There is a lot of misconception about exactly how an H1B visa is reviewed, approved and verified. Some applicants or sponsors might be surprised to learn that every H1B petition and visa are reviewed by five separate government agencies, each charged with a different aspect of the review and/or verification process.
Everyone is familiar with the annual lottery and the role of the USCIS, but that is not the only agency that can hinder the approval of an H1B visa.
Here is a breakdown of how each agency is involved, and at what stage of the application process and issuance of work visas:
US Department of Labor (DOL)
The DOL’s Wage and Hour Division has responsibility for reviewing the Labor Condition Application (LCA), which is the first step toward securing an H1B visa. The LCA basically ensures that the foreign worker is being paid the prevailing wage for both the position and job location. The purpose is to protect US workers from being replaced by cheaper foreign labor.
The DOL also maintains a ‘willful violators’ of H1B visa rules, and are disqualified from participating in the H1B visa program. If a sponsor or worker cant meet the DOL criteria, the H1B visa petition won’t be submitted.
US Citizenship and Immigration Services (USCIS)
The next agency is the USCIS, which reviews the Form I-129 Petition for a Non-Immigrant Worker submitted by the employer/sponsor. The DOL certified LCA must be included with the petition. The USCIS has the authority to issue an RFE (Request for Information) from the worker and/or sponsor if the petition is incomplete.
The USCIS also runs the annual lottery, using a largely unknown method of selecting ‘random’ petitions to meet the annual quota of 85,000 H1B visas. Even if the petition is selected, the H1B visa could still be denied.
US Department of State
If the I-129 is approved by the USCIS, then workers outside of the US will then apply for the actual H1B visa with the Department of State at a US embassy or consulate. This includes an in-person interview at the consulate and a review of the petition documents.
Department of Homeland Security (DHS)
The DHS is also involved in the H1B visa program, and charged with oversight and investigation into instances of H1B visa fraud. This authority was recently enhanced, and may include site visits to verify the occupation, position and location of existing H1B visa workers in the US.
US Customs and Border Patrol
The CBP is organized under DHS, and has the role of ensuring that only valid H1B visa holders enter the US. CBP officers are at every airport and border, and will sometimes check foreign workers’ documents and electronic devices to verify identity and qualifications for entry. They have the right to deny an H1B visa holder entry if they find conflicting or inadequate documentation, so they are the final threshold to cross prior to beginning work in the US.
With all of these agencies participating in different stages of the H1B visa program, it is no wonder that prospective foreign workers can get discouraged. However, once you find a sponsor and position, the US employer will handle most of the steps, and you just have to submit the required documents and give the consulate interview. It pays to be patient and simply go through the maze of rules and regulations with optimism and attention to detail.
There is still time to find an H1B visa sponsor for the FY2019 annual lottery, so please contact us for assistance.
- December 20th, 2017