H1B Visas: It's That Time Again!

Welcome to the H1B Visa!

Who doesn't feel like a zombie after H1B filing season?

DUN DUN DUN, DU-AHHH, DUN DUN DUN, DU-AHHH!!   

Yes it's that fable time of year when when employers and foreign nationals alike do the H1B visa shuffle, calculating LCA's, drafting job descriptions and offer letters, sweating over filing fees, and wringing hands over which lawyer to use and how much to pay, all in order to thread the proverbial "eye of the needle" we know as the April 1 submission deadline!  

Indeed, no better song reminds of H1B filing season than Time of the Season by the Zombies!  ← Check this link and you might feel the same!  And who doesn't feel like a zombie--whether HR director, foreign national, or lawyer--after all submissions are said and done?  

So it's a new year, and tis now the season for all sorts of H1B visa folly begins.  Of course the folly and confusion is usually attributed to poor planning and lack of competent advice.  Our firm has already fielded inquiries regarding the upcoming H1B filing season, and give high marks to those doing so!  Plan now for the April 1 application and remove all regret!  

Fear the cost of a proper H1B petition now, regret a bad one forever.

I am passionate about equal application of the law to all noncitizens.  I also understand the law because I helped make it. But more importantly, the government is often flawed in applying their own rules, thus requiring a lawyer not intimidated by a bureaucrat’s title, and one who understands the entire immigrant experience—because I’ve lived it. Son of an immigrant.

So with all the controversy, intrigue, and confusion devoted to H1B visa petitions, we thought a simple review of this oft discussed visa in order.

First, it is sometimes easy to forget the purpose of an H1B visa. Under Immigration and Naturalization Act sections 101(a)(15)(H)(1)(b) and (b1), a business may sponsor a foreign national for temporary work in the United States in a specialty occupation if the foreign national qualifies in that occupation.   Intellectually, at least, it is really that simple.  

Generally, the business sponsor must first demonstrate the specialty job (as defined by the Department of Labor) exists in the business, that the occupation requires a bachelor’s or higher degree, and it will pay the “prevailing” wage for that job.  Second, the foreign national must have a degree in that area of work.  Other work experience in that arena can be taken into account, but in limited situations.   Third, the sponsor must directly employ that foreign national.

Moreover, there are 4 important reasons for an employer to begin the H1B process now:

1. Labor Certification. To determine the prevailing wage, the U.S. Department of Labor must first examine the precise job for which the foreign national is being sponsored. Development of a proper job description doesn’t often capture the attention of U.S. recruiters, but in the immigration world it is a critical part of the visa development and requires time to develop and approve at the proper wage. If the candidate’s green card may be sponsored in the future, even more preparation should be taken.

2. Timing. There were so many H1B visa applications last year that the USCIS used a lottery system just to consider a candidate. Taking plenty of time beforehand to cross all T’s and dot all I’s prevents silly mistakes from nullifying a perfectly good recruit. In 2013, the quote was filled in 3 days. As such, a correct application must be express mailed by March 31!

If you can rewind past immigration applications, don't worry.

3.  Education Requirements. A foreign national must have at least a U.S. bachelor’s degree or its foreign equivalent in that specialty occupation to qualify for an H1B visa. If a U.S. degree is not available, time is needed to conduct an “educational equivalency” to submit with the application.

4. Off-site Placement. Rejection rates for off-site placement visas of IT consultants are running about 60%. In our view, this is because companies ignore required documentation to establish the employer-employee relationship.   This rigorous standard often comes as a surprise to many first-time H1B applicants, and even those recently re-entering the fray.   With adequate time to prepare, however, our clients see success even in these hard times for off-site placement.

Chaudhary Law Office is happy to answer questions regarding the H1B visa process.  We even provide an on-site presentation about the process.  Below are some additional tips and frequent advice we give to clients:

 •  Do everything to start the process early, now if possible.

 •  Every application, regardless of sponsoring company, is considered independently by the    USCIS.

 • Avoid legal advice from “consultants,” online discussion forums, friends, and “this is how they/we did it before.”

 • The April 1st filing deadline does not apply to educational institutions, non-profit entities, or those with H1Bs in the past six years.

• Some employers allow their H1B candidates to choose their own attorney to process the  visa. But the attorney always represents both business and foreign national.

• The employer must foot ALL fees!  There can be no reimbursements, paycheck deductions, or other schemes to recover fees from the employee. No exceptions. Ever.

• Be mindful of OPT expiration dates, S.T.E.M. extensions, and the “cap gap.”

• Businesses should have a physical office location, and good HR process.

• H1B visas bring strict document retention requirements. Wage and labor violations bring heavy penalties.

• Pay attention to dependent application dates and potential changes of status.

• Of course, any employer can submit an H1B visa application. But the employment-based visa process is costly.  

Indeed, the future of a person and their family is on the line. Why then risk denial by cutting corners?  And in the highly competitive IT staffing industry, cutting corners with immigration authorities negatively effects one’s reputation among valuable IT recruits.  Just take a quick look at glassdoor.com.

Don't fear success, but stop at nothing to ensure it.

And although no attorney should guarantee a result, the Minneapolis immigration attorneys at Chaudhary Law Office counsel clients according to best practices, not bare minimum. Unfortunately, some attorneys submit weak applications only to collect additional fees when a Request for Evidence is issued.

We believe in doing it right the first time, because our reputation ultimately stands on visa approvals, not knee-jerk submissions. If a company has difficulty meeting standards, we enjoy counseling the business to bring it up to speed.

There are many intricacies of employment-based visas. If readers intend on submitting an H1B, or are even considering it, tis the season to avoid H1B folly before it happens.