H-1B cap season is upon us. To lend H-1B sponsors a helping hand, we’ve enlisted the assistance of Global Immigration Associates, our affiliated law firm. In this Q&A series, they’ll answer questions to help you prepare a strong work visa petition.
GIA: We recommend to begin preparation right now. Many employers open cases in late January to early February. By starting early, you are likely to get more attention from your attorney, and more time to correct and identify any possible issues and source the proper documentation.
GIA: There is no way to “guarantee” a spot in the H-1B cap lottery. The only way an H-1B applicant’s chance of approval can improve is if he or she possesses a U.S. master’s degree or better, because there are an additional 20,000 H-1B visas available for these employees. Every other type of petition has exactly the same chances of being chosen in the lottery.
GIA: The position itself doesn’t need to require a master’s degree, but the academic field in which the master’s degree was earned must be related to the sponsored H-1B position.
GIA: It is best to file the LCA in February or early March. However, it’s risky to file in late March — if there’s an unanticipated delay, the LCA won’t be certified before the filing deadline in early April. It can take up to 15 days for the LCA to be processed during the busy H-1B cap season.
GIA: H-1B employees must be paid at least the minimum wages listed by the DOL or accepted wage survey. The required wage is based on the location, job type, and required education and experience. The offered wage may be equal to the required minimum wage but cannot be less than the required minimum wage.
Failure to pay the listed wages on the LCA and H-1B petition can result in fines and government sanctions, as well as open up the company to a civil suit filed by the H-1B holder.
If a company believes the DOL-listed wages are not aligned with its market, the company can subscribe to a third-party wage survey. If the DOL accepts the validity of that survey, it may certify wages that are less than those listed on the DOL database. However, the DOL must certify the offered wage for an H-1B visa, and the employer must continue to pay the H-1B holder at least the listed wage for the entire validity period of the H-1B, unless it is amended or withdrawn.
GIA: This varies based on the experience, education and nationality of the employee. It also depends on the structure of the employer’s company and any relation to qualifying foreign entities. Examples of possible alternatives include:
Note: Content in this publication is not intended as legal advice, nor should it be relied upon as such. For additional information on the issues discussed, consult a Envoy-affiliated attorney or another qualified professional.