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

Did you just hire this awesome employee that 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 job seeker'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 put simply, to qualify for H-1B, 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, make sure the working conditions, salaries, and other terms of employment are in compliance of the H-1B program requirements.  For instance, 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.

4)  Fourth, retain the services of a qualified H-1B 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.  

5) Fifth, have all documents ready.  Foreign workers must produce their immigration related documents such as passport, visa and status change notices, as well as their qualifications documents such as academic degrees and transcripts.  Employers must also produce documents to prove their corporate identify and also financial ability to pay the H-1B salary. 

6)  Sixth, perform the pre-filing requirements.   Even before the H-1B petition can be filed, there are some prerequisite steps that the parties must perform such as posting a Notice of Filing, creation of a public inspection, filing of a Labor Condition Application, etc.   

Note, USCIS has implemented a registration system since 2020.  One must first register in the system to enter the H-1B visa lottery

7) Seventh, prepare and submit the H-1B petition as early as possible.  Every fiscal year, the first date that employers may submit the H-1B cap cases is April 1.  Cap cases are those cases that are subject to the H-1B visa cap. Most of the first time filers are subject to the visa cap unless they are exempt.

8) Eighth, check and double 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.  

9) Ninth, relax and pray that your case will get selected in the visa lottery (which is usually conducted when the number of H-1B petitions received exceed the visa cap).  

10) Tenth, respond to any formal Requests for Evidence.  If you get to this step, it means that your case was selected in the visa lottery.  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.  

11) Eleventh, approved!  If the H-1B petition filed on your behalf was approved by the USCIS, there are two ways to beging 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, then 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 of the United States, then you must apply for an H-1B visa at an American Consulate before you can enter the U.S. to begin H-1B employment. 

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