5 tips for filing H-1b work visa from immigration lawyer

This article aims to help applicants for the H-1b work visa through employer’s sponsorship, and offers tips on how to correctly prepare the application.

H-1b petition is filed by the sponsoring employer on April 1st of every year to US Citizenship & Immigration Services (USCIS). Over the last five years, there were more applicants than there were quotas allocated by Congress, which resulted in a lottery of randomly selected petitions to receive the quota every year. The H-1b work visa is offered to employees who have a college degree or equivalent work experience, and require the petitioning employer to prove that the position being offered the the H-1b applicant is one that requires a college degree. This requirement is difficult for positions that do not traditionally require a college degree, such as positions in marketing, business development or administration. Therefore, it is important for the petitioning employer or the applicant to reach out to an immigration attorney to discuss meeting the requirement for the H-1b petition before spending the money on the filing fee.

Tip 1: Make sure that the employer is aware of the prevailing wage requirement and negotiate for a salary that is higher than the prevailing wage from the outset.

H-1b has a special requirements for the petitioning employer to agree to pay the prevailing wage that has been set by Department of State. The prevailing wage is wage data that has been compiled by Department of State based on geographic location of the employer. Job positions are broken down into various major categories and wage is determined by taking the average salary of workers in those positions. Many H-1b negotiations between employer and employee break down because the employer refuses to pay the prevailing wage, which is generally higher than the wage that the employee is currently receiving. Therefore, it is very important for the employee to research the prevailing wage online in the Online Wage Library and locate the correct prevailing wage based on the employer’s location and the position offered before moving forward with the H-1b application.

Tip 2: Make sure that the employer’s Federal Employer Identification Number has been verified by Department of Labor for the Labor Condition Application at least three weeks before April 1st.

H-1b has another special requirement. It requires the employer to file a Labor Condition Application with Department of Labor and attest to the fact that they require a foreign worker to fill the intended position. Recently, Department of Labor requires the petitioning employer to verify its Federal Employer Identification Number (FEIN) before it would allow the employer so submit the Labor Condition Application (LCA). It is important to note that the FEIN takes at least 5 to 7 business days to be verified, so the employer should make the time before submitting the petition on April 1st to verify the FEIN first with Department of Labor. Without a certified LCA, USCIS will not accept the H-1b petition, so getting it done early is a crucial step to a successful H-1b petition.

Tip 3: If the position being offered does not sound like it would require a college degree, it is important to negotiate with the employer about providing flexibility for the position, given the appropriate wage parameter to increase chance of approval.

Unless the position is one that certainly requires a college degree–lawyer, teacher, engineer, etc–it is important to prepare evidence that the position is one that requires a university degree when submitting the H-1b petition with USCIS. There are several ways to prove that a position requires a university degree, but the easiest way is to show that the job duties are so complex that the successful performance of the duty would require the employee to have gone through the training and learning of his or her university degree. There are other ways to prove the degree requirement, such as through industry wide survey or testimony by experts within the industry. Therefore, it is important to prepare for evidence of this important requirement, also known as the specialty occupation requirement. This is also the most frequently requested evidence for H-1b petition by USCIS when the position does not seem to readily require a degree from the University.

Tip 4: Double check the filing fee checks and make sure that all the filing fee amounts and payee information is correct.

One reason that the H-1b petition is rejected by USCIS that came up frequently is missing filing fee or the wrong filing fee. It is important to know that there are two different set of fees depending on the size of the employer. If the employer has less than 25 full time employees, then the filing fee is $1575, but if the employer has 25 or more full time employees, the filing fee is $2225. These fees include the H-1b education fee, and anti-fraud fee, in addition to the filing fee for the petition form I-129. All the fees should be made payable to Department of Homeland Security.

Tip 5: Double check Form I-129 and make sure that all the required pages are filled out completely and correctly.

The petition form for H-1b work visa is also used for several other types of work visa, so it is important to read through the form and the instructions clearly. There are pages that do not need to be filled out because they do not relate to H-1b. It is also important to note that toward the end of the form, the employer is required to fill out a supplemental form for the H-1b petition. Missing information on the application forms can cause the application to be rejected or denied.

Should you have any more questions about H-1b, please feel free to contact our office to receive additional information.

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