H1B Worker Visa Procedures

It is a new year and with the changing of the calendar comes the time for companies to contemplate hiring foreign talent as the filing deadline for H-1B worker visas is April 1. In the realm of H-1B worker visas there are many items one should consider when applying for the visa. The following is just a few of the preliminary items that one should consider when contemplating filing for an H-1B visa.

First is to be aware of the time frame that USCIS uses when filling H-1B visas. The fiscal year starts October 1 in any given year and a petition can be filed up to six months in advance on April 1. The cap fills up quickly; for the 2015 fiscal year, petitions were filed beginning April 1, 2014 and the filing period closed 5 days later. Normally if you want to hire a nonimmigrant foreign worker, the start date will be set as October 1 and a petition will be filed on April 1. Having filed at this time does not guarantee that your petition will be approved for the fiscal year that you have filed for. More applications are filed than there are visas in the H-1B cap. Those that file within the filing period will be entered into a lottery and the USCIS will select 65,000 applicants at random. Those that do not get selected will receive a refund of their processing fees.

Applicants with a master’s degree are subject to an exception. 20,000 visas are set aside for H-1B applicants with a master’s degree. Those who are not selected for the master’s exception will be included in the H-1B cap lottery. That is a total of 85,000 H-1B applicants in the fiscal year.

Second, you need to file a Labor Condition Application. A Labor Condition Application also asks for a prevailing wage determination and the wage that will be paid to the applicant. The employer attests that: H-1B nonimmigrants will be paid at least the actual wage level paid by the employer to all other individuals with similar experience, the employment of H-1B will not adversely affect the working conditions of workers similarly employed in the area of intended employment, here is not a strike or lockout in the occupation in which the H1b nonimmigrant will employed, and a copy of this application will be given the H-1B nonimmigrant and the workers already in the field. The Labor Condition Application is filed before the H-1B is filed so that you can attach the Labor Condition Application to the H-1B application.  A Labor Condition Application is usually filed in early March before the April 1 deadline for the H-1B applications.