Filing for an H-1B visa depends on finding an U.S. based employer willing to hire you.

The Employer, after the agreement to hire, must file two sets of forms to obtain the H-1B status. The employer must file a Labor Condition Application with the Department of Labor, promising, among other things, to pay the higher of either: (a) what the Employer pays other workers in the same occupational classification in the same geographic location; or (b) the prevailing wage for the position in the geographical area where the job is located. The U.S. Department of Labor requires this promise from the Employer to assure that Employers will not import cheap foreign labor at the expense of the U.S. labor force.

After the Labor Condition Application has been approved, the Employer must file an H-1B Visa Petition with the Immigration and Naturalization Service ("INS") on your behalf as a foreign national. In the Northeast, this petition is filed with the Vermont Service Center of the INS.

Typically, it takes approximately 8 weeks for the INS to reach a decision on the petition.

The U.S. government limits the number of H-1B visas that may be issued each year. In the last several years the United States has run out of these visas well before the close of the government's fiscal year, resulting in a crisis for U.S. companies trying to fill open positions. With the passage of the new legislation, Congress nearly doubled the number of H-1B visas. 195,000 H-1B visas are to be made available each year for the next three years.

By Susan J. Cohen, Esq., Manager, Immigration Law Department at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.

If you have questions, you can e-mail Susan at scohen@mintz.com