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H1B Visa — Nonimmigrant Worker
The H-1B is a nonimmigrant or temporary visa that is good for 3 years initially and can be renewed for an additional 3 years and even more in certain cases. This is an employer sponsored visa. The employer is not required to prove that there are no U.S. workers available to do the job. The employer must prove:
1. the position is a professional position, i.e., it requires an individual with at least a four year bachelor's degree or equivalent. (USCIS equates 3 years of experience to 1 year of college; and
2. the prospective foreign national has the required degree or equivalent experience.
The H1-B process begins when a Labor Conditions Application (LCA) is filed with the Department of Labor. The LCA indicates that the prospective employee is being paid the prevailing wage (in order to protect U.S. workers and individuals in the same position from being underpaid) and that no U.S. worker has been displaced. The specific survey or basis for the wage must be identified and the wage paid to the employee must be at 100% of what is considered to be the prevailing wage.
The LCA is submitted electronically to the Department of Labor. Approval takes a minimum of 7 days. A copy of the LCA is then posted in two conspicuous places in the employer's offices for ten consecutive days.
The next step in the H-1B process is to file form I-129H, Petition for Nonimmigrant Worker, with a regional Service Center of U.S. Citizenship and Immigration Service (USCIS). A letter of support from the employer explaining the nature of the business as well as the nature of the job and a brief description of the employee's duties must be sent with the petition as well as copies of the prospective employee's diploma(s) and information regarding his/her current immigration status.
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