H-1B Cap Issues? Here are 3 mistakes to avoid during season

HIGHLIGHTS
  • Sending insufficient documentation
  • Failing to understand eligibility requirements
  • Starting the application process too late
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In 2016, out of the 236,000 H-1B Person in Specialty Occupation petitions submitted, only 36 percent were selected in the capped government lottery for processing – leaving 148,000 high-skilled foreign nationals without the legal ability to work in the United States. Circumstances haven’t changed for the upcoming H-1B cap season. Only 85,000 new H-1B visas are available, making it incredibility important that petitioners don’t falter during application prep.

Here are the top three H-1B visa application mistakes to avoid.

Mistake No. 1: Sending insufficient documentation

Experienced H-1B visa attorneys typically send a wide variety of supporting documents with the application packet to ensure U.S. Citizenship and Immigration Services (USCIS) has ample proof of the candidate’s visa eligibility. This helps to reduce the likelihood of receiving a Request for Evidence (RFE) notice, an official letter informing petitioners that USCIS wasn’t given enough information to make a proper visa eligibility determination.

In 2014, nearly 30 percent of H-1B visa petitioners received an RFE or notice of intent to deny letter, according to the Ombudsman’s 2015 Annual Report. Former Envoy-affiliated attorney Karen Gillespie believes that due to privacy concerns, some employers prefer to withhold documentation during the initial application process.

“Sometimes, people prefer to wait for the RFE,” Gillespie says. “They believe if they get an RFE, they’ll address it at that time. But they’re making the case take much longer by risking an RFE. Be flexible and understand that your attorneys are asking for documents because they genuinely want your case to be approved.”

Mistake No. 2: Failing to understand eligibility requirements
First, to be H-1B-eligible, the foreign candidate must have a bachelor’s degree or foreign equivalent. Second, the employer must having a qualifying open position. But Gillespie says there’s often a disconnect between what the employer considers a bachelor’s degree-worthy position and industry standards.

“A good example would be an administrative assistant,” Gillespie says. “Perhaps you want your candidate to have a bachelor’s degree. But there’s no administrative assistant course you take in college. That’s the link USCIS is looking for. Even though your company will never hire someone without a bachelor’s degree, that does not make it an H-1B position.”

The employer must also pay the foreign candidate the industry-standard wage for the position, which can be higher than expected. For example, in 2014, median salary for H-1B beneficiaries was $75,000.

“It’s really about evaluating if that’s the right role for the person,” she says. “You don’t want to tailor your job description to avoid paying the prevailing wage. That violates the purpose of having a required minimum wage by the Department of Labor.”

Mistake No. 3: Starting the application process too late
H-1B visa applications can be filed on April 1 – but the process is complex, and starting too late can have consequences (read our blog for H-1B procrastinators).

“The big catch is not understanding you have to file the LCA [labor condition application] before you file the H-1B,” Gillespie says. “The certified LCA has to be submitted with the H-1B and you can’t premium process those with the Department of Labor — it takes seven to 10 days. Filing a case without an LCA certified will get your case rejected at the door.”

File your LCA no later than March 20 so you’ll have ample time to receive the certification before the start of cap season.

Bonus tip: H-1B cap season advice
Applying for an H-1B visa may seem daunting, but the work pays off in the competitive edge gained by hiring a high-skilled employee. Gillespie has a few additional words of advice for this upcoming cap season and beyond:

“Don’t lose hope. You have the same chance as anyone else,” she says. “The numbers are intimidating but the visas are up for grabs – if someone is going to get them, it might as well be you. Write to your congressman or senator and tell them to increase the number of H-1B visas available. If you have a representative or senator proposing restrictive changes, let your voice be heard.”