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Collecting documentation and ensuring petitions are airtight takes time
Employers that want to hire foreign nationals via the H-1B visa program for employment in fiscal year (FY) 2019 should already be engaged in the application process, experts said.
The first day to file a petition with U.S. Citizenship and Immigration Services (USCIS) is April 2 for H-1B employees starting work on Oct. 1, 2018.
The H-1B is one of the most highly sought-after visas. For the past five years, cap-subject petitions were chosen for review via a lottery after the amount of applications filed far exceeded the limit of 85,000. In each of those years, the cap was reached in just five business days.
"The demand for new H-1B workers will likely again result in the new cap being reached right away in April this year, requiring another lottery process," said Andrew Wilson, an attorney with law firm Lippes Mathias Wexler Friedman in Buffalo, N.Y.
"The petitions in the lottery are chosen completely at random," said Ashley Knowland, an attorney with Global Immigration Associates, a law firm affiliated with immigration services provider Envoy, based in Chicago. "They are not even opened prior to being numbered and chosen electronically, so unfortunately there is nothing employers can do to make it more likely that a petition is initially chosen or not."
The Trump administration will almost certainly ask employers for more information on selected petitions, although USCIS recently confirmed that it is not anticipating any procedural changes affecting this year's cap filings except for a possible temporary moratorium on premium processing for H-1B cap petitions. With that in mind, it's important to be fully prepared to file by April 2 with all the required documentation to ensure the best chance of acquiring the talent you need.
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Employers can sponsor current or prospective employees for H-1B visas. Foreign workers already in the U.S. or individuals living abroad are eligible for sponsorship.
"This may include a recent graduate working for your company in F-1 status, a foreign national working for a subsidiary abroad, or individuals in other visa statuses," said Diane Metzger, an attorney in the St. Louis office of law firm Jackson Lewis.
Students, particularly those on F visas and currently working under Optional Practical Training, (OPT) should be the first group of employees to consider for an H-1B petition, said David Grunblatt, a partner in the Newark, N.J., office of Proskauer. "If you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT, except in limited circumstances."
Employers will need to ascertain whether the individuals qualify for H-1B visas, which are meant for jobs in "specialty occupations" that generally require at least a bachelor's degree.
HR will also have to figure out whether prospective hires are subject to the H-1B visa cap. Exempt beneficiaries are those who already have been counted toward the cap in a previous year or are being hired by universities, government-funded research organizations and some nonprofit entities.
By the end of January, employers should have a list of H-1B candidates and be in contact with an attorney or immigration services provider to begin working on case-file preparation.
Preparing Your Cases
The process for completing an H-1B petition can take several weeks and requires information from both the employer and the employee.
"Especially in light of last year's uptick in requests for evidence, in order to initiate the H-1B process, immigration counsel should review among other things the job duties, salary and all worksite locations for the employee," Metzger said. "Without this initial information, it is impossible to determine if the position will qualify for the visa, or if there may be wage issues or other problems with the visa sponsorship."
Since President Donald Trump issued the "Buy American, Hire American" executive order in April 2017, USCIS is especially focused on whether the job is a specialty occupation and if the salary is valid for the position. H-1B employees working for third-party clients will also likely draw enhanced scrutiny.
"Employers need to ask whether the job could be performed by someone who doesn't have a particular degree," Knowland said. "If that position can be performed by someone with a myriad of backgrounds, then it might not qualify as a specialty occupation." Some problematic categories include jobs in marketing or communications, general business or sales, she said.
Next, the individual being recruited for the job must have a degree that is related to the role that he or she will be performing, Knowland explained. However, "there are some ways to work around an employee's education, such as looking at foreign credentials or combining work history with education."
Meeting or exceeding the minimum prevailing wage requirements set by the Department of Labor (DOL) is another critical step. Employers must obtain DOL certification of a labor condition application (LCA), which is used to determine what the prospective worker should be paid based on the occupation, the work to be performed and the geographic area where the worker will be employed.
If the employee's offered wage is below prevailing wage requirements, the DOL will not approve the LCA. The standard processing time for LCAs is seven days, but during cap season it can jump up to two weeks, "so to be on the safe side, you should try to file your LCA by March 15 at the latest," Knowland said.
After receiving a certified LCA, the employer must complete a Form I-129 petition for the worker and collect any supporting documents needed, including the job description and terms of employment for the role; the company's business, marketing and financial paperwork; and the employee's work, educational, travel and immigration documents. Documents not in English must be translated.
Before sending the petition off, make sure that it is detailed and accurate. The smallest oversights—such as a missing signature, a wrong box checked or a typo on the form—can lead to a rejection, experts said.
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