Important H-1B Update: US employers must file H1B petitions for those selected in the H1B lottery before June 30.
Litwin & Smith has a long history of success guiding businesses through the filing process. Please contact us today for a free 10-minute H-1B consultation.

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Important H-1B Update: US employers must file H1B petitions for those selected in the H1B lottery before June 30. Litwin & Smith has a long history of success guiding businesses through the filing process. Please contact us today for a free 10-minute consultation.

FY2023 H-1B CAP NON-IMMIGRANT WORKER PETITION

The H-1B allows employers to temporarily employ foreign workers in the U.S. on a nonimmigrant basis in specialty occupations. For candidates who have not been previously approved for H-1B employment, their H-1B petition requires employer pre-registration. Below is the information.

The H-1B petition has increased in level of difficulty and the documentation required to establish the position offered or extended qualifies as a specialty occupation. We have an impeccable history of success with H-1B petition filings. Below is information about the process and our fees and costs.

The H-1B is the most often employer sponsored U.S. employment authorization and we are very successful in preparing and obtaining H-1B nonimmigrant approvals for employers and subsequent immigrant visas and green cards for their employees. We prepare hundreds of such petitions each year. We offer excellent service at a competitive price. We are known for our availability, responsiveness, timeliness, and professionalism, as well as our considerable expertise.

H-1B Cap

Litwin & Smith is registering H-1B employers and beneficiaries for the 2022 H-1B Cap Season. Our Flat Fee for H-1B registration is $500 per employer for up to 4 employees per H-1B employer submission.

If the employer is sponsoring a person who has not previously been sponsored for H-1B. The employer should know the H-1B category is subject to an annual numerical limit of 65,000 visas. Employers seeking to file FY2023 H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must first electronically register and pay an associated $10 fee for each electronic registration they submit to USCIS.

USCIS Registration Requirement, provides a new process by which employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that will require basic information about their company and each requested worker.

USCIS Federal Register Implementation, provides that the initial registration period will start on March 1, 2022 and is expected to close March 20, 2022. USCIS will then run a random selection process on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

The H-1B cap was reached last year the first week of H-1B filing. We are preparing H-1B Cap Registration filings in January or early February for the March 1, 2022 H-1B Registration period. H-1B cap registrations selected in the anticipated lottery would file H-1B petitions within 90 days of selection in the lottery. H-1B cap petition filing generally have not had premium processing available at the time of filing the last 2 years. Should there be premium processing available we will keep you informed.

H-1B Change of Employer

The good news for an employer sponsoring a person with I-94 H-1B validity the H-1B sponsored employee may begin work with a new employer upon USCIS receipt of the new employer’s H-1B petition. A person previously sponsored for H1B, but not within prior H-1B I-94 validity requires the new employer’s H-1B petition to be approved before the employee may begin employment in H-1B status.

H-1B Extension

The good news for an employer petitioning a person with I-94 H-1B validity is the H-1B petitioned employee may continue to work for the employer upon USCIS receipt of the timely filed employer’s H-1B extension petition for 240 days past the expiration of the current I-94 validity. The bad news is current processing times are more than 240 days. Some good news is a H-1B continuation of previously approved employment petition may be filed with premium processing for a decision in 15 days at this time.

Four Steps

The H-1B petition process is in four steps:

  • Step 1: LCA preparation, posting, and DOL submission
  • Step 2: Draft H-1B petition and company letter
  • Step 3: H-1B submission with supporting documentation
  • Step 4: H-1B adjudication and visa application

Additional Documentation

Start-ups, small U.S. businesses, and consulting companies require additional documentation. Additionally, positions offered to foreign nationals employees require attestations regarding, job duties, work-site, wage, and technologies, source code, and technical data made available to the employee. But, no worries. We will guide you. So, that your petition will be successful.

H-1B Specialty Occupation

To qualify as an H-1 temporary professional in a specialty occupation, there are four basic requirements that the H-1B employment require:

  1. A baccalaureate or higher degree or equivalent is normally the minimum requirement for entry into the particular position;
  2. Degree requirement is common in industry in parallel positions among similar; organizations or alternatively that the particular position is so complex or unique that a degree is required;
  3. Employer normally requires a degree or equivalent; or
  4. Nature of specific duties so specialized and complex that knowledge required to perform the duties is usually associated with attainment of degree.

H-1B Employee Qualifications

To qualify for a job offer in a specialty occupation the professional must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The Prevailing Wage

There is also the requirement that the employer pay the prevailing wage, which is initially obtained by filing a labor condition application.

We assist the employer to identify an appropriate occupation and wage using information provided by the employer. We will use our best efforts to assist you. However, we cannot guarantee that the occupation or wage level is one the DOL will accept should the DOL audit the H-1B wage or USCIS will accept for the H-1B petition.

H-1B petitions require the employer to file a labor condition application to be certified by the Department of Labor that the employer will pay the H-1B employee at least the prevailing wage appropriate to the occupation for the duties stated. We use the DOL OES Wage Survey from the DOL on-line flcdatacenter. The OES wage is routinely used for H-1B petitions. However, it is not the best or the only wage source available.

One alternative is an independent employer wage survey. An independent employer wage survey for the area is usually about 10% lower and may cost a few hundred dollars to a few thousand dollars. The wage survey often takes about two weeks to obtain. However, it is not the best or the only wage source available.

For the H-1B prevailing wage, only the DOL Foreign Labor Application Gateway (FLAG) System requested Form 9141 prevailing wage is a safe harbor wage. Safe harbor is the term used to refer to the DOL’s regulation that states that “In all situations where the employer obtains the prevailing wage determination (PWD) from the National Processing Center (NPC), the Department will deem that PWD as correct as to the amount of the wage.” Therefore, the employer is “safe” from investigations questioning the validity of the prevailing wage. The prevailing safe harbor wage may be obtained from the DOL by request using the DOL FLAG system (this safe harbor wage takes 2-3 months).

Employer’s Wage Responsibility and H-1B Related Fees with Costs

An employer may consider H-1B costs when negotiating the employee’s wage. But, may not pay an H-1B employee less than the wage paid to any other employee doing the same duties at the same level.

DOL regulations has three requirements regarding the wage:

  1. The wage paid an H-1B worker must be at least the prevailing wage appropriate to the occupation of the position for the duties performed and may not be less than the wage paid to any other employee in the same position;
  2. The employer may not require the employee to pay any H-1B related fees that reduce the wage below the required wage; and
  3. The employer may not require the employee to pay the fraud fee of $500 or the ACWIA training fee of $1,500 for companies with 26 or more employees or $750 for companies with 25 employees or less. When a person is outside of the 60-day grace period following cessation of prior H-1B employment we do not recommend filing with premium processing. Still, premium processing is currently available for an additional USCIS filing fee of $2500.

Fees and Costs

Our usual attorney fee for preparing for filing the H-1B petition and supporting documentation is $2,500. While we use our best efforts to avoid a Request for Evidence by your completion of a Specialized Knowledge Table with supporting documentation. Should there be an RFE our fee for assistance in the response is $1,500. USCIS filing fees are about $1710 for companies with less than 25 employees and $2,460 for companies with 25 or more employees. Other costs include FedEx charges of about $100 and evaluations of foreign degrees as equivalent to a U.S. degree. Current USCIS H-1B petition processing times is approximately 6 months. Premium Processing for 15-business day adjudication is also available.

About Litwin & Smith, A Law Corporation

We at Litwin & Smith represent employers in most of the various industries represented around the Bay Area, throughout California, across the U.S., and around the globe. We are a prestigious immigration law firm representing large and small business clients. Our firm is a nationally recognized premiere immigration firm. We have been very successful in preparing and obtaining H-1B nonimmigrant visas for employers and subsequent immigrant visas and green cards for their employees on H-1B. We prepare hundreds of such petitions each year.

If we can be of any assistance to you or should you have any questions, please email us or call 650-588-7100.

Please be advised that our office has recently moved to a new location, it is at 6379 Clark Avenue, Suite 260, Dublin, CA 94568.

We look forward to being of assistance.

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DUBLIN OFFICE

6379 Clark Avenue, Suite 260
Dublin, CA 94568

SANTA CLARA OFFICE

5201 Great America Parkway,
Suite 320, Santa Clara, CA 95054

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