The H-1B season is off and running! With a strong U.S. employment report, this may well be another lottery year. I am recommending that all petitions be ready for submission by March 31 to ensure they make the cut of petitions considered.
The stakes are high with H-1B petitions and I want to ensure your application is in A+ condition before submitting it. Here are five mistakes employers commonly make and how to avoid them to ensure you have a solid petition.
1. Starting Too Late
Several preliminary steps are required to ensure everything is in order for a strong petition. For example:
- Any company filing an H-1B needs to have a Labor Condition Application on file with the Department of Labor.
- Companies also need to demonstrate that the job is a “specialty occupation” requiring bachelor’s degree and prove that the foreign national has the degree.
- If the foreign national is changing status, the United States Citizenship and Immigrations Services (USCIS) office will want evidence that the national has been maintaining the existing status.
I’ll talk more about those preliminary steps below, but you should know that all of them take time and that many steps require exchanges with the Department of Labor or USCIS. These exchanges take time too – and the offices get jammed as the April 1 filing date approaches.
Beginning the process in January increases the chances that you will be able to put all the documentation in order, respond to any requests for further documentation and still have your petition ready by March 31.
2. Weak Company Profile
The Department of Labor and USCIS look for evidence that the company exists and is financially sound.
As I mentioned above, companies sponsoring H-1B petitions need to have a Labor Condition Application (LCA) on file with the Department of Labor. The LCA speaks to the company’s agreement to pay the prevailing wage for the position offered.
What specifically are the Department of Labor and USCIS looking for?
- Confirmation that the company exists from a Dunn & Bradstreet listing. The government contracts with Dunn & Bradstreet (D&B) and uses them as the source to confirm the company’s history (length of time in business), size and well-being. A current D&B listing is crucial to your application’s success.
- Office space. As a traditional organization, the Department of Labor has not yet begun to put credence in companies that work only virtually. This may seem silly, but I have had to tell clients to get a lease to strengthen their LCA.
- At least one recently filed federal tax return. Proof of the company’s financial condition and ability to support payroll are key areas that USCIS will scrutinize.
Companies that often need extra help with the LCA requirements include:
- Small companies or start-ups.
- Newly formed companies that have not yet filed a tax return.
- Companies that work virtually.
The Labor Condition Application has to be certified before you file an H-1B petition.
3. Failure to Prove the Job Is a “Specialty Occupation”
To obtain one of the 65,000 H-1B visas for “professional or specialty occupations,” a company has to present evidence that the position in question requires a bachelor’s degree. The Master’s cap permits an additional 20,000 H-1B petitions to be filed for foreign nationals with Master’s or higher degrees from U.S. institutions.
There are four areas that have been singled out as obviously requiring this level of education – Science, Technology, Engineering and Math – commonly known as STEM. If your industry and the job in question fall clearly into a STEM category, proving need for a bachelor’s degree is easy.
For non-STEM positions, it can be more challenging.
I have had mental health professionals, physical therapists, and acupuncturists as clients. Unusual occupations may mean that more documentation regarding the skills and education is needed.
Information Technology (IT) professionals sometimes get questioned. Sales and business related positions can be hard to justify as well and have been highly scrutinized in the past.
4. Lack of Proof of Ability to Sponsor the Foreign National for Three Full Years
As the standard initial H-1B visa lasts three years, the Department of Labor and USCIS want to see evidence that the company can pay the employee’s salary and has sufficient work for the employee during that period.
Company financials and its D&B listing support the case for the company’s solvency and ability to pay most of the time.
This can be a tough issue for IT consultants and others who work by contract. IT consultants often work on-site at the client company for months-long engagements. USCIS wants to see contracts that span the three-year time period, but consultancies don’t often have contracts going that long or that far in advance.
In this case, USCIS will sometimes grant an H-1B for a single year.
The applicant can petition again the following year for a three-year period. But the single year grant leaves more uncertainty on the table, as well as necessitating three filings to achieve the six years that foreign nationals can have an H-1B visa instead of two. It’s expensive and time consuming.
5. Lack of Compliance
Any company sponsoring an H-1B petition could be subject to Department of Labor and/or USCIS audits.
Auditors can knock on your office door unannounced. They will want to see the foreign national at their desk doing what they are supposed to be doing as required by their specialty occupation.
They can also check to see that you are actually paying their salary, creating the required compliance documents and posting them on-site.
Posting the compliance documents can create some awkward situations. The Labor Condition Application must be posted at the foreign national’s place of work. If the employee is an IT consultant, this can mean posting the employee’s pay in view of the client who could then compute the company’s profit margin.
Despite the awkwardness, companies should post the notices promptly. Not doing so can open the company to liability, which can range from Department of Labor or USCIS fines to back wages to criminal charges if the filing is found to be fraudulent, or a knowing or willful violation.
If you plan to file an H-1B petition, please contact me soon, and definitely by February 12. I want to put together a rock-star petition for you and make the process as smooth as possible.
The author, Jacqueline Lentini McCullough, is an immigration attorney based in Illinois with extensive experience in H-1B visas. Ms. Lentini can be reached at lentinivisas.com, +1.630.262.1435, or jacki@lentinivisas.com.
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