For immigration attorneys and employers of foreign nationals alike, the frenzy of the spring H-1B Cap season is right around the corner. Now is the time to start preparations for the April filing deadline.
Each year, 85,000 new H-1B work visas become available for high-skilled workers seeking employment in an “H-1B specialty occupation.” Many more H-1B applications are filed than there are slots available, and an H-1B “lottery” is triggered. While filings dropped slightly last year, the lottery is expected to be triggered again this year. But there might be other differences. The Administration has been floating the idea of changes to the lottery, including possible pre-registration to focus on the “best and the brightest.”
To ensure your chance to sponsor an employee for an H-1B work visa, follow this check list:
- Identify current or prospective employees who may require 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 (e.g., H-4, TN, L-1, L-2, E-3, and TPS). Review Form I-9s to identify essential employees with expiring work authorization who may require H-1B visa sponsorship.
- Confirm job details for the prospective H-1B 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. Without this initial information, it is impossible to determine if the position will qualify for the H-1B visa, or if there may be wage issues or other problems with the visa sponsorship. Job descriptions must be sufficiently detailed with percentages assigned to the job duties. Level 1 wages may be subjected to heightened scrutiny.
- Contact immigration counsel: As soon as you determined you wish to sponsor an employee for an H-1B Cap visa, let your attorney know. In addition to confirming eligibility, immigration counsel can advise on other immigration strategies, especially if your application is not selected in the H-1B lottery. Engaging counsel early on is also necessary to ensure the H-1B Cap application can be completed and filed before the April deadline.
- Stay in contact with immigration counsel throughout the entire process should you have any questions: Events may occur after the application is filed that may require the employer’s assistance. This may include providing additional documents/information pertaining to the application in response to a government request for additional evidence, as well as helping to ensure an employee maintains immigration status while the H-1B application is pending. This could include reminding the employee not to travel internationally while the application is pending, as well as reminding an F-1 employee to file for an OPT STEM extension, if eligible (even if the H-1B Cap application was selected for processing). The employee’s Form I-9 also may need to be updated to indicate continued work authorization under the “Cap-Gap” regulations while the application is pending.
Starting early and working with an experienced immigration counsel can help to alleviate some of the stresses of the process H-1B Cap process and give your application the best chance at success. Following our tips will put you on the right track to avoid common H-1B pitfalls.