The cork is barely out of the new year’s champagne when I begin working on the H-1B petition process for clients. Here are the five best ways to approach your H-1B process to give you the greatest chance of success:
1. Start in January.
The process leading to an H-1B visa involves more steps than most people realize, especially if this is your first time applying. If your company is small or mid-sized and you will be doing much of this work yourself, you may be surprised at the time needed to gather documentation and to complete the pre-steps to filing an H-1B visa petition. If your company has not filed for an H-1B visa in the past, you will need to make sure that your company has registered its business existence with the Department of Labor (DOL) and that you have a Labor Condition Application (LCA) in place. These are pre-requisites of the H-1B visa process and I will discuss them further below. These steps take much back and forth with the DOL and they get backed up, especially as the filing deadline approaches. Starting in January increases your chances of having your application be among those considered.
2. Make sure your company is registered.
You will need to provide the DOL with two or three documents issued by a state or federal government office with the company's federal employer identification number (EIN). These can be documentation from the IRS noting the EIN assignment, documentation from an employer's financial institution showing an employer's EIN, or a state issued document or license with the EIN. Registering your company also necessitates having a Dun & Bradstreet (D&B) account. The DOL has a contract with D&B to check company existence and looking for your D&B listing is the first step the DOL will take to register your company.
3. Time your Labor Condition Application (LCA) so you get it back in time.
You must have an LCA on file before you can apply for an H-1B visa. Per the Simeio case decision last year, you will want to list as many relevant company locations as possible on your LCA to reduce the chances of having to file a new petition later if the employee changes offices. Last year 233,000 petitions were considered for 85,000 H-1B visas. All of them required pre-existing LCAs. I recommend filing your LCA in late February or early March so that you are competing with fewer other applications to be processed. As the H-1B visa deadline nears, the number of LCAs increases and can reach such heights that the electronic filing system freezes. You want to steer clear of that and avoid any delay. After you file your LCA with the DOL, they have seven days to certify your application. For certification, they will check that you are playing the prevailing wage for the position - so you should check too.
4. File your H-1B petition with the United States Citizen and Immigration Services (USCIS) on March 31, 2016.
March 31st is the first day you can file so that USCIS receives the petition on April 1st. As in recent years, there will be a lottery to pick the H-1B visa petitions that will be considered and the lottery is computer generated. With demand so high, who really knows how the lottery works? There are different schools of thought on this. I feel like you have a better shot of being chosen for consideration if you get your petition in on the first day. Other attorneys recognize that employers have the whole first week (five days) of April to file, and are concerned of delays by courier service delivering on the very first day of the filing period. I file my clients' petitions on March 31st whenever possible.
5. Be patient.
Last year USCIS received four times as many petitions as the number of visas they could award. It can take a long time for them to go through the cases. You may not get a receipt to know your petition was chosen for review until late May or early June. There are other ways to know if a petition has been chosen. A student can check to see if the SEVIS student record is updated. An employer can also see if USCIS cashed the check they submitted with the visa petition. USCIS will only cash it if they have accepted the petition for consideration.
One bonus strategy
Don't file for premium processing unless you absolutely need the H-1B processed faster. In my mind, it is a red flag to ask for premium processing unless you have a valid reason. To understand why, look at the request from the examiners' point of view. The examiners at USCIS get files piled high on their desk this time of year. The poor officer has just been given a tremendous workload and now you are asking for your file to be processed even more quickly. The examiner could issue a request for further evidence (RFE) just to get the file off their desk for a while. The normal processing time is a 15-day turnaround. This time of year it can take a month just for a receipt notice. Be patient. Follow these strategies and you will greatly increase the chances of being included in the H-1B lottery and receiving a visa.
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