The H-1B Visa Process

By Steve Maggi, Esq.

{4:42 minutes to read} Starting April 1, 2016, the United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B visa petitions, used by U.S. employers to hire skilled professionals from other countries. If lessons are to be learned from the past few years, employers who are serious about hiring a foreign national should start planning their strategy and preparing their paperwork immediately.

Since there has been no progress on comprehensive immigration reform, advocates are expecting the same scenario to play out as last year:

— There will be a cap of 85,000 H-1B visas, including the 20,000 Cap for U.S. Master’s degree-holders;

— There will be over 65,000 applications filed in the first week;

— There will be a completely random lottery to determine which cases get adjudicated; and 

— All applications which do not get selected in the lottery will be returned, envelope unopened, and the candidates (foreign national beneficiaries on whose behalf the petitions are filed) will either have to apply under another visa category or wait one more year to apply.

Assuming H-1B is the only option, which is the case when candidates do not have work experience, many employers do not realize that there are 2 potentially time-consuming obstacles in their way—measures that have to be taken before H-1B applications are accepted on April 1st.

In order to sponsor a candidate for an H-1B visa, employers are required to provide what is called a Labor Condition Application (LCA), which itself requires the verification of the company’s Federal Employer Identification Number (FEIN). If a company has never sponsored an H-1B visa candidate, or if it has reorganized or changed its name, it is likely to face a delay in the verification of its FEIN.

In order for the candidate to have a viable chance of getting his or her petition ready to file on April 1, the prospective employer should give itself a cushion of 4-6 weeks to get the FEIN and LCA approved. Since the H-1B petition requires an original, approved LCA signed by the company representative, an employer who takes too long to submit its LCA may not have it processed in time to submit the H-1B petition by the April 1 deadline.

Simply put, if your company’s strategy is to wait until March to get started and hope that the federal government processes everything quickly in order to get the H-1B in on time, then it is likely that you will be out of luck. Just ask the thousands of H-1B sponsors who did not get their LCA approvals back in time last year.

Some employers attempted to “attach” the approved LCA later on, but they were not valid and the petitions were nullified. Add this to the approximately 148,000 timely-filed petitions that were not selected in the random lottery, and the need for early planning and preparation in order to optimize the chance of success becomes critical.

H-1B Alternatives

Luckily the fate of H-1B petitioners and their prospective employers does not rest entirely on the outcome of the lottery. A good immigration attorney will conduct a parallel evaluation for alternative visa options—visas that can be used in place of an H-1B, if necessary. They are sometimes of a shorter duration than the H-1B and may carry more restrictions, but can offer a stop-gap solution so that the foreign candidates are not lost forever. In many cases, they offer advantages to the H-1B such as having no filing deadlines and no visa caps. 

Below is a list of links to previously published articles and videos with information on other options:

H-1B Cap Solutions

How to Hold Onto my H-1B Candidate (Video)

What are the alternatives to the H-1B visa (Video)

Stop-Gap Measures for Returned H-1B Petitions

H-1B Porting: A Year-Round Solution for U.S. Employers

Immigration USA – Sponsoring the H-1B Visa (Video)

Immigration USA – Can you sponsor someone for an H-1B when on OPT? (Video)

How U.S. Employers Can Fill H-1B Lottery-Caused Employment Gaps by Hiring Canadian Or Mexican Nationals Under the “TN Visa”

The E-3 Visa For Australian Nationals: Looking Down Under may solve problems created by H-1B’s many shortcomings

U.S. Employers – Crossing Fingers is Not a Sound Strategy: H1B Quotas Met in One Week Signal That It Is Time to Implement Plan B

H-1B Visa Alternatives for U.S. Employers

Consider yourself forewarned: If you are a U.S. company interested in hiring a foreign national for a professional position, the time to act is NOW.