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Computer programmers eligible for H-1B visas
By BOYD F. CAMPBELL
Attorney at Law and Civil
Law Notary
If
you qualify as a computer programmer specialty worker, you may be eligible
for a temporary specialty worker visa called an "H-1B". This visa
is valid for a period of three years and is renewable for another three
years, for a total of six years. Employment can be part-time, you
may have more than one U.S. employer, and the visa is fully "portable,"
i.e., you may move from one employer to another during the six-year period
of validity.
H-1B
specialty worker visa petitions are filed by U.S. employers with the Immigration
and Naturalization Service (INS). U.S. employers want the temporary
services of people whose work requires a bachelor's or higher degree in
a specific occupational specialty. These fields of skilled knowledge include
most computer science jobs as well as programmers and engineers.
The
immigration lawyer's office prepares the necessary forms and other supporting
documentation, including affidavits from the U.S. employer, based upon
information provided to the lawyer by the employer.
The
basic information required for an H-1B petition includes the date the U.S.
employer was established and its IRS employer ID number, the total number
of its employees, its most recently reported net and gross annual income,
a detailed description of the specialty worker's proposed job, the specialty
worker's salary, and the approximate value per week of the benefits (i.e.,
health insurance) the specialty worker will receive.
The
INS requires about 60 to 90 days or more from the date a petition is filed
to examine an H-1B petition, but processing delays are hurting this visa
program as well as others in the United States.
Foreign
nationals in the United States who have not worked without authorization
or who have not otherwise violated their current immigration status can
change their visa classification to H-1B in the United States. Foreign
nationals who have violated the terms of their current immigration status
and persons outside the United States must secure their H-1B visa abroad
at a U.S. consulate.
Changes
to the law governing H-1B visas and they occur frequently spell out new
requirements that often take as long as two weeks to satisfy, and which
must precede the filing of an H-1B petition. This includes obtaining
a prevailing wage determination and the filing of a Labor Condition Application
(LCA) with the Department of Labor (DOL) prior to submitting the H-1B petition
to the INS. We prepare and file the employer's LCA. The LCA
certifies that the specialty worker will be paid the higher of two specific
wage levels: the "prevailing wage," which is determined by the local
State Employment Security Agency (SESA), sometimes in response to the employer's
own wage survey, and the "actual wage," which is determined by comparison
to all other workers in similar jobs at the specialty worker at the employer.
The
Immigration Law Center helps employers obtain "prevailing wage" determinations
and documentation. We also provide written instructions for the employer
to use in determining the "actual wage". The SESA's prevailing wage
determination may be challenged by competent, authoritative wage data and
other evidence.
The
LCA must be posted in two conspicuous places where the services are to
be performed so that U.S. workers may know that you intend to file an H-1B
petition on behalf of a specialty worker. Penalties, including back pay,
are provided in the event an employer makes a misrepresentation of fact
on an LCA.
The
employer must sign an attestation on the LCA stating that it will pay for
the specialty worker's "return transportation abroad" in the event the
specialty worker is terminated before the expiration of his or her visa
status. The rules of the INS governing this requirement lack an enforcement
provision, and they do not indicate to whom the cost of transportation
must be paid. Although INS has indicated little interest in enforcing
this provision, it is part of the law.
The
employer must keep the LCA and prevailing wage/actual wage documentation
on file. We will provide the employer with those materials and with
instructions regarding their retention. The immigration lawyer prepares
first drafts of all required documents for the employer's review, revision,
and approval. When the employer approves the final documents, the
lawyer files the petition and supporting documentation with the Department
of Labor and the INS and will follow-up with those agencies to insure prompt
adjudication. The filing fee for this visa is currrently $1,110.00,
unless the employer qualifies for an exemption as a school, college, or
university, or an affiliated organization. Employers needing faster
visa processing may pay an additional $1,000.00 "premium processing" fee
to the INS.
H-1B
petitions usually are decided by the INS within 60 to 90 days after filing.
Most foreign national beneficiaries of H-1B visas are then authorized to
work. H-1B beneficiaries who are overseas will go to the U.S. consulate
to get an H-1B stamp in their passport before they will be allowed to enter
the United States in the temporary visa status and begin work for the U.S.
employer. Even those who are eligible to work without obtaining a visa
stamp abroad should get an H-1B visa stamp in their passport before they
travel abroad so they will be able to re-enter the U.S. and continue their
employment.
The
first step a foreign national should take in pursuing the H-1B visa is
to get an offer of temporary employment from a U.S. employer. WARNING:
A foreign national may not accept an offer
of employment in the United States unless and until authorized to do so
by the INS.
We
require prospective clients, whether they are U.S. employers or foreign
nationals, to fill out an intake questionnaire for us and submit it via
mail. A completed intake questionnaire helps us properly evaluate
individual situations and serve our clients better. There is no charge
or fee for submitting a completed questionnaire to us. We also assist
alien employees with consular processing overseas.
WARNING: Friends, family, and fellow employees are good sources of bad information about immigration and nationality law, procedures, and the INS. You should be aware that U.S. immigration law, federal implementing regulations, and the federal administrative procedures that one must follow change frequently. You should consult a qualified immigration lawyer about any new visa application process. If you do not know a qualified U.S. immigration lawyer, Mr. Campbell urges you to call the American Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington, D.C., at (202) 216-2400.
Boyd F. Campbell is a member of the American Bar Association (ABA), the American Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB). He served as Chair of the Immigration Law Committee of the ABA's General Practice, Solo & Small Firm Lawyers Section, and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. He is also a memer of the ABA's International Law Section. Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002. He has practiced international, immigration, and federal employment law in Montgomery, Alabama, since 1988. Mr. Campbell is listed in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc. Access to this database of lawyers is available on the World Wide Web by subscription: www.bestlawyers.com. In August, 2001, Mr. Campell was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.
Questions or comments about this
article may be directed to:
Immigration
Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032
USA
Telephone: (334)
832-9090
E-mail: CLICK
HERE
NAVIGATION: Back to the Immigration Law Center on the Internet: CLICK HERE