Self Help Series-Part 2: H1 Extension / Renewal / Revalidation

J1victim

Registered Users (C)
Self Help Series-Part 2: H1 Extension / Renewal / Revalidation

Part 1 of this series is “NIW (National Interest Waiver) for Physicians in Underserved Areas (EB2-NIW for physicians working in underserved areas) under Section 203(b)(2)(B)(ii) of the Immigration and Nationality Act. It can be found at: http://boards.immigrationportal.com/showthread.php?threadid=97085
The article on H1 renewal was written for physicians, but general principles are same for all categories.

Disclaimer: This FREE self-help guide is not a legal opinion/advice. Just a personal opinion and experience. Consult an attorney if you have any doubts.


H1 renewal involves 3 steps:
1. LCA (Labor Condition Application) approval. 2. H1 petition approval. 3. H1 visa revalidation.

** LCA process (form ETA9035) can be started not more than 6 months before the job start date (and may take a TOTAL of about 1 month).
** H1 petition (form I-129) can be submitted not earlier than 4 months before the job start date (takes 15 days for approval by premium processing and about 4 months by regular route).
** H Visa (form DS 156) can be revalidated at a US Consulate abroad, not earlier than 60 days before expiry date of previous H visa. If you do not plan to go outside US, then you do not need to renew your visa and you can continue work in H status.

1. LCA (form ETA9035): http://www.dol.gov/dol/allcfr/ETA/Title_20/Part_655/Subpart_H.htm (CFR, Title 20, Chapter V, Part 655, Subpart H) gives the regulations. Involves –
(a) prevailing wage determination: (i) contact OWL/SWA (ii) notice of job opportunity
(b) LCA form filing.
(a) Prevailing wage determination: -- Salary available at OWL (online wage library) from http://www.flcdatacenter.com >>> OES Search Wizard >>> State > continue >>> County and occupation >>> e.g. for physicians, codes start from 29-1061. >>>>>>
**** LEVEL 1 or LEVEL 2 WAGES? >>>> Check this link, read the last paragraph under Q15 and decide - http://ows.doleta.gov/foreign/wages.asp (note- DOL mentioned wages at OWL may be unrealistically high and you may have to go for other source of wages; and mean wage from that source will be needed)
prevailing wage approval is obtained from the local employment office that has jurisdiction over the
geographical area of employment. State workforce agency (SWA) numbers:
http://workforcesecurity.doleta.gov/foreign/contacts.asp BEWARE: for some states, this list may not have been updated. Call them and ask what form needs to be filled to get prevailing wage info. Mostly it is ETA 750A page 1. example --- if there is a Medical Director in your office, and the letter for prevailing wage is sent by Medical Director for your job and the Medical director will be your boss, then your job may qualify as a level 1 job.

**************************************************
(ii). Notice of job opportunity: to be posted on or within 30 days before the date the LCA is filed with ETA. post for atleast 10 days. Sample notice:
************************
NOTICE OF JOB OPPORTUNITY
TITLE: Primary Care Physician/Internist.
DUTIES: Will provide primary medical health care services for largely Medicaid/Medicare and medically indigent patient population in federally designated health professional shortage area.
REQUIREMENTS: Must have M.D or equivalent, as determined by accredited credential evaluation services. Must be BE/BC in Internal Medicine and have or able to obtain XX State Medical License. Must possess verifiable professional references.
HOURS: xx hrs/wk.
SALARY: $ xxxxxx per year.
LOCATION: 1. xxxxx 2. xxxxxx 3. xxxxxxxx
APPLICANTS ARE TO REPORT TO: xxxxxxx, Human Resources, XYZ Company
“Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor."
*********************************

(b). LCA Form Filing: ETA9035:
* File online or by fax. Fillable form on computer. File for 3 years.
* For >1 work places, you may write like this: *Flushing/Kew Gardens/Fresh Meadows*. If the space on the form is less than the names, use the online submission form.
* If using online submission, then for first page: Q A- yes, Q B – yes, Q C – choose option 2 (this will prevent the printing of cover pages with the form).
* occupation code: e.g. 070 for physicians
* wage source: it will be SESA if you use SWA/OWL .
* public disclosure: at employer’s principal place of business or work place.
* Employer MUST give a copy of Certified LCA to the H1 employee.

2. H1 petition (I-129) Renewal:
recommend Premium processing. get your dependent(s)’ H4 petition also processed at same time. If you file (H1 Premium Processing + H4 papers) at same time, then H4 will get processed at same time along with H1 on premium route. Documents needed:
-- For H4: Formal Letter to INS to extend H4 signed by spouse; form 1-539 signed by spouse (spouse has to write in one item on I-539 that the sponsoring spouse is working with ABC company and is being paid XXX amount and the spouse supports the applicant,then sign after making that statement on that page); Copy of H1-B Approval Notice; copies of spouse passport and I-94; copies of spouse H4 Visas in Passport; copy of Marriage certificate; Original Employment Verification letter from employer; 3 Latest pay stubs; Copy of H1-B petition application; Personal check for $xxx payable to INS.
Look at this link: http://boards.immigrationportal.com/showthread.php?s=&threadid=104383
-- For H1: I-129, Supplement H, I-129W, I-907 (for premium processing), certified LCA, Letter from employer for extension, current I-94 copy, copy of H1 visa if there, copy of most recent pay stub, and if there is any change in job from prior petition, then you would also need:
* a degree/diploma evaluation (that it is equivalent to US degree) from an accredited credential evaluation service.
* copies of: degree/diploma from outside US (med school degree), US degrees - State medical license, USMLE 1/2/3 certificates, ECFMG certificate, J waiver approval letter from USCIS if you were a J1/J2
*
Form I-129:
Part 2.
1. Requested Nonimmigrant Classification H-1B1
2. Basis of classification: (probably b)
3. prior petition : (your most recent H1 petition number)
4. requested action: (probably c)

Part 4.
g NO (if your employer has never filed a petition. If you filed NIW petition yourself, it will be NO)
h1) YES (as you are already on H1)
i) write: N/A

Part 5.
Job title: Primary Care Physician
Non technical description: Primary Care Physician
Address … : if not enough space, write .. *see addendum* (write all places of work on a separate sheet)
Other compensation: Normal fringe benefits
Value per week or per year: Unknown

SUPPLEMENT H
List the alien’s and ……..
BENEFICIARY HAS BEEN IN H-1B STATUS, XX/XX/XXXX TO PRESENT
Classification sought: H-1B1
Section 1. Describe the proposed duties:
(am writing an example here: change your language-
WILL WORK UNDER THE SUPERVISION AND DIRECTION OF THE MEDICAL DIRECTOR. DIAGNOSE AND TREAT DISEASES AND INJURIES OF HUMAN INTERNAL ORGAN SYSTEMS; EXAMINE PATIENT FOR SYMPTOMS OF ORGANIC OR CONGENITAL DISORDERS AND DETERMINE NATURE AND EXTENT OF INJURY OR DISORDER, REFERING TO DIAGNOSTIC IMAGING AND TESTS, AND USING MEDICAL INSTRUMENTS AND EQUIPMENT. PRESCRIBE MEDICATION AND RECOMMEND DIETARY AND ACTIVITY PROGRAM, AS INDICATED BY DIAGNOSIS. REFER PATIENTS TO MEDICAL SPECIALIST WHEN INDICATED.)
.

ps: my lawyer, when filed for my H1 extension, did NOT submit a covering letter from the employer for H1 extension. still the petition was approved.
. :cool:
u may email me at j1victim at yahoo dot com
.
 
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lalalala

Registered Users (C)
thanks

Dear Ji victim thanks for the informative letter , clarification
1.even if i have an active unexpired Hi do i still have to go through LCA again
2.does the employer still have to advertise the job( u mentioned that one has to only post it on the notice board)
My employer refused to sponser me for PERM so i am sure that would refuse to advertise for the LCA approval again
any other alternatives
 

crore

Registered Users (C)
lalalala said:
Dear Ji victim thanks for the informative letter , clarification
1.even if i have an active unexpired Hi do i still have to go through LCA again

Yes a new LCA will be needed .

2.does the employer still have to advertise the job( u mentioned that one has to only post it on the notice board)

Yes.

My employer refused to sponser me for PERM so i am sure that would refuse to advertise for the LCA approval again
any other alternatives

Need the employer to sponsor the H1b visa. i dont think there are any other alternatives.
 

J1victim

Registered Users (C)
H1 renewal when PERM refused by employer

lalalala said:
.... does the employer still have to advertise the job (u mentioned that one has to only post it on the notice board)
>>>Yes. post it on notice boards at all places where you will work.
.

crore said:
.... My employer refused to sponser me for PERM so i am sure that would refuse to advertise for the LCA approval again.
>>>> very unfortunate (employer refusing to file PERM). But you must know that LCA is for temporary job and PERM is for GC.

Tell your employer that without LCA (and H1 petition), you can not legally work for the employer after your current H1 expires. So if the boss wants to retain you after your current H1 expires, he/she has to file your papers, BEFORE your H1 expires.
.

lalalala said:
.... any other alternatives]
Yes. start looking for a new job.
.
 

lalalala

Registered Users (C)
thanks for response ,
1.so the ads have to be posted only on job location not in any newspaper for 10 days only
2.i guess my other choice would be to stay on NIW since i have an approved 140/AP and later after three years amend it and open my own practice( although people always say to play safe and keep H1 visa current as a second option)
 

Calimero

Registered Users (C)
job posting

Do we still need to post the job for 10 days when we renew H1? I bought a DIY kit and there is no mention of that. I also checked on other websites and there is no mention that my employer has to post it for 10 days...
 
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