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B. who will perform services in a specialty occupation (Most professional jobs are classified as "specialty occupations"); and

C. on whose behalf the employer has obtained an approved Labor Condition Application (A Labor Condition Application serves, amongst other things, to ensure that the employer is not paying less than prevailing wages).

H-1B Visa (Procedure)

1. Obtaining Labor Condition Application ("LCA") a. Obtaining Prevailing Wage Determination We first need to obtain a prevailing wage determination from the local employment office that has jurisdiction over the geographical area of employment. Having obtained the prevailing wage for the offered position we will then file an LCA with Department of Labor.

Applying to the U.S. Department of Labor

An LCA is an application to the U.S. Department of Labor ("DOL"), whereby an employer assures the DOL that hiring of a foreign worker would not be detrimental to similarly situated U.S. workers. DOL will routinely approve the LCA if it is completed and signed. The approved LCA will then be sent back to us for filing with the Bureau of Citizenship and Immigration Services along with the petition for H-1B classification.

2. Filing with the Bureau of Citizenship and Immigration Services ("BCIS") Filing with the BCIS (INS) entails submitting proof of the employee's qualifications and of the offered job conforming to the criteria explained above in this letter. Additionally, certain forms will be submitted describing the job and providing certain basic information about the employer.

Application to the BCIS (INS) is the last step in the H-1B classification process. On rare occasions BCIS (INS) may require further documentation to prove various elements of H-1B classification.

What is Required of the Employer

1. Maintaining Documentation The LCA process requires that the employer maintain in its office a file containing documentation of various assertions that the employer will be making in the LCA application. One example of this documentation would be the prevailing wage determination that we obtain from the local employment office. Please note, we are not required to submit this documentation to the DOL, only to maintain it. I will describe this documentation in further detail before we file the LCA.

2. Other Liabilities

Under the regulations, if the employer were to dismiss the employee during H-1B classification status, the employer could be liable to pay the employee's return fare to his or her last place of foreign residence. Please note that this liability continues only during the H-1B status. Change of status to permanent residence or any other change of employee's status, absolves the employer of this liability.

Q2 Do I need to hire a lawyer for H-1B/GC ?

A2 Getting your H-1B should be pretty straight forward but now a days things are getting tough. One needs to know the various rules/laws of immigration. One must be ready to devote a lot of their personal time to get a H-1B/GC on their own. In a nutshell, if you or your employer can afford a lawyer hire a lawyer.

Most people who process their H-1 without legal help often open their employers and themselves to liability. Only 10% of H-1 processing is filing forms. Rest of the requirements exist in the background. The employer is required to maintain various items of documentation. These are not submitted to regulatory authorities, which is why most people do succeed in obtaining their H-1. If, however, there were an audit by the authorities, there could be major problems.

Q3 How much does it cost to hire a lawyer for a H-1B visa?

A3 Anywhere between $700-$1500. I have known people hiring lawyers for just $700 and having a TOUGH time getting their H-1B visa because the lawyer was not very good. This doesn't mean all lawyers charging less than $1000 are bad and the ones charging > $1000 are good .

Q4 Does the lawyer need to reside in the same city/state where I live?

A4 NO! Most of the work is done by phone/fax [and email in few cases] So it doesn't make a big difference where the lawyer resides unless you are expecting complications which may require you to meet the lawyer personally.

Q5 What forms are needed for H-1B visa and where can I get it?

A5 Form I-129 and H Supplement. You can get it from your BCIS (INS) office.

Q6 Is there any special requirement to get H-1B ?

A6 Yes. Basically, You must have the U.S. equivalent of a Bachelor's degree in a specialized subject (such as computer science, economics etc.) and the job must require such specialization. There are many other requirements, but this is where you begin.

Q7 Say, if my employer in US has got H-1 visa approval from BCIS (INS), does that ensure that I can get H-1 visa ?

A7 Normally, yes. But there can be no guarantees. The problem most often encountered is that H-1 is approved for one job site, but the employee is working at another. Lately, we have been finding consulates creating many problems in addition to the above,like: - Prove the employer can pay the wages - Prove that the beneficiary is qualified for the job.

Q8 If my employer has got H-1 visa approval, can I apply for a visa either in Korea or in Japan ? Does that matter ?

A8 You are normally best advised to apply from the country of last residence or home country. But as a practical matter, a U.S. consulate in a third country may give you the visa. It depends upon whether or not that consulate accepts H-1 applications from persons not connected with their consulate. Under the 1996 immigration law, if you have ever been out of status, you will not be permitted to apply for a visa in a third country, unless you fall under certain limited exceptions. Some more details on

Q9 Can I get a H-1B visa for a part time job?

A9 Yes.

Q10 Having H-1B visa with one company, can I work some where else also, like part time job ?

A10 You will have to get another H visa for the second employer. Note, you can simultaneously hold more than one H visa.

Q11 During the process of H-1B visa, suppose I get a better job what happens ?

A11 Apply for a new H-1B.

Q12 Should I wait for my H-1B approval before I join the new job?

A12 [this question is related to the previous question ] You must wait to get the second H-1B approved. H visas are employer specific but under the H-1 portability law, if you are currently working for an Employer A on H-1B, you can apply for an H-1 for another employer, say company B. Once you get your receipt notice for Company B, you can join company B on the receipt notice.

Q13 I am coming up on the second three year extension on my current H-1B visa. If I change employers 3 months into the extension, will I be able to use the remaining 2yrs 9 months with another employer on a new H-1B ?

A13 Yes you will, but you do have to get a new H-1B classification.

Q14 My H-1B is up for renewal after three years . It was received without the DOL Clearance that is required now a days. Will the renewal need such a clearance from DOL ?

A14 Yes, you will now need clearance from the DOL ( Department of Labor)

Q15 Is the LCA specific to a state? For example, can I take an LCA form from one state and fill it and send the completed form to another state?

A15 The forms for LCA are federal (ETA 9035). Therefore, they are the same all over U.S. The certified LCA itself, however, is valid only in the region where it is certified and for the job location it is certified.

Q16 My wife works on H1 work visa and her employer has filed for a greencard for both of us. At that time, I was on H4 visa. Now I am on F1 (student visa). Would it be a problem for me to get a GC since I am not an H4 visa? Do I need to change my visa to H4 so that when my wife gets her visa approved, I automatically get it with her?

A16 You do not have to be on H-4 status to get green card through your wife. You can be in any status.

Q17 I have a H-1B visa and I want to change jobs. Is it possible for my new employer to file for my H-1B without my original H-1B document which is with my present employer?

A17 Yes, you don't require the original H-1B document from your present employer to get a new H-1B. A xerox copy of the old H1 approval is sufficient (if at all needed) to file for a change of employer (Even though you have to go through the whole process of getting the first H1B approval).

Q18 How much is the fee for H-1B and H4.

A18 H-1B : Correct filing fee for filing an H-1 B under regular processing is $1130. Fore more information, please see our fees file here.

Q19 I did not get a "Blue" form with my H-1B visa approval notice. Why?

A19 BCIS (INS) has started using a new "Notice of Action" form. H approvals used to arrive on blue forms. They will now be arriving on white forms with a watermark of the statue of liberty and with the bottom portion being an I-94 to be cut and retained by the foreign worker in question. Incidentally, the new form is called an I-797A.

Q20 If my company is bought by another company is my H-1B visa still valid?

A20 MERGER & ACQUISITION The general rule regarding mergers used to be that if the employer A merges ALL assets and ALL liabilities into Employer B, then employer B can automatically take over all H-1's and green card applications. Nothing gets interrupted as long as the jobs and the geographical locations remain undisturbed. The same situation obtains when B buys A with all its assets and liabilities.

As of July 2001, we should be able to continue the green card/H-1 process without interruption if the new employer takes on all rights and responsibilities with respect to employment and immigration of the employees and the jobs remain unchanged.

Otherwise, all immigration has to be done all over again usually.

NEW DIVISION In case of creation of a new division within the same company, there is no problem, if the job locations, salaries and des criptions remain the same.

NEW ENTITY If an entirely new corporation or entity is created, we might have to start H-1 and green cards all over again for those employees who are sent to the new entity.

Please have an attorney look over your specific transaction. BCIS(INS) has been getting progressively more generous in their interpretation of the law. .

(Updated on 09/22/03)

Q21 I am full time employee at X on H1 visa. When I get new H1 for company Y, does the old H1 gets automatically canceled or is it valid till I actually resign from X?

A21 BCIS (INS) has recently given an opinion that unless the old H-1 is specifically canceled or invalidated, it continues to be valid.

Q22 If I get promoted do I need to get a new H-1B visa?

A22 Technically, you do need a new H-1. In real life, if the jobs are sufficiently close in des cription and responsibilities, I recommend that your employer just send a letter to BCIS (INS). Once again, do NOT make your ow