What you should be doing NOW to prepare for H1-B Season FY 2018

As many of you know the H-1B visa lottery for fiscal year 2018 is fast approaching. As usual, the competition will be fierce, as hundreds of thousands of highly skilled professionals prepare to file their H-1B visa petitions beginning April 1^st through the April 7^th deadline. While filing by April 1^st (the first day that applications are accepted) certainly gives applicants greater peace of mind, filing before the April 7^th deadline does not necessarily increase an individual’s chances of being selected in the lottery. Throughout the years, our office has seen the selection of many petitions that were filed on or close to the April 7^th deadline.  With that being said, we expect the competition this year to be even more intense, that is why we want to give you our top tips about what you should be doing NOW to prepare for H-1B season and increase your chances for success.

First some statistics on fiscal year 2017:

• For fiscal year 2017, USCIS received over 236,000 H-1B petitions, which included petitions counting toward the general cap and advanced degree exemption; approximately 3,000 more petitions when compared to H-1B petitions received for fiscal year 2016. This trend is likely to continue, giving you all the more reason to prepare for the H-1B season early on.
• For fiscal year 2017, the H-1B cap was reached within the first 5 business days of the H-1B filing period (April 1 to April 7). We expect this trend to continue as in previous years. During fiscal year 2017, USCIS received more than 20,000 petitions for the advanced degree exemption. This number will undoubtedly increase for fiscal year 2018.
• For fiscal year 2017, USCIS conducted the randomized computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas counting toward the advanced degree exemption first. Then, unselected advanced degree petitions were given a second chance of being selected by being placed in the lottery toward the general 65,000 cap.  Individuals holding an advanced degree from the United States thus have two shots at being selected for the lottery.

Chances of selection

The chances of being selected in the lottery for fiscal year 2017 ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree or equivalent. Compare this to the chances of being selected in the lottery during fiscal year 2016 which ran at 60% for U.S. advanced degree holders, and 30% for bachelor’s degree holders or the equivalent. We expect the percentage of selection to continue to increase for U.S. advanced degree holders and foreign workers holding bachelor’s degree or equivalent, by roughly 5% according to recent statistics. This of course will depend on the demand for the H-1B visa for fiscal year 2018.

Office Stats

For fiscal year 2017, 35%  of H-1B cap-subject petitions that were filed by our office were selected in the H-1B randomized lottery that took place early April 2016. 13% of those petitions were filed with premium processing, while 22% were filed with regular processing. In total our office filed 55 H-1B Petitions: 15 advanced degree petitions and 40 bachelor’s cap or equivalent petitions. Of these, 46 were filed with regular processing and 15 with premium processing. The majority of these petitions were filed with the California Service Center. Of selected petitions for fiscal year 2017, the top specialty occupations included: Applications Developer, Market Research Analyst, and Software Engineer.

H-1B Overview

As in previous years H-1B petitions for fiscal year 2018 will begin to be accepted by USCIS on April 1, 2017 up until April 7, 2017. Foreign workers in specialty occupations and their employers will compete for one of the coveted 65,000 H-1B visas available each fiscal year. The H-1B visa program is limited to a 65,000 congressionally mandated visa cap. Foreign workers holding a U.S. Master’s degree or higher are exempt from the 65,000 cap, however only the first 20,000 advanced degree petitions received by USCIS will qualify for the cap exemption. In addition, certain foreign workers such as foreign workers who have been offered employment under U.S. Chile or U.S. Singapore free trade agreements, and foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are exempt from the cap, according to the Consolidated Natural Resource Act of 2008 (CNRA). Advanced degree petitions received after the 20,000 spots have been allocated will count toward the regular cap along with foreign workers holding bachelor’s degrees (or equivalent including work experience in lieu of formal education). USCIS will receive more than the 65,000 petitions for the H-1B visa program during the first five business days that the application period is open, from April 1^st to April 7^th. When the cap has been reached, USCIS will make an announcement, in recent years this announcement has been made on April 7^th and begin the selection process to fill the 65,000 cap through a randomized lottery system. Petitions that are not selected will be rejected along with their filing fees. Duplicate H-1B petitioners during the same fiscal year, are not allowed, and may be subject to sanctions. Employers may not file an H-1B petition on behalf of an employee more than 6 months before the employee’s intended start date. Once an H-1B visa worker has been selected and approved, the foreign worker may begin employment on October 1^st of that fiscal  year. The H-1B visa is issued for a three-year period that can be extended for an additional three years.

Will I qualify?

In order to qualify for an H-1B visa, the foreign worker must possess a combination of specialized training, education, and/or relevant work experience that is equivalent to training acquired with the completion of a U.S. bachelor’s degree or higher. There must also be an employee-employer relationship between the foreign worker and U.S. employer who will file the H-1B petition on behalf of the employee. There are also a number of obligations for the U.S. employer. Firstly, the employer must draft a letter of support on company letterhead describing the proffered position to be held by the foreign worker and discussing the qualifications of the H-1B worker for the position. If the foreign worker obtained the equivalent of a U.S. Bachelor’s degree abroad, they must obtain an academic evaluation from an accredited evaluation service. If the foreign worker does not have formal education, but has relevant work experience, the foreign worker must provide expert opinion letters, and/or letters from Beneficiary’s previous employers demonstrating that the Beneficiary has experience directly related to the specialty occupation. Second, the U.S. employer must be prepared to pay the foreign worker at least the actual or prevailing wage for their occupation, whichever is higher, in filing the H-1B petition, should the foreign worker be selected and approved for the H-1B visa. Third, the employer must also file a Labor Condition Application with the U.S. Department of Labor stating the physical location where the employee will work, and other terms and conditions for the position including the prevailing wage and number of hours to be worked. Fourth, the employer will be required to provide documents in support of the H-1B visa such as copies of materials on the company’s business, income tax returns, and other financial documents. Failure to comply with the terms stated on the LCA is a serious violation. Failure to pay the foreign worker the prevailing wage may land the employer in a precarious position as a “willful violator.” Employers and their potential employees should always consult with an attorney before proceeding with the filing of an H-1B petition to fully understand their obligations, and compliance with those standards. If your employer is H-1B dependent (the proportion of the number of H-1B workers in the company is higher than the total number of full-time employees in the company), or you are a foreign worker on a J-1 visa subject to the 2-year foreign residence requirement, it is strongly recommended that you obtain counsel from an attorney.

Although H-1B visa recipients are typically employed in the STEM fields as scientists, engineers, computer programmers, software developers, etc. there are other fields for which an H-1B visa is appropriate such as a general manager, lodging manager, fashion model, director of business development, business development specialist, health services manager, technical writer, and much more.

H-1B Requirements

• a foreign worker must possess both a theoretical or practical application of a body of highly specialized knowledge;
• an employer-employee relationship must exist. Only a U.S. employer can petition the entry of a foreign employee by filing USCIS Form I-129 Petition for Non-immigrant Worker. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise or control the work of the employee;
• the foreign worker must possess a bachelor’s degree, its foreign equivalent, or relevant work experience. If the foreign worker does not have formal education, but has at least 12 years of relevant work experience related to the specialty occupation, they may still qualify for an H-1B visa providing expert opinion letters and letters from previous employers attesting to their relevant experience. Please contact our office to discuss your credentials if this is your situation;
• the foreign worker must be employed in a specialty occupation related to their field of study. A specialty occupation is an occupation that requires a bachelor’s degree or its equivalent;
• the foreign worker must be paid at least the prevailing wage for the specialty occupation in the area of intended employment;
• the U.S. employer must register their FEIN with the Department of Labor (DOL) prior to submission of the Labor Condition Application (LCA)
• once the employer has registered their FEIN, the employer must file an LCA with the DOL for each foreign worker they will petition for an H-1B visa and wait for the LCA to be certified by the DOL. It takes approximately 2 weeks for the DOL to send the certified LCA to the employer for signature. The certified LCA must be signed by the employer and included with the H-1B application.

STEP ONE: Have an Employer-Employee Relationship

To be eligible for the H-1B program first and foremost you must have an employer-employee relationship. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise, or control the work of the H-1B worker. An individual cannot apply for an H-1B visa on their own, rather a U.S. employer must be ready, willing, and able to petition the employee by filing USCIS Form I-129 Petition for Non-Immigrant Worker and other relevant forms. This means that the employer must be prepared to demonstrate that they will pay the employee the prevailing wage upon approval of the visa. In addition to footing the bill for the H-1B visa, the employer must sign all forms, and provide a letter of support describing the proffered position, and the Beneficiary’s credentials that are relevant to the specialty occupation (academic or work experience). The employer must also sign a certified LCA promising that they will pay the prospective employee the prevailing wage and comply with the terms of the petition. The employer must be prepared to pay the filing fees for each of the forms associated with the H-1B petition. These are all very serious obligations. Your employer must fully understand what they are.

In sum the employer is obligated to:

1. Provide a petitioner letter of support on company letterhead describing the position with discussion of the employee’s credentials, and the terms and conditions of employment;
2. Sign and remit payment for all H-1B forms;
3. Pay the foreign worker the actual or prevailing wage for their occupation (whichever is higher);
4. Provide company documents including financial documents such as income tax returns, FEIN letter from the IRS, Secretary of State Registration, Income Tax Returns and Evidence of Financial Position, Brochures, Website printouts, information on the products or services offered. If the company is a start up company additional documents are required;
5. Pay the prevailing wage: the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The prevailing wage is determined based on the occupation and work location where the foreign worker will be employed. Employers can access information on the prevailing wage by visiting the Online Wage Library published by the Foreign Labor Certification Data Center (OFLC).
6. Employers must attest and be prepared to demonstrate to the DOL that they will either pay wages the H-1B worker that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the position, or pay the foreign worker the prevailing wage for the occupation in the area of intended employment;
7. Employers make such an attestation when submitting the Labor Condition Application (LCA) with the DOL. When submitting the LCA, the employer must also state the physical location where the employer will be working;
8. The employer must register their FEIN number with the DOL before submitting an LCA.
9. At the time the employer files the I-129 Petition along with the H Supplement, they must sign the certified LCA and maintain public access records and remain H-1B compliant.

STEP TWO: Have education or relevant experience to the Specialty Occupation

To qualify for the H-1B, the Petitioner must provide evidence that the foreign worker:

a) possesses a bachelor’s degree or higher or equivalent work experience for the particular position sought;

b) that the degree requirement is common for the particular position within the industry, or that the job is so complex or unique that it can only be performed by someone possessing a bachelor’s degree or equivalent work experience in a relevant field for the position;

c) that the employer normally requires a degree or its equivalent for the position or;

d) that the nature of the duties necessary to perform the position are so specialized and complex that performance of the duties is associated with attainment of a bachelor’s degree or higher, or equivalent work experience.

STEP THREE: Foreign education? You need an Academic Evaluation. No formal education? You need relevant work experience!

To qualify for the H-1B visa, you must possess a theoretical or practical application of a body of highly specialized knowledge and a bachelor’s degree or its equivalent in work experience in lieu of a degree. The foreign worker’s degree or equivalent work experience must be directly related to the specialty occupation they seek. If the foreign worker has attained U.S. bachelor’s degree equivalency abroad, the foreign degree and foreign transcripts must be evaluated by an accredited credential evaluator who can attest to the equivalency. A copy of the academic evaluation must be included with the H-1B petition, in addition to copies of the foreign degree and transcripts with translations. Obtaining transcripts from foreign institutions and academic evaluations takes TIME to complete. Often evaluators require the applicant to obtain their original transcripts and original diploma from the foreign institution. Evaluators may need several weeks from the date these materials are provided to adequately complete an evaluation. Stay ahead of the game and obtain your academic evaluation as soon as possible.

Addressing a common myth: You do not need a bachelor’s degree or its equivalent to qualify for the H-1B visa

If the foreign worker does not have a degree or possesses an unrelated degree to the specialty occupation, but has at least 12 years of relevant work experience directly related to the specialty occupation position, the work experience will demonstrate the foreign worker’s theoretical or highly specialized knowledge.

In this situation the foreign worker will need to provide their resume, a detailed statement highlighting the role that will be performed and how the work experience relates to the role, written opinions from experts or previous employers in the field attesting to the foreign worker’s experience related to the position. Writing this statement, and obtaining expert opinion letters and letters of recommendation also takes TIME. Get these items out of the way EARLY on. If the foreign worker did not complete their bachelor’s degree but completed at least one year of the course of study, each year completed for the degree is equivalent to 3 years of work experience. For all work experience petitions, expert opinion letters and letters of recommendation are required.

Some petitions will need to demonstrate a combination of academic and work experience to qualify applicants for the H-1B visa. In this situation, the foreign worker’s academic and work experience will need to be evaluated. The foreign worker will need to provide a copy of their degree, transcripts, expert opinion letters, and letters from past employers to an accredited evaluator. To find out if this is the case in your situation, please contact our office to discuss your individual needs.

STEP FOUR: The U.S. Employer and Employee Must Stay Informed Early On

Whether you are the U.S. employer or prospective employee, to increase your chances of success, it is important for both parties involved to stay “in the know.” If you are the U.S. employer and you are certain that you want to petition a foreign worker, contact an attorney as soon as possible to explain the process, the filing fees involved, the documents that will be needed from you to prepare the H-1B petition, and your rights and obligations. If you are the foreign worker, and are still in the process of locking in your employer-employee relationship, or perhaps you are still negotiating the salary you will be paid, it is strongly recommended that you and your employer make an appointment with an attorney to discuss the filing procedure in its entirety, and to discuss your rights and obligations. This meeting will help both parties understand the process, and help you gather the necessary documentation sooner than later.

For more information on the H-1B visa please visit our website. For a free first time consultation please contact our office.