A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Friday, January 6, 2017

Filing H-1B For The First Time, Step by Step

By Paul Szeto LLC (updated 3/7/2023)

Did you just hire this awesome employee who just makes you smile?  The only thing is that she is a foreign worker that needs sponsorship for a “work permit”.  Or are you an international student who just graduated from college looking for your first job in America?  In either case, the H-1B visa program could be your best friend. The following are the steps for the first time filers:  

1) First, there must be a valid job offer. Only a U.S. employer can file an H-1B petition for a foreign worker. Hence, there must be a proper match between an employer's hiring needs and a jobseeker's qualifications.

2) Second, confirm whether the position qualifies as an H-1B specialty occupation under Section 214(i)(l) of the Immigration Act.  To qualify for the H-1B visa, a job opening must require knowledge of a subject area that is so complex that a bachelor's degree is usually required to enter the profession. Some examples include software programming, electrical engineering, accounting, etc.  

3)  Third, retain the services of a qualified immigration attorney.  Some may argue that this should be the first step.  Although there is no requirement that one must hire the services of an attorney to submit an H-1B petition, the laws and regulations have become so complex that it is very difficult for an employer to do it correctly the first time.  Unfortunately, the rules are very unforgiving, and one innocent mistake could result in a denial.  The process has become even more complicated even since USCIS implemented an online registration system for the H-1B visa lottery in 2020

4) Fourth, register for the H-1B annual cap visa lottery.  This step actually involves multiple steps.  As mentioned, USCIS revamped the process for conducting the H-1B lottery in 2020.  Employer must now create a registrant account on the USCIS system before they can enter candidates in the H-1B visa lottery.  The process is a bit complicated.  Please review our other blog articles about this process.   (Note: Most of the first time filers are subject to the visa cap unless they are exempt.  Double check with your employer and attorney to see if the position is cap-exempt.)

5) Fifth, have all documents ready.  For the lucky applicants who were selected in the lottery, the next step is to collect all required documents to prepare for filing of a complete H-1B petition. Foreign workers must produce their immigration related documents such as passport, visa, I-94, and status change documents, as well as their qualifications documents such as academic degrees and transcripts. Employers must also produce documents to prove their corporate identity and also financial ability to pay the H-1B salary. Documents regarding the specialty occupation must also be made ready.

6) Sixth, confirm all legal requirements are met.  A complete legal review by an experienced immigration attorney should be performed at this point. Make sure the working conditions, salaries, and other terms of employment are in compliance of the H-1B program requirements.  For example, a U.S. employer must pay the prevailing or market wage to the H-1B employee and to make sure that the H-1B employer will not adversely affect the working conditions of U.S. workers. Take any remedial steps if necessary to fix any potential issues.

7) Seventh, perform prefilling steps and submit the Labor Condition Application.  After a thorough legal review, the employer must also perform a few pre-filing steps. These include posting of a legal notice regarding the H-1B position at the job sites, creating a public inspection file with the required documents, and also filing a Labor Condition Application (LCA). These are critical sub-steps. Any errors made here could jeopardize the whole case.

8) Eighth, prepare the complete H-1B petition.  Finally, after all pre-filing steps were completed and all required documents and information obtained, now is the time to prepare the final H-1B petition for submission.  Make sure the petition is well organized and meets all legal requirements.  

9) Ninth, check, double check, and triple check everything before sending out the petition.  Check the mailing address, the filing fee checks, the signatures of the form, the spelling of names, the dates, etc.  You don't want to have your petition rejected or denied because of a minor typographical error.

10) Tenth, receive the official filing receipt.  Some employers forget about this crucial step.  Make sure that a filing receipt is received within 2-3 weeks (or within a few days if premium processing service was used).  Follow up with USCIS immediately if a filing receipt is not received. 

11) Eleventh, respond to any formal Requests for Evidence.  Well-prepared and reviewed cases usually do not result in a formal RFE.  However, do not be alarmed if you get one. Do your best to answer any questions that USCIS may have. Sometimes these RFEs can be cumbersome and repetitive. Still, work with your attorney to respond to them properly.  

12) Twelfth, approved!  If the H-1B petition filed on your behalf was approved by the USCIS, there are two ways to begin H-1B employment on or after October 1st.  First, if you are in America and your request for change of status to H-1B has been approved, your status will be changed automatically to H-1B as of October 1st.  You may begin working for the H-1B employer.  If your change of status is not approved, or if you are physically outside the United States, then you must apply for an H-1B visa at an American Embassy or Consulate before you may enter the U.S. to begin H-1B employment. 

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