By Timothy M. Wheelwright, Shareholder
April 1, 2018 is an important day because all U.S. employers can finally file for new H-1B visas with an October 1, 2018 start date. The H-1B visa is the most common and sought-after temporary work visa for foreign professionals (engineers, computer professionals, teachers, scientists, and positions that require at least a bachelor’s degree in a specific field of study).
Congress has limited the number of new H-1B visas that are available each year to just 65,000. An additional 20,000 H-1B visas are reserved for those with master’s (or higher) degrees from a U.S. college or university. But don’t expect those 85,000 visas to last long because, like we’ve seen the past several years, they’re almost certain to be gone within the first week of filing.
U.S. Citizenship and Immigration Services (USCIS) recently announced that it will continue to allocate those visas the same way it has in past years: taking all H-1B petitions filed within the first week of April and placing them into a lottery to randomly select the petitions that will be accepted for processing. As a result, there is no guarantee that any filed petition will be either accepted or approved by USCIS.
The second year of President Trump’s “Buy American Hire American” executive order is sure to be just as unpredictable and challenging as the first for companies seeking H-1B visas. By starting now you will give your company not only the best opportunity to have its petition selected in the “H-1B Visa Lottery,” but also to actually have it approved.
Whether your company needs 1 or 100 H-1B visas this year, make sure you’re ready to file or you’ll have to wait yet another year to claim one of these coveted visas. [NOTE: This deadline only applies to foreign workers who have never had an H-1B visa. You may at any time renew or transfer to your company those who already have an H-1B visa.]
Here are my Top 5 Tips for getting ready to file for a new H-1B visa:
#1 Focus on the job description. Having a complete and detailed job description that meets the demanding H-1B visa requirements has never been more important. The position must require no less than a bachelor’s degree in a specific field of study and the foreign worker must be qualified for the position as you have described it on the day the petition is filed. One of the takeaways from last year is the importance of the salary and making sure the salary the company is required to pay is supported by the job description, and vice versa. A best practice is to add to each job duty the approximate percentage of time that you expect someone in that position spends performing that duty in a given work week. You should also explain in detail how no less than a bachelor’s degree in the specified field of study prepares the individual to perform that particular duty, including what courses in that degree program prepare an individual to perform it. The U.S. Department of Labor’s Online Wage Library is a great resource to begin your search for job descriptions and prevailing wage information: http://flcdatacenter.com/OesWizardStart.aspx
#2 Start now obtaining translations, credential evaluations, expert opinion letters, and licenses. All supporting documents in a foreign language must be translated into English and have a certificate of translation attached. If the degree is from a foreign university, or if the foreign worker is relying upon a combination of education and experience, or even experience alone, to qualify for the job, it’s essential to obtain an equivalency report from a competent and reputable credential evaluator. Over the past year we have also seen the persuasive power of expert opinion letters to establish that a position qualifies for an H-1B visa or that the foreign worker is qualified. Additionally, if the foreign worker must have a license to function in the job (e.g., teachers and some engineers), make sure the required license is issued to them by the time the visa petition is filed. To avoid unnecessary expedite charges, and to have time to address any issues that may arise obtaining these important documents, seek these as early as possible.
#3 Start now gathering required information and supporting documents. In my experience, it’s never too early to start gathering all of the required information and supporting documentation from your company and the foreign worker. Often documents must be sent from abroad, so make sure you have plenty of time to obtain everything that is needed. Prepare organization charts that not only list job titles, but also minimum qualifications and key job duties for each position. Sometimes it is helpful to have copies of recruitment ads that were used to find the foreign worker. If this is not a new position in your company, you could also gather information about the credentials of others who have filled the position.
#4 Determine costs and who is required to pay them.
|Mandatory Filing Fee
for employers with:
|1-25 full-time employees||>25 full-time employees|
|Optional Filing Fee
(Premium Processing Service)
|USCIS recently announced that although it may initially suspend expedited processing of new H-1B visa petitions under the Premium Processing Service, it expects that will last only a short period of time. This is an optional service that often is not even necessary. It won’t give you a better chance of having your petition selected or approved over a petition that does not request it. But it is a nice service because those who request it are generally the first to know that their petition has been accepted and approved.|
|• Legal Fees|
• Credential Evaluations
• Expert Opinion Letters
• Applications for dependents
• Visa applications at United States Consulates abroad
|In most cases, these filing fees and other costs must be paid by the employer, although some costs could be paid by the foreign worker.|
#5 Seek help from experienced professionals who know immigration law. Now more than ever don’t cut any corners when applying for one of these visas. Seek the guidance and help of a competent and experienced immigration attorney who knows the H-1B visa category and how to guide employers through the application process. Most employers will have just one opportunity this year to obtain the H-1B visas they need. Make sure the opportunity is not wasted. These Top 5 Tips and best practices will give you confidence that you’re ready to file and claim an H-1B visa this year.
Extensions for those who already have an H-1B visa. On a related note, USCIS informed the American Immigration Lawyers Association that it is not considering a regulatory change to the H-1B extension rules, as had previously been reported by the McClatchy news service on December 30, 2017. Since USCIS is not considering changes to the H-1B extension rules, there is no need to take any special or different action at this time. H-1B visa extensions will continue to be filed under the current version of the regulations. Depending on travel, timing matters, driver’s license, etc., these extensions can continue to be filed up to the day before expiration and no earlier than 6 months prior to expiration, and the foreign worker’s authorization to work for your company and remain in the USA would continue even beyond the current expiration date of his or her H-1B visa status. USCIS recently announced that unlike last year, it does not plan to suspend the Premium Processing service for these H-1B extensions, although requesting this expedited processing is rarely, if ever, required.
I have over 20 years of experience helping companies apply for H-1B visas and have assembled a team of experienced legal professionals who, with a state of the art online case management system, make applying for one of these visas as easy as possible for you and your foreign workers. I’m also available to help you apply for other temporary and permanent work visas for your foreign workers. It would be great to connect, so please contact me any time at:
(801) 297-1290 [office] | (801) 499-7717 [mobile] | firstname.lastname@example.org | Twitter: @TimWheelwright | LinkedIn
Tim Wheelwright is a shareholder with the law firm of Durham Jones & Pinegar, which has offices in Salt Lake City, Lehi, Ogden, St. George, and Las Vegas. He advises individuals and businesses on routine and complex immigration matters (including temporary and permanent work visas, worksite enforcement, I-9 forms, E-Verify, etc.), is frequently tapped to advise business and community leaders and policy makers about immigration policy, and is featured as a source in local media.