H-1B visa as early as 5/30/06. It is important to apply for the visa as early as possible (for the time being, this means as early as 6 months before your start date) due to the fact that the H-1B quota is currently being used up very quickly. Given the constraint on
the H-1B quota, it is always best for employers or HR professionals to expedite the recruitment process and sometimes they may have to push forward the starting date of employment.

The following are regular steps involved in trying to obtain H-1B status:

  1. Finding the prevailing wage for the area of intended employment. First, we check the prevailing wage from a database on the DOL website. If that wage level is higher than the one offered by the prospective employer, then we will seek wage determination from an Employment and Security Agency in the state where the intended employment will be located; If the wage level is higher than the offered one, we may also search for other sources. Please note that in many cases finding the prevailing wage for a specific H-1B position may require professional advice from an experienced immigration attorney.
  2. Next, a Labor Condition Application (LCA) will be filed with the Department of Labor (DOL). This form will bind the employer to pay the prevailing wage, offer the same benefits to H-1B visa holders as other employees, and assure that employment of the alien will not negatively affect the conditions of the other workers, including strikes involving the worker’s occupation.
  3. After approval of the LCA by the DOL, the actual H-1B petition will be filed with the USCIS with all the necessary documents, fees, and information.

It typically takes two to six months for the USCIS to process an H-1B petition. For H-1B Premium Processing, it takes only 15 calendar days.