H-1B Filing Requirements and Procedures

In general, there must be a sponsoring U.S. employer and qualified foreign national. Once this is established, the employer must determine the prevailing wage. As noted earlier, this is typically done by the employer obtaining a PWD from the USDOL. As a reminder, an employer is not required to obtain its PWD from the USDOL, but by doing so, the employer is given a "safe harbor status". Once the prevailing wage is determined, the employer must file ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers, with the USDOL's ETA. This form, along with the filing procedures for employers or their agents can be found at http://www.foreignlaborcert.doleta.gov. Once the LCA is certified, the employer files a copy of it with Form I-129, Petition for a Nonimmigrant Worker (with the required supplements and supporting documentation) with the USCIS Service Center which has jurisdiction in the area where the foreign national will work. This form, along with the filing procedures for employers or their agents, can be found at http://www.uscis.gov.

Assuming there are no issues along the way, and USCIS approves Form I-129, Petition for a Nonimmigrant Worker, if the foreign national is outside the United States, then he may apply for an H-1B nonimmigrant visa at a U.S. embassy or consulate, typically, but not always, in the jurisdiction where he resides (unless he is visa exempt). If the foreign national is inside the United States in another nonimmigrant status (or even the same nonimmigrant status), then the Form I-129, Petition for a Nonimmigrant Worker, may request a change (or extension) of his nonimmigrant status in the United States.

This guide was developed by Meyers & Meyers, LLP as a resource to help you understand some aspects of Immigration Law, which is very complex. It is not intended to create an attorney-client relationship. We recommend you contact one of our experienced Immigration Attorneys to devise an individualized plan to help you and/or your company achieve your goals. Please contact Meyers & Meyers, LLP at information@meyersandmeyers.com for assistance.

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