Filing Tips for April 2014 H-1B Season

By Ekaterina Powell, Esq.

As April 2014 is approaching, we would like to remind our readers to start preparing for H-1B filing. As you may already know, there is a numerical limit on the H-1B visas allotted for each fiscal year. There are 65,000 H-1B visas available with additional 20,000 visas for those with U.S. Master’s degrees. What is important is that visas are not recaptured if H-1B is not approved, thus only 65,000 first filed H-1B petitions will be considered.

April 1 is the first day when you can file a cap-subject H-1B petition. If you do not file on April 1, you risk not getting into the cap. Even though the application is in April, the H-1B employee will not be available to start working for the employer until the beginning of the fiscal year, which is October 1, with the limited exceptions described below.

Things to do before the application period begins:

1. Interview and find an employer who is willing to sponsor H-1B visa

This can be a daunting task for foreign nationals but is doable especially if the employer knows what H-1B visa is and what is required from them. A lot of employers are hesitant to hire foreign labor because of a few misconceptions about the process. The most common misconceptions are described below.

Myth: H-1B process is so complex and lengthy that it is not even worth trying

Reality: Despite certain complexities of the process, an immigration lawyer will take the employers through each step of the application making it as easy and painless as possible. The immigration lawyer will also be able to advise the employers on the proper H-1B recordkeeping and compliance procedures to protect the employers’ interests.

Even though adjudication of H-1B visa may take some time, the employers are always given an option to apply for Premium Service with USCIS, which guarantees 15-day processing of H-1B visa petition. Of course, even though the petition is approved, the H-1B worker cannot use it until October 1, but there are exceptions for OPT holders, which will be described below.

Myth: H-1B employer has to show that there are no U.S. workers available for the position

Reality: In fact, this is a notion from the employment-based green card process and does not apply to H-1B petition, with very limited exceptions for those employers whose significant workforce is already comprised of H-1Bs nonimmigrants.

In H-1B context, you do not have to show that there are no U.S. workers available and you do not have to place advertisements or recruit for the position before hiring an H-1B worker.

Myth: H-1B approval creates a contract between the employer and the employee, under which H-1B employer cannot terminate the employee prior to the expiration of H-1B visa

Reality: In fact, H-1B does not change the nature of “at will” employment. If the employer is unsatisfied with the employee’s job performance for any reason or if the company simply changes the mind, the employer can always terminate its employment relationship with the H-1B nonimmigrant. The employer just needs to follow simple steps to withdraw its H-1B petition, as directed by the immigration attorney.

Myth: H-1B employer has to document ability to pay the wage to H-1B worker

Reality: This is again confusion with the employment-based green card process. In Employment-Based Green Card process employers are indeed required to document their ability to pay the prevailing wage for the employee and have to show it either by establishing that their net profits or assets are higher than the prevailing wage to be paid to the employee or that the employee has been paid that prevailing wage.

In H-1B context, employer has to agree to pay the prevailing wage required to the H-1B nonimmigrant but is not required to prove its ability to pay the wage. Normally, with the established companies it is enough to present a website printout or brochures/catalogs to show that the company is viable and is doing business.

Myth: If prevailing wage for a full-time position is too high, this means that H-1B is out of the question

Reality: Even if the wage for a particular position is too high and the employer cannot afford to pay it, there may still be options available. One option is to try the employee out and offer him/her a part-time position, which will bring the yearly wage down significantly. Then, later on down the road, the employer can always switch it to a full-time H-1B for good employee’s job performance.

Another option is to see whether the employee’s duties fall under a different occupational title, which justifies a lower prevailing wage. An immigration attorney will be able to help you find an alternative position for the employee.

Remember, if you are uncertain about hiring an individual on H-1B and if you miss April 1 deadline, you may not be able to do it for another year, making it harder for your business to meet production deadlines or obtain the labor necessary to fulfill customer demands.

2. Use your own company to sponsor yourself for H-1B visa

If you are planning to open your own company or use another company where you have an ownership interest for H-1B visa, follow our tips in “H-1B for Entrepreneurs” article on our blog.

3. Obtain FEIN verification

If the employer has never filed H-1B petitions, then before the DOL grants its certification of a Labor Condition Application (a pre-requisite for filing H-1B with USCIS), the DOL has to verify the company’s FEIN number.

Thus, the employers should be ready to produce a document verifying the company FEIN.
At least one document from the sample list below that clearly displays the FEIN and the name of the employer can serve as proof of FEIN:

• Documentation from IRS noting assignment of FEIN or any other correspondence from IRS on IRS letterhead
• Federal or State tax return (only acceptable with a pre-printed label) or a pre-printed tax coupon
• Documentation from employer’s financial institution showing employer’s FEIN
• Business license, or other certifications of business existence that indicate the employer’s FEIN in an official format
• Secretary of State registration that indicates the employer’s FEIN in an official format
• Official and/or government documents that indicate the name of the employer and the FEIN in an official format
4. Collect H-1B-related documentation for the H-1B beneficiary

Gather the H-1B-related documents for the beneficiary, such as passport, visa, I-94, EAD, I-20 (if any), DS-2019 (if any), J-1 two year rule waiver (if applicable), copies of all current and prior I-797 Approval Notices, Resume, Degrees and transcripts with translations.

In addition, if the beneficiary’s legal status is dependent on the spouse’s status (e.g. H, L, E), the beneficiary will also need to produce evidence that the spouse has maintained his/her status in the U.S. The beneficiary will need to present the spouse’s I-797 approval notices granting the nonimmigrant status, visa copies, W-2 issued since beginning work in the U.S., and two recent paystubs.

5. Obtain evaluation of the beneficiary’s education/work experience

If the beneficiary has a foreign degree, then before submitting H-1B, the beneficiary needs to obtain evaluation of that foreign degree to determine U.S. equivalency. Only those individuals whose education/work experience has been evaluated to be equivalent to U.S. bachelor’s or higher degree can apply for H-1B. The immigration lawyer handling the H-1B case will be able to assist with arranging the evaluation of the beneficiary’s foreign education/work experience.

For practical guidance on how work experience can be equivalent to a U.S. bachelor’s degree, please refer to our previous blog articles: “Wondering if you can qualify for H-1B visa if you do not have a degree?” and “H-1B Petitions based on Beneficiary’s Work Experience – Updates of obtaining an H-1B visa without a Degree.”
6. Note to all F-1 holders: Find out whether you may keep work authorization after the expiration of your OPT up to October 1

If you are currently on OPT and your OPT is expiring before April 2014, then your F-1 status can be extended through October 1, 2014, as long as the H-1B petition is filed and accepted by USCIS. This means that you will not be able to work after the expiration of your OPT but may remain in the U.S. until the petition is adjudicated. If the H-1B is denied, you will still have standard 60 days to depart the U.S., counted from the denial date.

If your OPT is expiring sometime between April and October 2014, then your work authorization can be extended through October 2014, as long as the H-1B petition is filed and accepted by USCIS. This is a significant benefit for OPT holders because they can continue working for the employer without interruption.

7. Most Importantly: Don’t try to do it yourself or use inexperienced help!

Our office has seen too many clients with previous unsuccessful attempts to file for H-1B when they tried doing it themselves or retained assistance of inexperienced attorneys or immigration consultants. Don’t risk your career and ability to stay in the U.S. by relying on incompetent help!

As we see with many clients who come to our office after wasting their money and time in unsuccessful attempts to apply, cheap help can hurt! Many immigration consultants and even attorneys do not take their time to understand the client’s individual situation and submit just poorly drafted forms and brief letters that do not address the H-1B criteria, which unfortunately often times results in denials of H-1B petitions. In these circumstances, appeals are unwarranted because the decision is correct based on the limited documentation and poorly designed explanations presented to USCIS with the H-1B petition. Remember, appealing the denial is time-consuming and expensive. It is important to do it right from the start.

If you try to file H-1B yourself and miss something or if you use someone inexperienced, you will not only lose the filing fees and the opportunity to employ the H-1B worker, but it will simply be too late to apply again as H-1B visas are most likely going to run out fast.

With fewer than three months left before the application period begins, it is very important to start collecting all the documents needed and choose an experienced immigration attorney that is right for you.

Hurry! Your H-1B has to be ready in March for filing on April 1. We don’t know how long the visas will last, but looking at last year, the visas may run out within the first week, which means that only those petitions that are selected in the lottery will be adjudicated. Don’t wait until the last minute! You don’t want to miss the deadline as in that case you will have to wait until April 2015 in order to apply!

Our office has a track record of success in H-1B cases for a variety of industries with businesses ranging from start-ups to large multinational companies. We will be happy to assist you with your H-1B needs. Please feel free to contact our office for a free consultation.
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