Soon after the New Year celebrations, our firm's attention has been drawn to the annual H-1B filing season, which is expected to begin in March. For the next two months, we must intake, evaluate, counsel and prepare client cases for the H-1B electronic registration process, which was initiated by USCIS in 2020.
Over the past few years, USCIS has made some minor adjustments in the registration system. Still, only very preliminary information is required for online registration. To safeguard our clients' interests, our office has continued to perform a thorough evaluation of each case before registration. The following are some important issues and pitfalls that employers and employees should pay attention to:
Employer Information
It may seem something trivial, but getting correct employer information is critical. Confirm the legal name of the employer in the State Certificate of Formation. Are there any subsequent changes in the legal name or DBAs? For larger companies with multiple subsidiaries, branches, etc., find out the exact entity that will act as the H-1B sponsor. The Federal Employer ID number (FEIN) is another important piece of information, as USCIS uses the FEIN as the unique identifier for each sponsoring employer to screen out duplicate filings. The FEIN can be confirmed by examining the official correspondences issued by the Internal Revenue Service regarding the sponsoring entity.
Employee Qualifications
Generally speaking, an employee must qualify to perform the duties of a specialty occupation in order to be classified as an H-1B worker. Hence, the employee's qualifications, including education, certifications, work experience, training, etc. are essential considerations. Specifically, for the purpose of H-1B electronic registration, we must confirm whether the employee qualifies for the “master cap”, which confers 20,000 additional visa numbers. To qualify for the master cap, an applicant must have earned an advanced level degree beyond the bachelor's level, including professional degrees, conferred by an accredited U.S. institution. Further, the school must not be a private, for-profit institution. Even if the case is selected in the H-1B visa lottery, checking the wrong box means that the case will be denied eventually.
Occupation Information
Although the current USCIS registration system does not require specific occupational information, an early evaluation of the job title, duties, and requirements is also essential. Again, the case will be denied if the position being petitioned for does not meet the definition of specialty occupation, even if the case is randomly selected. The law regarding what constitutes a specialty occupation constantly changes. The agency policies and adjudication standards can also be confusing at times. For certain less defined occupations such as market research analysts, business analysts, consultants, etc., an early evaluation and assignment of occupation code would make the final application process smoother.
Employee and Dependent Status
The ultimate purpose of petitioning an employee for H-1B status is so that he/she can continue staying and working in the United States. Hence, a thorough examination of the employee status is crucial. For F-1 students who are eligible for STEM OPT, timely extension of their OPT status is a given. If extension is no longer available, we'll then evaluate whether the student qualifies for the special CAP-GAP extension rules. CAP-GAP rules allow qualified F-1 students to continue staying and/or working in the United States after expiration of their OPT status. If nothing else works, we must consider other options, such as changing to another status or departing the country temporarily. Do not forget to also review the status of the H-1B candidate's spouse and children. Each person's immigration status must be properly maintained. Sometimes the principal applicant can fall back on the spouse's legal status, such as F-1.
In sum, there are many pitfalls and issues to consider regarding the H-1B registration and application process. As practitioners, we are sometimes overwhelmed by the large number of cases and documents during the cap season. Still, an important tip is to always remember to double and triple check everything, as a careless mistake can change the life of somebody.
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