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Tips for the H1B Season


February 2, 2016

The 2016 H1B Quota Season is in its early phase. Those with experience filing H1B petitions will know that the time to assemble materials for quota cases is fast approaching. For those employers and foreign nationals who are new to the process, now is the time to evaluate your situations and assemble your files. Here are some basic tips:

My company has never filed a H1B petition. What is our first step?Aside from contacting an Immigration Attorney who can evaluate your case. Employers who have never filed an H1B will need to have the company's FEIN vetted by the Department of Labor. This process can take about 3-5 business days. Take care of this now, it does not matter if you decide that you will not be filing a H1B petition. It will be helpful to have this done when you do decide to file.

My H1B candidate is a recent university graduate and on their Optional Practical Training (OPT). What are the chances that their case is selected for processing? There is no way to predict with any certainty that your employee's case will be selected in the H1B quota process. All of the H1B petitions that are received during the first week of April will be placed into a lottery and about 65,000 petitions will be selected for review. However, if the foreign national earned an advanced degree from a U.S. institution, then they will have "two bites at the apple." Their petition will be placed in the advanced degree lottery which has 20,000 slots. (This number is in addition to the 65,000 regular H1B quota slots). If the case is selected for one of those slots, then they are good. If not, then the petition is automatically dropped to the pool of 65,000 for another chance to be selected. Whether the case is filed in the regular quota or the Master's quota, there is no way to predict the overall odds for selection. If the economy remains strong, then it is safe to say that demand will be high. Last year, there were about 3-4 petitions for each available slot.

Can I increase the odds of my petition being selected by filing more than one case for my employee? No. If you as the employer file multiple petitions for the same employee, then you will be penalized by having the petitions nullified and possibly be sanctioned from filing future H1B petitions. However, an employee can have multiple employers file a H1B petition on her behalf without penalty.

I've heard that the H1B quota number is granted when the case is approved. If this is true, should I pay for premium processing to obtain a faster result? This is a myth. The H1B quota number is granted when the case is selected and not at the time of approval. The H1B effective date remains October 1st of the year. Premium processing will not increase the odds of a case being selected or having the start date moved up any sooner than October 1st.

I have a small IT firm that places individuals on off-site locations. Am I allowed to file a H1B petition for one of my employees? The short answer is "yes." However, as the employer,  you will need to provide more basic evidence for the petition as compared to someone who is sponsored by a larger, established company or one from a different industry. I recommend that you provide copies of your federal tax filings to demonstrate that the company has the requisite income to support the employee. In addition, it is critical to provide copies of the end-user agreements that state both that there is a need for the H1B employee (provide a detailed job description and location) and that the H1B petitioner will be the actual employer of the off-site employee.

Are there alternatives to filing a H1B? Yes, however with the caveat that it may not be a good long term solution. If your H1B case is not selected or if you are not ready to file a H1B, then your employee may qualify for a TN visa, provided that they are a citizen of either Mexico or Canada and the position is found on the NAFTA list of occupations. Another possible option, if your employee is a citizen of Australia, then they might be able to qualify for the E-3 visa. These alternatives are good for the short term, but they do not provide a strong basis for your employee to pursue their permanent residency, because these are not "dual intent" visa categories. However, these visa categories will keep them on your payroll in a lawful work status.

            If you have questions about your specific H1B situation, contact my office to set up a case evaluation. Every H1B case presents unique wrinkles to the basic formula. I can assist you in determining the strengths and possible weaknesses of your situation. We can also discuss your company's short term and long term immigration strategies.

 Be on the lookout for my up-coming post on the Cap-Gap.