top 3 mistakes you must avoid in your h-1b application

& THOMPSONJANUARY 28, 2016

Top 3 Mistakes You Must Avoid in Your H-1B Application

COWLES & THOMPSON, PC

Presenters

Ann Massey BadmusAttorney at Law

Angela M. LopezAttorney at Law



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Mistake #1FAILING TO PROPERLY DOCUMENT AND PROVE ELIGIBILITY


H-1B Nonimmigrant Visas

A nonimmigrant (temporary) visa that allows a non-citizen to be employed in the United States for up to 6 years in a “specialty occupation” for a specific employer (“petitioner”).


1 Specialty Occupation

2 Employee Qualifications

3 Employer-Employee Relationship

4 Valid Job Offer and Company

5 H-1B Cap-Exemption

PROV

ING


What is a Specialty Occupation?

An occupation that requires highly skilled specialized knowledge and

A bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation


Detailed Job Description

Daily duties and percentages of time spent on duties

Similar positions in the industry or in your business

Proof of Specialty Occupation


Organizational chart with job descriptions of other positions

Expert opinions and reports

Professional associations

Proof of Specialty Occupation (cont.)


Proof of Specialty Occupation (cont.)Department of Labor Online Wage Survey – www.flcdatacenter.com


Employee Qualifications

Have completed a U.S. bachelor’s or higher degree (or its foreign equivalent) or

Have education, training, or experience in the specialty equivalent to the completion of such degree (3:1 rule) and

Possess full state licensure if required to practice in the state of employment


Proof of Employee Qualifications

Diplomas and Degrees

Employment Experience Letters

Credential Evaluation or Expert Opinion

Professional License, if applicable


Employer- Employee Relationship

Employment Contract/Offer Letter

Employee Manual/Benefits Summary

Performance Review

Client Contracts/Work Orders

Pay Records/W-2/Work Schedule


Proving Valid Job Offer and Position

Federal Tax Returns

Unemployment Tax Reports

Organizational Charts

Payroll Records

Company History


http://fedgov.dnb.com/webform

Validation Instrument for Business Enterprises (VIBE) Program

VIBE allows USCIS to electronically receive petitioning company information from D&B

Business activitiesFinancial standing, e.g. credit ratingNumber of employees, both on-site and globally.Relationships with other entitiesType of office, e.g. single officeType of legal entity.Company executives.Date of establishmentCurrent physical address.

H-1B Cap Exempt Categories

Employers Universities/CollegesNon-profit affiliates of universities/collegesGovernment or non-profit research facilities

Employment For profit employment at universities or their non-profit affiliated facilities

Physicians Physicians who received government-sponsored J-1 waivers of two year home residency requirement


Proving H-1B Cap-ExemptionHigher Ed Public or Non-profit

Associate degree or higher

Proof of Accreditation

Non-Profit & Affiliated w/Higher Ed

501(c)(3) exemption letter

Agreement with Higher Ed, e.g. Clinical Training

Supporting letter from Higher Ed

Third-Party Employment

Agreement with Higher Ed or Non-Profit Affiliate Org

Supporting Letter from Exempt Facility

Educational or non-profit purpose


Proving H-1B Cap-Exemption (cont.)

As of March 2011, USCIS will honor previous determinations of cap exemption if employer provides:

A copy of the previously approved cap-exempt petition (relevant pages of the Form I-129 and pertinent supplements);

A copy of the Form I-797 approval notice (issued after June 6, 2006) for the affiliation-based cap exempt petition; or

Documentation previously submitted with a petition in support of the claimed cap exemption.


Mistake #2FAILING TO OBSERVE TIMELINES AND DEADLINES

H-1B Numerical Limitations - “H-1B Cap”

Quota of 65,000 new H-1B visas per fiscal year (except Free Trade Act (FTA) nationals)

20,000 per fiscal year for persons who hold US Master’s degrees or higher

Applies to first-time H-1B or previously cap-exempt H-1B employees

February Prepare petition

April 1 Apply for

H-1B

April 7 Lottery cutoff

May 1 Acceptance or Rejection

Notices

July Decision Notices

2017 FY H-1B Cap Timeline


Prepare Now

Consult with an immigration attorney.

Gather necessary documents and information.

Prepare and conduct final review of H-1B petition.

File H-1B petition on April 1.


Cap-Gap Timelines for F-1 StudentsPrevents gap between F-1 expiration and H-1B start date, in most cases.

If student has active OPT, can work until September 30, 2016 and remain in U.S. until H-1B decision is made. If H-1B approved, student can continue or resume work using H-1B visa. If H-1B denied, 60 day grace period begins on date of denial.

If student has expired OPT and H-1B is filed before expiration of 60 day grace period, student can remain in U.S. until H-1B decision. No work authorization during this period. If H-1B is approved, student can begin work. If H-1B denied, student must leave the U.S.


H-1B Renewal TimelineEmployer must submit renewal petition before current H-1B visa expires.

Employee can continue to work up to 240 days after H-1B visa expires as long as renewal petition filed timely.

Premium processing available

Recommended: Apply for six months before visa expires or request premium processing if H-1B approval is needed for driver’s license renewal, travel plans, or other reasons.

H-1B Amended Petit ions8 CFR 214.2 – amended petition required for any material changes. You must file amended petition before changes occur.

Change in number of work hours, i.e. full-time to part-time

Change in duties from one specialty to another

Change in place of employment requiring a new LCA per 22 CFR 655.734

Cowles & Thompson, PC


Mistake #3FAILING TO PREPARE FOR INTERNATIONAL TRAVEL AND GOVERNMENT AUDITS


International Travel

Visa Processing at U.S. Embassy (www.usembassy.gov)

Administrative Processing Delays

Petition Returns


USCIS Audits

Random Selection

Unannounced Employer Site Visit

Email Demands for Documents


Potential Consequences of Negative Findings

Denial of Pending Petition

Notice of Intent to Revoke Previously Approved Petition

Revocation of Previously Approved Petition

Criminal Penalties

Civil Fines


Preparing for a USCIS Site Visit

Step 1

Review the H-1B petition

Step 2

Prepare compliance evidence file for inspector

Step 3

Identify company representatives who will meet with auditors

Step 4

Establish site visit procedures for reception, clients, and H-1B employee

Employers Take these steps immediately after the approval of your H-1B petition to prepare for a surprise site visit from the USCIS.


Legal Notice

The information provided in this presentation is general in nature and should not be relied upon for specific situations. Because each case is different, you should consult with an experienced immigration attorney for your specific situation.


Questions? Comments? Assistance?

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