The first step is to get a prevailing wage determination. In our experience, the easiest way to get this done is through www.flcdatacenter.com. Or, the employer can ask the State Workforce Agency for the prevailing wage by giving the job title, job duties, education/experience requirements, etc., in a prescribed format. Another option is to use wage surveys published in the preceding 24 months. The employer can also use a union contract negotiated by a bargaining representative. Yet another (and the most time-consuming) option is for the employer to have a custom wage survey commissioned.
The next step is to obtain a Labor Condition Application (LCA) approved on line. Concurrently, the employer should do the required posting as well.
Then the petition package that includes all the required forms, the LCA, and documentation about the employer/alien/job opportunity, should be submitted to the USCIS, along with the required filing fees.
If the petition is non-frivolous and the foreign national (beneficiary) is lawfully in the US on a valid H1B status, then he/she can start working for the petitioning employer as soon as the petition is filed. Employers must make sure that the petition is complete and approvable and the employee meets all the requirements before deciding to start such employment.
The petition can be filed either with regular processing in which case it takes three to four months for an approval, or with Premium Processing (by paying an additional $1225 fee) in which case a decision is guaranteed in 15 working days. For petitions filed with Premium Processing, receipts and other communications (Request for Evidence, approval, etc.) are usually sent by USCIS by email and/or fax as well.
There are a lot of instances where USCIS may come back with a Request for Evidence (RFE) asking for more information/documents. This should be answered within the deadline.
Eventually, when the Petition is approved, if it is approved with “change of status” (i.e., if the beneficiary is in the US on a valid non-immigrant status), he/she can: (i) start working for the employer right away if it is a H-1B transfer from cap-exempt employer to cap-exempt employer or from cap-subject employer to cap-exempt employer; OR (ii) on October 1st (as that would be the case if it is the first H1B Petition approved for the beneficiary and the Petitioner is cap-subject) or as soon as the Approval is received, if it is received after October 1st. If the beneficiary is overseas, USICS will send the approval for Consular processing to the US Consulate specified in the Petition and the beneficiary should apply for the H1B visa at such US Consulate.
The employer has several ongoing requirements. The most important of them is maintaining a public inspection file with information/documents relevant to the H1B Petition, including prevailing wage determination, posting notices and certification of posting, etc. Further the H1B employment of the foreign national should strictly be according to the terms of the petition. The employer’s failure to comply with these requirements could lead to penalties and an even a future ban against H1B filing.
For answers to frequently asked questions, click here.