Soon after the New Year celebrations, once again, our firm's attention will be drawn to the annual H-1B filing season, which is expected to begin in March. For the next few months, we must intake, evaluate, counsel and prepare client cases for the H-1B electronic registration process, which was initiated by USCIS in 2020.
To safeguard our clients' interests, our office has continued to perform a thorough evaluation of each case before registration. The upcoming lottery is for the FY 2026 H-1B program with an employment start date of 10/01/2025. As the new administration has expressed a strong intent to make changes to immigration policies, we must be particularly vigilant in preparing for the upcoming H-1B lottery to minimize errors and improve the chances of selection. Employers and employees should pay attention to the following items.
Employer Information
Getting correct employer information is critical, as incorrect information will disqualify the H-1B registration. Confirm the legal name of the employer in the State Certificate of Formation, including any subsequent changes in the legal name or D/B/As. For larger companies with multiple subsidiaries, branches, etc., find out the exact legal 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. must be carefully considered. 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.
Information About the H-1B Position
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 after the case is selected in the lottery. 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's Immigration Status
A foreign worker has two options to obtain H-1B status after their petition has been approved. If they are legally present in the U.S., they may apply for a Change of Status directly in their H-1B petition. Upon approval, their status will be changed automatically. Hence, a thorough examination of the applicant's immigration status is critical. For F-1 students who are eligible for STEM OPT, they should file a timely extension of their OPT status. 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 an applicant has failed to maintain their lawful status in the U.S., they should consult an experienced immigration attorney without delay. In some cases, they would have to depart the U.S. and apply for a valid H-1B visa stamp before they may re-enter the U.S. 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.
Conclusion
In sum, there are factual and legal issues to consider regarding the H-1B registration and application process. As mentioned, the new administration may make changes to the H-1B visa program including the electronic registration system, the subsequent application process, the substantive requirements such as the wages, job locations, specialty occupation, etc. Hence, it is important to stay informed of any updates and changes in policies.
No comments:
Post a Comment