The step one is:
Labor Certification agreement: The company that you work for or intend to work for has to wait with the Labor department and its certifications. The Labor department has to certify that this job offer is an original job offer that the company is going to pay you for it and so forth. When this is approved it takes to the next step in the INS.

They approve the petition based on the Labor certification on your qualification. To our office we get a stack of papers - on an average 2000 petitions per month. These petitions contain: The approval notice, Application to the INS, Application from your employer saying how great you are and why you are the right person for the job, copies of your degree, copies of job offer, previous job experience letters……. everything that you sent to your prospective employer.

INS has to approve that whole package - they go through that package and they look at it and then OK it if everything is OK.

Once the petition is approved - it comes to us and then you come here and apply for your visa. The fact that you have an approved petition legally or under immigration law is evidence that you are who you say you are and that you qualify for the job that you have applied. Now how do you qualify for that job: -

An H-1B visa can only be issued and approved for someone who has a degree, specialty occupation they are hired to go into the US for or they have equivalent work experience to make up for that degree that they don’t have.

The INS will use and we will use because the INS does, a 3:4 ratio if you don’t have a degree. If you don’t have a degree and you wish to work in the US on an H-1B visa, you have to have an equivalent work experience of the 4-year Bachelors degree. It is calculated as 3 years of experience for 1 missing year of degree, so that totals to 4 * 3 = 12. No degree implies you have to have 12 years of experience in your specialty field in order to qualify for the H-1B visa.

Now what we look at, INS looks at one thing we look at something else. Technically we petition off the visa immediately because the approved petition is already there. What we see quite often and quite frankly that most of you probably already know this from the past publicity and wherever from that there is a very high forgery in the H-1B category, I don’t say high but it is up there. People lie to us, people lie to people, people lie to their prospective employers. They forge their documents, forge their degree and their previous employment experience.

The INS does not know that because they have copies of your documents and not the original documents. When it gets to us we have the expertise, we know what’s going on and if we find any educator that is fraud we will withhold that application and remove it for investigation. Fraud educators means, well I can’t discuss all of them, but we know what a forged degree looks like, that is why when you come for your visa, we ask you to carry you original documents, and ask you to show them. You will be surprised to know the length people go through to bring their original documents. You will be surprised to know how much money people are willing to pay to get these forged documents.

We had a case where a person, who was actually qualified and had a degree, the only thing was that his University did not issue his degree and he had to wait for his convocation to get it. What did he do? He made a big mistake of his life, he paid someone to fabricate a degree certificate for him and he came to us with it and guess what he is never going to get a visa from us again for the rest of his life because he made a stupid mistake. Instead of telling us what happened or have his University give a letter stating the problem, he got a fabricated degree, when he actually had a degree and was qualified.

Don’t submit a forged document. You want to be who you say you are, you have a degree, you have the expertise.

Be honest with yourself and that is your responsibility. Your responsibility is first to be honest to yourself and to your employer in States.

The employer has to make phone calls, interview you on phone, how does that employer know.

If I was in the US and I found your name, email and phone no. on a web site and if I had to make a call to Hyderabad or Bangalore or Chennai and I ask for you, how do I know who I am speaking to. I don’t know if I am speaking to the right person, I could be talking to your father or sister or uncle or brother. And this person I am going to be talking to is going to be able to answer all the questions and he knows what is going on because I would have already sent the schedule for the telephonic interview via E-mail. This person is going to answer all the questions on the telephone and its great, I am going to write a letter to them and start the H-1B processing and he is sure to fly of to the US. When you apply for your visa one of our Indian employee is going to pre screen your application. They may ask you one or two questions, like…..

What is SAP?
And then you stare out of the window ……..

Explain to me what a Network Manager does, be it LAN or WAN?
I have no idea……..

I have got a petition here, which says that this is you and you have all this expertise to do this job for this company and you can’t answer this simple question! If you can’t tell me what you are going to do you can’t get your visa! So again be honest with yourself, that is the up forth thing that you need to do and be honest with your prospective employer too.

Your employer has to pay you atleast the minimum wage or the prevailing wage for the job that you are being offered. They cannot take away the job from Americans.

Consultants trading, that is strictly illegal, that petition is your job base. If the petition is filed by XYZ, you are for XYZ and if he wants to trade you to ABC, then ABC needs to file your petition and go through the whole process again. The INS has to approve of it. You can’t work with ABC with a visa you got from XYZ, so trading without going through the INS is strictly illegal and you can’t do that, you could get into trouble. INS will find out that you are working for ABC with a visa from XYZ and you will find yourself in the next plane back to India.

These are the questions and answers recorded in the Question-Answer Session:

17. If a person has got a H-1B from Sponsor XYZ and quit after some time because he found out that his Sponsor company is not good enough and the sponsor has not informed the INS that he as left, will the 6-year H-1B clock be still on.

1. Yes. If your sponsor company has not informed the INS that you have left the company, The clock will still be on, because INS will not know that you have left and will be under the impression that you are working for XYZ.

17. When can a H-1B visa be transferred (i.e. from one company to another)?

1. INS controls that, if it is done without the knowledge of the INS it is illegal

17. Question unclear (editor)

1. If there are any petitions (submitted before March 21^st) left after the cap is reached, those petitions will be made available for October 1^st. New petitions received after March 21^st will be returned to the Sponsors and be told be filed again after Oct 1^st.

17. If you join company XYZ work for 4 months and the come back for 2 months and then again go back and work for the company again, how is the 6-year clock calculated, will the 2 months also be counted.

1. Yes, the 2 months will also be counted, Unless INS is told about it, you are still working for the company and the clock is on.

17. You said B1 to H1 is a catastrophe? Why is that?

1. Not a catastrophe. If you are working for a company on a B1 and you go on a business trip to the US for 3-4 months, the INS has no problem. The problem arises when your Branch company in the US to which you have come on a B1 visa, files a H-1 petition for you. When you walk into our office with the letter saying that we are looking forward for you to join our company and so on, INS will take you aside and look at that petition and tell you that you have come here on a B1 visa and you will go back with the kind of visa you are come in. When these two petitions kind of collide with each other, the INS will pull you up and you are likely to face a problem.

17. What about the F1 to H1?

1. Again it is an INS issue, it is the states, changing from one non immigrant category to another non-immigrant category while in the US is an INS issue?

17. Who is eligible for a drop box?

1. The following are eligible for a drop box:

• If you have a 3 year visa of any kind
• If you have been travelling to the US for atleast 5years
• If you have to travel extensively
• If you are an IAS officer
• If you are a Diplomat
• If you are in the Police force
• If you are in the military
• H4s, L2s, J2s, H2s.
• If you are Mentally or Physically handicapped
• If you are over 55
• More

For H1Bs - if you are applying for the same kind again you could use a drop box as long as you provide the necessary documentation.

17. If somebody has an F1 visa and is working in the US and has applied for his H-1B, but his F1 has expired while his H-1B is still in process, what is his status? Can he remain in the US till his H-1B is approved?

1. As long as it is done through the INS he can stay as long as he needs to stay.

17. We heard that it is difficult for Medical professional to get an H-1B. So if he shifts to IT and applies for an H1 will his medical experience be held against him while processing for H-1B?

1. Probably not, but it may differ from case to case, we need to go through the details of a case and decide.

17. What happens to those filed before the cap is reached?

1. It will probably be approved. You have to wait patiently to here from the INS

17. If a Consulting company files a petition for you for working in New York and after the candidate had finished his project in New York and has to go to California, will the Company have to file for an LCA again?

1. Another LCA is not required, but INS has to be told you are with a Consulting company that contracts people out and that you will be going out on these jobs. An H-1B is site and job specific, that is why in the Approval notice, you petition No and Petitioner's name is there. Therefore if you are changing your location for another project, make sure your company works it out with the INS.

17. If a person has been rejected a visa for lack of Degree or some other problem, can he apply again?

1. As long as the reason is not because of fraud, the person can apply again, but keep in mind that to be eligible for an H-1 you have to have a 4 year degree or equivalent experience in your specialty occupation.

17. Do you discourage change of profession?

1. Personally we don't discourage it. But for example if a Medical professional changed to IT and comes for an H-1B, most of our officers will question about the change, like….You have a degree for Medicine, you have spent so many years to attain it, you have been doing good practice too, you have made good money, the why on earth would you want to change your profession. We would not discourage but will definitely ask "Why"?