A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, February 7, 2018

H-1B Filing Tips for Cap Season

Tens of thousands of applicants and employers are gearing up to submit H-1B petitions in order to meet the initial application acceptance date of April 1st.  The adjudication standards have been tightened significantly in recent years.  Consequently, it is important to plan ahead and pay attention to details to avoid last minute issues.  The following are some tips that may help applicants to prepare for a legally sufficient H-1B petition:

1)  Basic Application Procedures:   The USCIS has confirmed that the basic application procedures will remain the same as last year.  Hence, it is expected that all applications received within the first five business days will be accepted to participate in the "visa lottery", a random computer selection process.  65,000 visa numbers are available for regular cap applications, and an additional 20,000 visa numbers for available for applicants with a U.S.-earned advanced degree (master cap).  A drawing will be conducted for the master cap cases first, followed by a second drawing for the regular cap cases.

2) Premium Processing:  USCIS stated that there may be a short suspension of premium processing for H-1B cap-subject cases (last year the suspension lasted 6 months).  If timing is important, it is generally advisable to use premium processing if it is available.  USCIS promises to issue a decision or a Request for Evidence within 15 days of the acceptance.  

3) Start Early:  It is never too early to start the process.  As soon as a foreign worker finds a job that includes H-1B sponsorship, the preparation should begin.  The facts of the case including job descriptions and requirements, employer information, and employee qualifications, etc., should be carefully evaluated and analyzed.  Any missing information or documents should obtained.  The market prevailing wage also needs to be determined.  A clear and detailed job description with any special requirements such as technical requirements or travel requirements should be drafted.

4) Resolution of Potential Issues:  An early start has an added advantage, i.e., extra time to handle and issues of the case.  Over the years, the requirements for the H-1B visa program have gotten quite complicated, even before the recent policy changes by the current administration.  It often takes time to resolve a potential issue of case.  For examples, an employee's academic background may need a formal equivalency evaluation, or supporting documents may be needed to prove that a position qualifies as a "specialty occupation".   The earlier we can spot an issue, the sooner we can tackle and resolve it.

5) Submission of the Labor Condition Application: Certification of the LCA by the Labor Department is a required before an H-1B can be submitted with USCIS.  The LCA is submitted by the employer to include the key terms of the H-1B employment such as job classification, address of the place of employment and the wages or salary offered.  Every year, many cases were delayed or denied due to the employer's inability to obtain a certified Labor Condition Application.

6) Employer's Corporate Identify:  Employers filing H-1B petitions for employees for the first time must also provide documents to verify their business information such as name, address and date of formation.  Such information is required before the Department of Labor will accept the filing of the Labor Condition Application.

7) Duplicate Copy and Double Check Everything:  If an employee plans to apply for an H-1B visa stamp from overseas, then a duplicate copy of the H-1B petition must be submitted with the original copy.  Even if a foreign worker is changing status in the U.S., it is still a good idea to submit a duplicate set of documents to prepare for future visa stamping.  Before submitting the petition, double and triple-check everything before submitting the petition especially the spelling of the names, date and country of birth, filing fees and mailing address.



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