The H-1B, or specialty worker, visa is available to foreigners who will work in the United States in a profession requiring a bachelor's degree on a temporary basis. Only 65,000 are available each year. In addition, there are 20,000 H-1B visas for foreigners holding a master's degree.
The H-1B visas allow the foreign workers to start at the beginning of the fiscal year, October 1st. The employer may apply for the visa as early as six months before the beginning of the fiscal year, or April 1st. In the past few years, the trend had been that the Government received more petitions on April 1st than the number of available visas. Last year was an exception, as H-1B visas remained available through December.
Because of the timing issues, and the possibility that the recession is ending, employers would be wise to start the H-1B process now for employees who will start on October 1, 2010. The process includes not only filing the visa petition by April 1st, but also having the Department of Labor approve a labor conditions application ("LCA").
Through the LCA, the employer certifies that: (1) it will pay the the greater of the prevailing wage or the actual wage paid to other employees in the same position; (2) the
employment of an H-1B worker will not adversely affect the working conditions of US workers; and (3) there is no strike, lockout or other work stoppage because of a labor dispute.
The employer applies for Department of Labor approval of the LCA on-line. Prior to last year, the LCAs were being approved almost instantaneously. However, with the adoption of the iCert portal, the Department of Labor is now taking up to a week to approve the LCAs. The need for additional time should be factored in when preparing to apply for an H-1B visa.
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