How does an employer get the H1b process started?

How does an employer get the H1b process started?

The first part of the H-1B visa process is to obtain a Labor Condition Application for the position with the Department of Labor.  When dealing with H-1B visas, you have to calendar carefully and work your way backwards from the filing date.  H-1B visas become available every year on October 1st.  There’s typically a lottery because the Immigration Service receives more H-1B applications than they have spots for.

There are 65,000 H-1B visas available every year and if you want to obtain one, you have to make sure to get it then 6 months ahead of time or April 1st.  Immigration lawyers are typically very busy in February and March of each year in order to comply with that April 1st deadline.  If you don’t get your application along with everyone else, you won’t be able to participate in the visa lottery and your employee will probably not be able to come and work for the employer.

How do we do that?  If we know that we have to file this on April 1st, we look at the whole process and we work our way backward.  The first part of the process is to file for a Prevailing Wage Determination through the Department of Labor and even before that we have to post the job position.  You have to do some research into what the job duties and job descriptions going to be.  There’s a website on the Department of Labor that allows you to figure out what the prevailing wages for that position.

For instance, if someone wants to hire an engineer and to sponsor them for an H-1B, then you have to look in the geographic area in which the job will be and determine through the website what the prevailing wage is going to be for that position.  Once you have that information, you can post the job with the notice of the job and that’s part of the filing with the H-1B application.  You have to certify that you posted it for 10 calendar days prior to filing the LCA.

You get the prevailing wage.  You file a notice at the employer’s place of business.  You post it in two spots.  If there’s a union, you would advice the union of the posting of the position, the thought being that American workers can apply for the position as well.  Once the employer has posted the job for 10 days in 2 places in the office, they can then remove that and keep that in their file.

You then file the LCA with the Department of Labor.  The Department of Labor says it takes them about 7 days to approve this and you need to make sure to stand top of it and to keep track of the filing deadlines and the filing processing times to make sure that you get everything done before that April 1st deadline.  If you haven’t gotten the Prevailing Wage Determination, if you haven’t gotten the posting of, you’re going to be in real trouble to meet that April 1st deadline and there’s a good chance that the employers are going to be barred or not able to get H-1B for their employee.

So that’s the main gist of it.  If you have any questions about the LCA or its role in the filing of the I-129, which is the second part of it with the Immigration Service, give us a call at 314-961-8200 or you can shoot me an email jim@hackinglawpractice.com and we’ll be happy to help you out.