The H-1B program allows US companies located in the United States to bring in international employees for up to three years (extendable to six years) to work in “specialty” positions requiring a bachelor’s degree or its equivalent. The process is rather complex and requires about six months to complete. Furthermore, the H-1B is usually subject to an annual cap of around 65,000 visas, which may be met early in the year. This article describes the process for obtaining the H-1B visa for prospective employees located overseas, from an employer’s point of view. The first step is to locate international employees. This can be accomplished using one of the many international employment agencies available through the Internet. Once you have selected the employees you wish to hire, you will need to extend written employment offers to them outlining the basic terms of your relationship including the nature and duties of the position, the term of the employment, and the salary and benefits offered. Keep in mind that US authorities will require you to offer salary and benefits at least equal to that of similarly-situated US workers in your industry, in order to prevent unfair competition against US workers. Determining the appropriate minimum salary may require a bit of research. You should also remember
that the H-1B visa is only offered for “specialty” positions. Although there is no certain definition of exactly what constitutes a specialty position, it must be a position that genuinely requires a bachelors’ degree or its equivalent to perform (you cannot hire a college graduate as a street sweeper, for example, simply by maintaining that your company is in need of educated street sweepers). Once you have located employees, you will need to file a Labor Condition Application with the US Department of Labor (the application can be downloaded from their website). This application requires you to attest under penalty of perjury that both the remuneration and working conditions offered to your international employees will be similar to that of equivalent US employees. Once your Labor Condition Application is approved, you will be required to post certain information about your company on the Internet and at the job site where your employees will work. The next step will be to file Form I-129, downloadable from the website of the US
Citizenship and Immigration Service (USCIS). In order to complete this form, you will need certain personal information about your prospective employees. You should submit this form to the USCIS together with the approval notice for the Labor Condition Application, your written employment offers, and copies of your employees’ bachelors’ degree diplomas or documents establishing equivalent qualifications (see the USCIS website for how to proceed if your employees do not have Bachelors’ degrees). If your petition is approved, the USCIS will issue the Approval Notice (Form I-797). You should send your employees the originals and keep copies for yourself, although the USCIS may send originals to both you and your
prospective employees. The remainder of the H-1B visa process must be completed by your prospective employees. Each employee must appear at the US embassy or consulate listed on Form I-129 together with any accompanying family members, the USCIS Approval Notice, and passports for everyone. It is best to contact the embassy or consulate in advance because some of them will require additional documentation. Each employee will receive an H-1B visa stamped onto her passport, and accompanying family members will receive H-4 visas. At this point, the process will be complete except for actual entry to the US.
