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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Tuesday, March 22, 2022

Do you know what is in your H-1B petition?

Many employees rely on their employers to prepare and file their H-1B petitions.  This is especially true for first time filers who are very likely to be an F-1 student who just graduated from a degree program.  They may have found a job with a large company, which typically hires a larger law firm to prepare and submit the H-1B petition.  Does that mean the H-1B employee can just relax and assume that everything will be okay?  Not really.

H-1B is an Employer Petition

 An employer is offering a position to a foreign national in the capacity of an H-1B professional.  Hence, the filing is essentially an employer-based petition.  Without approval of a U.S. employer, a foreign worker cannot submit an H-1B petition.  An H-1B petition is filed on the USCIS Form I-129 with a supplement and a data collection form.  The employer is the petitioner and must sign the application documents, including the certified Labor Condition Application. 

What information is provided in an H-1B petition? 

Although the H-1B petition is filed by the employer, an employee must also take actions to ensure that correct information is entered into the petition. An H-1B petition has information about the employer such as its legal name, address, phone number, federal ID number, etc.  It also has information about the H-1B specialty occupation.  Finally, an H-1B petition also contains pertinent information about the employee (the beneficiary) including his/her identification information, immigration status, and also educational background and other background information.   All information entered into an H-1B petition is important and must be correct.  

Do you know what is in your H-1B petition?

Many H-1B applicants do not know what information is entered in the H-1B petition.  This is unwise as the information entered may affect their immigration status.   First, if incorrect information is entered in the H-1B petition, it may result in a denial.  Many cases are denied based on minor technical reasons because of careless typographical errors.  Given the large number of H-1B applicants, it is so difficult to grab an H-1B visa number nowadays; it would be extremely unfortunate if a case is denied based on an error that could have been avoided.  Furthermore, a denied decision could also have lasting effects on the employee's immigration status.

Hence, it is critical that the beneficiary worker must double-check his/her information entered into the H-1B petition.  Some employers may refuse to provide information about the H-1B petition.  Although the law does not require the employer to provide a complete copy of the H-1B petition to the employee before filing, an employee may certainly request to review the portions of the petition that contains his/her information - biographical information such as the legal name, date and place of birth, address, I-94 information, etc., and also qualification information such the universities attended, the exact degrees awarded and employment history. 

Further, the regulation also requires that a copy of the certified Labor Condition Application (a prerequisite of the H-1B petition) must be provided to the employee before the intended start date of employment.  

Some law offices do not directly communicate with the employees. Try to make a point to contact them.  You may have to do it through the employer. Some communication is better than none.  Even if your case is handled by a large, reputable firm, do not assume that everything would be alright.  Lawyers and paralegals are also humans, and humans are prone to make mistakes, especially when they are handling a large volume of cases.  Also, larger firms typically cannot give attention to individual applicants; it is up to you to contact them, ask questions and request to review your information. 

Finally, H-1B applicants should also be actively involved in preparing a response to any formal Request for Evidence (RFE).  An RFE is the second and probably the final opportunity for you to present your case and provide relevant supporting documents to USCIS.  Do not completely delegate this responsibility to your employer or attorney. 

Ultimately, the person who cares most about the success of the H-1B petition is yourself.  Take charge of your case.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

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