HOW TO FILE AN H-1B SUCCESSFULLY - A PRIMER

H-1B VISA is a temporary specialty occupation visa for U.S. companies who want to hire non-U.S. citizens. These visas are very useful for industries which wish to hire high-skilled workers from outside the U.S. temporarily, especially because of low availability of skilled labor in STEM – Science, Technology, Engineering, and Math fields. The petition for an H-1B is a complex process which requires a careful review of not only the company’s records, but also of the potential employee’s educational record, immigration history, and the prevailing wage applicable to workers in the geographic location of the employee’s work place. Here are a few tips for our clients to ensure that they understand this complex process and can file the visa for their employees successfully:

1. Specialty Occupation: An H-1B is a "specialty occupation visa.”. This means that the profile for which the company wishes to hire someone must require either a four year bachelors degree or higher. This requirement for a four years bachelors degree may also be met with equivalent years of experience in the industry. U.S. immigration laws consider three years of experience as equivalent to one year of college degree. Therefore, if an employee does not have a bachelor’s degree, he or she must at least possess twelve years of experience in the industry for which the H-1B is sought. Our clients should make sure that the employees they wish to hire have such experience or educational history. Often such education or experience is obtained outside the United States. In those cases, the employee should get their degree credentials evaluated from an established educational credential evaluation agency.

2. Lottery: Almost every year there is a cap of 65,000 on H-1B visas. U.S. Congress has enacted laws in past to increase this limit and may do so in future as well. However, the limit for this year’s H-1B quota will most likely be 65,000. This cap means that only the first 65,000 applicants will be considered for the visa adjudication. Often, the number of applicants for such visas is far more than this cap. In such cases, USCIS conducts a lottery to select the applicants whose petition is complete, and adjudicates only those petitions. A mere selection in this lottery does not entitle the H-1B visa. The visa petition must be thorough and meet all requirements of this visa.

3. Exceptions to 65,000 Cap: The first exception to the 65,000 cap is that for applicants who possess a Masters or higher degree from a U.S. accredited educational institution. This exemption can be availed only by the first 20,000 applicants who seek the “Masters quota”. Any remaining Masters quota applicants are added to general “Bachelor’s quota” pool of lottery.

Additionally, Congress has created certain exceptions for H-1B visas for specific employers and employees. H-1B petitions filed by institutions of higher education, a nonprofit entity related or affiliated to a higher education institution, or nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C), are exempt from the cap. Finally, most H-1B physicians with J waivers, H-1B workers seeking extension of status, and H-1B workers seeking change of employers are also excluded from this cap.

4. Documents: Below is a basic check list to ensure a successful and complete H-1B filing. Note that this is not an exclusive list; additional documents may be required depending on employee’s background and other factors:

Documents Needed from an Employer

  • Employer’s bank statements

  • Employer’s tax returns and federal reports

  • Recent contracts, sales invoices, purchase orders and SOWs

  • Brochures or other promotional materials about the products and services of the employer

  • Copy of the Employer’s Website About Us and other pages

Documents Needed from an Employee

  • Copy of Passport

  • Electronic I-94 Document

  • Copy of Employee’s Visa Page if already in the U.S.

  • Entire Educational Record

  • Any Professional Licenses

  • Educational evaluation from a reputed agency if the Bachelor’s degree was obtained outside U.S.

5. Process:

  1. The first step in any H-1B visa petition is deciding the position of the prospective H-1B beneficiary and the prevailing wage he or she must be paid. This requires careful analysis and can often make or break an H-1B petition.

  2. Obtaining an LCA – Labor Condition Application, from the U.S. Department of Labor. This LCA must be attached to the H-1B filing.

  3. While the U.S. Department of Labor adjudicates the LCA, it is advisable to complete the educational evaluation from a reputed credentials evaluation agency.

  4. Once you have LCA and an educational evaluation with the above mentioned documents, you or you attorney can start preparing the several forms required for this petition. This include I-129, I-129DC, and I-129H, and others.

  5. Filing all the signed forms with the evidence described above to USCIS on April 1. Any government filing fees must be paid by check or money order to U.S. Department of Homeland Security.

  6. Obtaining a receipt of the petition from USCIS.

  7. Adjudication of the H-1B - this either takes about two weeks if premium processing is chosen, or anywhere from 3-4 months. A Request for Additional Evidenc, a Notice of Intent to Deny, or other exceptional circumstances may increse this timeframe.

An H-1B visa is complex and requires careful consideration of several requirements. Be sure to consult with an experienced and thorough immigration attorney to increase your chances of a successful petition.

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