Covering All Bases in the H1-B Visa Process
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Covering All Bases in the H1-B Visa Process

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July 13, 2015, 3:14 pm
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Starting April 1, 2015, the United States Citizenship and Immigration Services (USCIS) will begin accepting H1-B visa petitions, used by U.S. employers to hire skilled professionals from abroad. If lessons are to be learned from the last two years, employ
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Starting April 1, 2015, the United States Citizenship and Immigration Services (USCIS) will begin accepting H1-B visa petitions, used by U.S. employers to hire skilled professionals from abroad. If lessons are to be learned from the last two years, employers who are serious about hiring a foreign national should start planning their strategy and preparing their paperwork NOW.

What many employers do not realize is that two potential time-consuming obstacles exist that may make the process longer – measures that have to be taken before H-1B applications are accepted on April 1st. Since there has been no progress on comprehensive immigration reform, advocates are expecting the same scenario to play out as last year:

– It is anticipated that all 20,000 visa Master’s cap will be met and surpassed in the first week, resulting in a random lottery selection of cases to adjudicate.

– It is anticipated that all 65,000 visa non-Master’s cap will be met and surpassed in the first week, resulting in a random lottery selection of cases to adjudicate.

– Last year, 172,500 applications were filed in the first week for the combined 85,000 spots and BOTH caps were met immediately.

– 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.

In order to sponsor a candidate for an H1-B visa, employers first are required to provide what is called a Labor Condition Application (LCA), and these applications require the verification of the company’s Federal Employer Identification Number (FEIN).

If a company has never sponsored an H1-B visa candidate, or if it has reorganized or changed its name, it is likely to face a delay in the verification of its FEIN. The prospective employer should give itself a cushion of 4-6 weeks to get the FEIN and LCA approved. If an employer takes too long to submit its LCA, it is possible that it will not be processed in time to be able to submit the H-1B on time, since the H-1B petition requires an approved LCA, signed in original by the company representative.

Luckily the fate of H1-B 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 that can be used in place of an H1-B, if necessary. They are sometimes of a shorter duration than the H1-B, and may carry more restrictions, but can offer a stop-gap solution so that the foreign candidates are not lost forever.

For more information, please see my video detailing all the alternative visas that may be available.

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

Author: Steve Maggi
SMA Law Firm has over a decade of experience assisting foreign nationals with visas based on investment, including EB-5 petitions, as well as assisting business owners and project developers in structuring their projects so as to be compliant with all EB-5 requirements. This experience includes projects eligible to bring in investors both through regional centers or through direct investment, as well as other investment visa categories based upon investment, including E-1, E-2 and L-1 visas. Please feel free to contact us with any questions or inquiries concerning EB-5 visas or any other U.S. immigration matters. 80 Maiden Lane, Suite 2205 New York, NY 10038 (212) 402-6885
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