H1-B Visa

An H1-B visa is permission for an immigrant to live in the United States on a temporary basis to work for a U.S. employer. To be eligible, the foreign worker must either have a master’s or bachelor’s degree. In general, H1-B visas are subject to a lottery as there are only a finite number available^[1]. Prior to March 1, 2020, the process was rigorous for employers to apply on behalf of their employee(s) as they had to petition within a small window frame as well as pay thousands of dollars in filing fees. Due to the high risk of not being selected, many employers felt discouraged to sponsor foreign workers.

Now, as of March 1, 2020, USCIS has streamlined the process to be simpler and less burdensome. Instead of submitting the entire application upfront, which included the petition, labor condition application and thousands of dollars in filing fees, the employer merely needs to register online in order to enter the lottery. Upon registration, each employer only needs to pay $10 per employee and answer twenty (20) questions about him or her. About ten days after the registration period closes, the employer/employee(s) will already know if they are indeed selected or placed on a waiting list. If so, the employer can continue the process by appling for a Labor Condition Application with the Department of Labor, and filing their H1-B petition (Form I-129) to USCIS as early as April 1st. This means, an employer will only lose $10 per applicant if not selected in the lottery as opposed to thousands of dollars in filing fee and attorney fees.

Prior to March 1, 2020, an immigrant with a master’s degree had about a 60% chance of getting selected in the lottery; whereas, an immigrant with a bachelor’s degree had a 30% chance. Now, with the new changes, the lottery will become more competitive and the chances of being selected will be even lower.

• Lawful status for three years;
• Extension is possible for additional three years;
• Work lawfully in the United States;
• Travel outside of the United States;
• Bring spouses and unmarried children to the United States;
• Spouses may be eligible to apply for authorization to work;
• Pathway towards obtaining a green card by employer

Since the H1-B process is very competitive, and will become even more competitive with the changes starting in March 1, 2020, you need a skilled immigration attorney to increase your chances of being selected. There are three steps to the process that require your Lavy Law attorney’s expertise: (1) Registration for lottery, (2) Labor Condition Application, and (3) Petition.

At the registration stage, your application can be denied if you make a small mistake such as submit multiple applications. This means you need a Lavy Law attorney to ensure that you do not miss the window of opportunity and have to wait until next year.

The second stage is filing the Labor Condition Application, also known as LCA. This application is filed with the Department of Labor, a separate agency from USCIS, and contains the details of the H1B beneficiary’s employment. For example, it states the employment title, the wage to be paid, and the prevailing wage for the beneficiary’s prospective job. Additionally, the employer must attest to important statements in the LCA that carry civil and/or criminal liability for the employer. Since the LCA controls the scope of employment and sets forth promises and obligations by the employer, it is important for a Lavy Law attorney to properly draft it.

The final stage is where your Lavy Law attorney will assist the H1-B employer to fill out the Form I-129, gather supporting documents, and pay the correct amount of filing fees. In particular, your attorney will work with you to gather (1) evidence showing the proposed employment qualifies as a specialty occupation, and (2) evidence showing the beneficiary is qualified to perform the specialty occupation. If your want to change the H1B beneficiary’s status or extend it, then we will also gather (3) evidence of the beneficiary’s maintained status. It is valuable for an attorney to file the petition on behalf of the employer to make sure the right supporting evidence is included; otherwise, the petition could be rejected and the fees forfeited.

Therefore, if you are an employer who wants to sponsor an immigrant to work for you, or an immigrant who has a prospective job offer with a U.S. employer, Contact Us for a free consultation on the H1B visa.

^[1]Some employers may qualify to be cap-exempt and are allowed to file for H1-B petition at any time. Such cap-exempt employer includes: (1) an institution of higher education, (2) related or affiliated to a higher education institution, or (3) nonprofit research organization or a governmental research organization. Additionally, a case can be made for workers who will be at the location of a cap-exempt employer.