Any US employer
can sponsor an H1B petition, provided it has an IRS Tax
Number, also known as an IRS Number or Tax ID Number.
This number is needed for obtaining approval of the Labor
Condition Application (LCA), which is an essential preliminary
to the H1B petition itself. However, employers should
take note that sponsoring an H1B petition involves them
making a number of undertakings, enforceable by heavy
civil and criminal penalties: These undertakings are:-
To pay the
H1B worker at least the higher of the wage paid to similar
workers in the same company or the "prevailing wage"
(usually determined by the relevant State Employment Services
Agency) for the occupation in the area the worker will
recruitment of the H1B worker(s) will not adversely affect
the conditions of the employer's US-resident employees
in similar jobs;
is no strike or lockout occurring at the time the Labor
Condition Application is submitted, and that the approved
LCA will not be used to support petitions for H1B aliens
to be employed at the site of any subsequent strike or
That a copy
of the LCA form will be given to the H1B worker and either
given to the bargaining representative of employees in
similar occupations or (if there is no bargaining representative)
posted in 2 conspicuous locations for at least 10 days
in the place the H1B alien will be working;
records of the LCA and the H1B alien's employment for
inspection by the US Department of Labor.
Note that the prevailing wage is generally lower for non-profit
and academic/research organizations.
Can the H1B employee work at different sites?
A. Yes, but a separate Labor Condition Application must
be made for each site at which the employee will be working
(though there is a limited exception for short-term assignments
at different sites within the same Metropolitan Statistical
Can employment/contracting agencies sponsor H1B visas?
A. Yes, but remember the sponsor has to pay the prevailing
wage whether or not they can find employment for the alien.
How many H1B visas are available each year?
A. 65,000 for the fiscal year starting October 1, 2005.(subject
What happens when the annual quota is reached?
A. The BCIS announces a cutoff date once the annual quota
is reached. Petitions filed before the cutoff date, but
after the quota has been used up, will be held for processing
the following October. Petitions submitted after the cutoff
date will be returned to the petitioner without consideration.
What are the government fees involved in obtaining an
H1B visa, and who pays them?
A. The USCIS filing fee is currently US$ 185, which must
be paid by the sponsoring employer. In addition to the
filing fee, the USCIS imposes a Fraud Prevention and Detection
fee of US$ 500. For H1B applications, the USCIS also imposes
a American Competitiveness and Workforce Improvement Act
(ACWIA) fee of US$ 1,500 if the petitioner employs more
than 25 full-time equivalent employees, including any
affiliate or subsidiary, or US$ 750 if the petitioner
employs 25 or less full-time equivalent employees. Finally,
consular visa processing usually involves a charge of
approximately $105 in local currency. Prevailing Wage
Determinations and Labor Condition Applications are free
of government charges.
How long does the process take?
A. On average 3-6 months in total, depending on the BCIS
Regional Service Center processing the application - unless
using Premium Procession.
Is it possible to speed up the process.
A. Yes. The BCIS has instituted a program called Premium
Processing. If the INS is paid an extra $1,000 on a separate
check, the BCIS guarantees it will adjudicate the petition
in 15 days or notify the petitioner if more evidence is
Can the alien come to the USA on a visitor visa or visa-waiver
while the H1B petition is being processed?
A. This is possible but not advisable, and under no accounts
should the alien risk putting in jeopardy the issue of
an H1B visa by engaging in anything that might be construed
as work, as this may lead to the alien being accused of
visa-fraud either on entry to the US with a visitor visa/visa-waiver
or when applying for an H1B visa at the US consulate in
their own country.
If I sponsor an alien worker for an H1B, do I have to
employ him/her for the full period of the visa's validity?
A. No, but if you dismiss the worker before the H1B visa
expires you are responsible for his/her reasonable costs
of return transportation to their home country. You will
probably not be responsible for such costs for his or
her dependants, however.
Can the H1B alien's spouse/children work or study in the
A. Dependents of the H1B alien are granted H-4 visas,
which are not employment-authorized. Thus they cannot
work unless their prospective employer unless they can
obtain a work visa in their own right. H-4 dependents
may, however, undertake study in the USA.