10 PITFALLS TO AVOID WHEN FILING H1B PETITIONS

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With the H1B filing window fast approaching for FY2015, here are 10 PITFALLS TO AVOID when preparing and filing your H1B petition compiled by an experienced H1B practitioner:

1) FILING AN INCOMPLETE PETITION. This is a no-brainer but one that should not be overlooked. A properly completed I-129 Petition can be the difference between an Approval or an RFE or worse, a rejection. The base I-129 form is over 35 pages long much of which pertains to other non-immigrant visa categories. Read the instructions carefully. This form requires information from both the Petitioning Organization or Company and the Prospective employee. Take care to complete all relevant fields with the most accurate information. The I-129 must also be filed with the I-129H and I-129 Data Collection Supplement and the appropriate supporting documents clearly establishing the worker’s eligibility.

2) FAIL TO INCLUDE THE CORRECT FILING FEES. The H1B Petition is one of the most costly petitions out there in terms of US immigration benefits. The fees can range from $1575.00 for certain first time filers to a whopping $2325.00 per employee depending on the size of the Petitioning company. Certain types of organizations, companies and filings are exempt from some of these fees, including those that are associated with institutions of higher learning, non-profits associated with an institution of higher learning, research organizations or government research organizations to name a few. Additionally filings that are seeking only to amend a petition or a second or subsequent filing for the same employee are also exempt from some of the fees.

3) UNTIMELY LABOR CONDITION APPLICATION. Unlike in days past, when the Labor Condition Application (LCA) was certified in minutes, today certification can take upwards of 10+ days if not more, particularly during heavy filing periods. Companies who have never filed a Labor Condition Application before must first go through a verification process with the Department of Labor which can add several additional days to the process. A properly certified Labor Condition Application must accompany the Petition at the time of filing.

4) UNDERESTIMATE THE CAP. Last year USCIS received approximately 124,000 H-1B petitions during the first week of the filing period, on April 5, 2013. This included petitions filed under the Master’s Degree cap. This far surpassed the 65,000 visa numbers under the regular H1B category and 20,000 additional visas available each fiscal year under the Master’s Cap. According to their press release, on April 7, 2013, USCIS resorted to a lottery system to select the petitions under both caps. All others were sent rejection notices. Petitioners and prospective employees should also investigate alternate visa options in the event the cap is prematurely reached.

5) INADEQUATE EMPLOYER LETTERS. A poorly written Employer Letter of Support can tank an H1B Petition. The H1B letter drafted by the employer in support of the application should contain pertinent details about the company including its date of founding, notable accomplishments or distinctions, if any, the number of employees and its gross or net annual income. It should also briefly discuss the H1B opportunity and why the Company needs a temporary H1B worker as well as the qualifications of the beneficiary. Of course this should be accompanied by strong supporting evidence of the beneficiary’s qualifications and degree.

6) FAIL TO INCLUDE A COVER LETTER. Organizing the packet begins with a well written cover letter detailing the contents of the packet. It also doesn’t hurt to summarize the beneficiary’s qualifications once again in a concise and articulate manner. Avoid spelling and grammatical errors as no one wants to read a poorly prepared letter, certainly not an officer who will be making a decision on the qualifications of your prospective employee.

7) IGNORE CURRENT ECONOMIC MARKET. While its not necessary to test the US job market when filing an H1B, its’ hard to ignore the fact that millions of qualified Americans remain out of work. If an increasing number of Requests for Evidence is any indication for H1Bs Petitions that in previous years have sailed through, one could bet USCIS is zeroing in on the current job market in making their decisions. Perhaps you should, too and consider the US job market for qualified US candidates.

8) IGNORE CURRENT TRENDS. Are H1B denials up in recent years in your industry? In years past, H1B Petitions were liberally approved. These days, it is not uncommon for a Request for Evidence (RFE) to issue or even a denial. Certain professions have triggered various results in more recent times even for beneficiaries who are similarly qualified. In one example, the same Petitioner filed an H1B Petition for a well-qualified employee in one year. Several years later, said same employer filed an H1B Petition for an employee with identical qualifications but received a denial necessitating an appeal. Careful arguments should be made backed by solid academic and employment credentials that the candidate is H1B qualified and the position also is a specialty occupation. (See below)

9) JOB NOT A SPECIALTY OCCUPATION: The H1B Visa is available only to those whose employment is considered in a specialty occupation. This being said, it is incumbent upon the filing to know whether the prospective position falls into the specialty occupation category. Many job titles, while requiring tech experience or education, are excluded from the H1B visa process including many technologist and technician positions as well as draftsmen. Petitioners should check the Occupational Outlook Handbook which is a major resource published by the Bureau of Labor Statistics which USCIS relies upon to make such determinations. Helpful information includes what workers do, where they work, and typical education and training requirements.

10) FAILURE TO REVIEW WORKER’S PRIOR IMMIGRATION HISTORY. Many workers appear to make excellent H1B candidates, but their prior immigration history including overstays can tank a well prepared application. Employees who have previously overstayed their visas may require a waiver and may not be eligible for a change of status even if in the U.S. Prospective employees not currently in the US on a valid visa, including those who are here temporarily on the Visa Waiver program cannot change their status to an H1B worker without departing the U.S. first. Do a thorough analysis of the prospective employee’s immigration history to avoid mis-allocating HR resources into an unqualified candidate at the expense of hiring a qualified one.

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