Last Minute H-1B Filing Tips


It is a busy time of the year for the Law Offices of Jacob J. Sapochnick, as we begin to box up and ship out the hundreds of H-1B petitions that will count toward the cap for fiscal year 2016. Tomorrow marks the very first day that H-1B petitions will begin to be accepted by USCIS. If your H-1B petition will not be received by USCIS on the very first day of the H-1B filing season (April 1st) do not fret. USCIS will continue to accept H-1B petitions through the first five business days of the filing season until the cap has been met. Receipt of your H-1B petition on April 1st does not guarantee that your application will be chosen in the randomized lottery. In fact, we have had clients file at the very last minute who have ended up being chosen in the cap. During the next few days, USCIS will carefully monitor the amount of H-1B petitions that are received and make an announcement once the cap has been met. Once the announcement has been made, no more petitions will be accepted for the lottery. Petitions received in excess of the cap will be rejected by USCIS. Employers will know that their H-1B petition has been chosen in the lottery if they receive a ‘notice of receipt’ in the weeks following the randomized selection process. Last year, receipt notices for H-1B petitions, filed without premium processing, started coming into our office in late April, while rejection notices did not appear until mid to late June. Petitioners may opt for premium processing to expedite the notification process. Although it is very easy to get lost in the chaos of H-1B season, it is important not to lose sight of what’s important this filing season.

To help ease your anxiety this H-1B season we are providing you with our last minute filing tips:

  1. Employer’s Financial Obligations: Employers must be prepared to pay their workers at least the Prevailing Wage based on the employee’s occupation and actual place of employment. Employer’s must understand their obligation to honor this financial commitment during the time the employee is working for the employer in H-1B status. Failure to do so can have serious consequences for the employer;
  2. Terms of Employment must be agreed upon: Employers should be on the same page as their employee, regarding the terms of the employment including: job title, wages to be paid, place of employment, dates of intended employment, hours to be worked, other compensation, etc. This information must be accurately stated on the Labor Condition Application that the employer has submitted to the Department of Labor;
  3. Right to Control: The employer must demonstrate that they have the right to control the employee’s work if the foreign worker maintains any ownership interest in the company they will be working for;
  4. Include Two Original Signed Copies of the Certified Labor Condition Application (LCA). The employer must wait at least one week for the Department of Labor to certify the LCA. Once it is certified, the employer must sign two copies (one for the original copy and one for the duplicate copy) and include the copies in the H-1B package. The employer should go through the certified LCA very carefully to ensure that all information is as accurate as possible;
  5. Certified LCA: Make sure the H-1B forms reflect the correct LCA number that appears on the certified LCA that has been signed by the employer. This tip is very important, especially for employers who have filed multiple LCAs in the case that the employee may work at multiple work locations;
  6. Ensure accuracy on forms: Make sure the employee’s job title, wages, dates of intended employment, work location, and hours to be worked, that appear on the H-1B forms matches the information on the certified LCA. If the petition is selected in the lottery, serious discrepancies are likely to come up later in the form of an RFE;
  7. Dependents: If the employee has any dependents presently in the United States in another nonimmigrant visa category, a properly signed and completed Form I-539 Application to Change Nonimmigrant Status must accompany the H-1B visa package. Supporting documentation for each dependent must also be included with the I-539 petition;
  8. If the employee’s dependents are living abroad, they can skip step 6 and obtain their H-1B visas at a US Consulate abroad along with the H-1B worker;
  9. WARNING Avoid duplicate filings. 8 CFR § 214.2(h)(2)(i)(G) explicitly states that “an employer may not file, in the same fiscal year, more than one H1B petition on behalf of the same alienif the alien is subject to the numerical limitations of section 214(g)(1)(A). Filing more than one H-1B petition on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions.” Multiple H-1B petitions filed on behalf of the same alien by different employers during the same fiscal year is permitted although approval of such petitions is discretionary. Petitioners may be asked to demonstrate that a ‘legitimate business need’ exists in filing more than than one H-1B petition for the same alien;
  10. Filing Fees: Ensure that all appropriate filing fees have been included in the petition;
  11. Signatures: Ensure that all signatures appear in the correct places. DO NOT sign in the spaces designated for attorneys or authorized representatives. Failure to sign the forms correctly may result in a rejection alone;
  12. Consular Processing or Change of Status: Verify with the employee will obtain their H-1B visa via consular processing or whether they will seek a change of status (from another valid nonimmigrant visa status);
  13. Clearly Indicate the Cap Applied to on Cover Letter and Package: Verify which cap the employee is eligible for and clearly state the cap on the cover letter, forms, and H-1B package. If the employee has a foreign degree that is equivalent to a U.S. Bachelor’s degree, they belong to the Bachelor’s cap. If the employee has a U.S. Master’s degree or higher, they belong to the Master’s cap and have additional chances of being chosen in the lottery;
  14. Educational/Work Experience Materials: Ensure that copies of the foreign worker’s diploma/degree, complete transcripts, educational evaluation, resume, and any other relevant documents have been included in the H-1B package. If the foreign worker is applying on the basis of work experience, work experience letters and letters of expertise must also be included containing original signature;
  15. Duplicate copies: Include a duplicate copy of the original H-1B package. All Forms, attestations, and cover letters must contain original signatures. The LCA must also include original signature. All H-1B petitions require that a duplicate copy be included, in addition to the original bundle of documents. Failure to include a duplicate copy may render a rejection notice. It is recommended that petitioner’s keep a duplicate scan and copy of the entire H-1B petition mailed to USCIS for their records. The foreign worker will need a copy of the H-1B petition for visa issuance at a US Consulate abroad, if approved;
  16. Triple check all petitions to ensure all information is accurate and that all supporting documentation has been included (copy of passport biographical pages etc.);

Remember that even if you are not chosen in the lottery this year, it is not the end of the world. We would be happy to explore other options and accompany you on your immigration journey.

For more tips please visit our website. We wish you the best of luck this H-1B season. For more information about the H-1B visa please read our H-1B Guide.