The FY 2024 H-1B lottery season has been one of the most complicated application periods of the last decade, and this shows no sign of changing. In a recent development, nearly 70 OPT visa holders have sued the federal government, claiming their H-1B applications were unjustly denied.
The class-action lawsuit, Sharma et al. v. United States Department of Homeland Security, comes in the wake of a wide-reaching investigation by the Department of Homeland Security (DHS) and US Citizenship and Immigration Services (USCIS) into potential fraud in the H-1B registration process. The investigation identified multiple companies that appeared to be engaging in purposeful deception to register their H-1B candidates multiple times, increasing the likelihood that they were selected in the lottery.
The plaintiffs in Sharma et al. were all participants in the Optional Practical Training (OPT) program. This program permits international students to live and work in the US for up to 12 months after graduating while they seek longer-term visas. They were also selected in the FY 2024 H-1B lottery after being registered by one or more of four IT staffing companies accused of fraud by the DHS and USCIS. The plaintiffs allege that USCIS unjustly denied their legitimate H-1B applications based on the unfounded assumption that anyone associated with these companies was also automatically implicated in the fraud.
The lawsuit was filed in August 2023, so there is a long way to go before the issue is resolved. However, it demonstrates the importance of following the law to the letter when registering and applying for employment visas. Apparently minor violations or mistakes can have life-changing consequences for candidates and lead to serious legal penalties for employers. We’ve broken down how OPT recipients can apply for H-1B visas correctly and the steps sponsors can take to ensure their registrations and applications are eligible for consideration.
How to Apply for an H-1B Visa for an OPT Beneficiary
While OPT visa holders are not given special consideration when applying for H-1B visas, they have some benefits over other foreign national candidates. Specifically, OPT beneficiaries in specialized fields are highly likely to meet the eligibility criteria, which reduces the risk of denials. However, the application process must still be followed, or even the most employable candidate could still be denied. The general process is as follows:
- Confirm a genuine offer of employment: The sponsor must intend to employ the candidate if their application is approved.
- Submit appropriate documentation: Upon making an offer of employment, the sponsor must file a Labor Condition Application to verify that the role qualifies for the visa.
- Register for the H-1B lottery: The lottery registration period is limited to the first two weeks of March, and only registered candidates may be chosen to apply.
- Submit a comprehensive H-1B application upon selection: Sponsors of selected candidates are responsible for submitting Form I-129 with appropriate supporting documentation and filing fees within 90 days of selection.
- Request a cap-gap extension if necessary: OPT recipients whose visas expire before the start of the next fiscal year may be eligible to apply for a cap-gap extension to remain in the US until the H-1B authorization begins.
Three Tips for Avoiding Visa Application Fraud
USCIS will pay closer attention to every H-1B registration and application in the wake of its investigation. Sponsors preparing for next year should keep the following three tips in mind to avoid unnecessary requests for evidence and denials:
- Only make genuine offers of employment. This is the first and most important step. It’s also where the companies accused of fraud failed. The companies accused of fraud did not intend to hire all applicants they sponsored, instead planning to let the chosen applicants transfer to their employer of choice. You should only register a candidate you fully intend to hire.
- Ensure all submitted documents are genuine, complete, and accurate. A common form of visa fraud is submitting forged or altered documentation. Always confirm that the documents submitted are authentic, or you could face legal penalties and visa sanctions.
- Abide by the terms, conditions, and itinerary included in the application. The potential for fraud doesn’t end when an employment visa application is approved. Follow the terms of your employment offer and application closely and notify USCIS if something changes to avoid accusations of fraud.
Visa fraud is entirely avoidable. The most effective way to remain in compliance with USCIS regulations is to work with an experienced employment visa lawyer like the experts at Litwin & Smith. We will help you verify that your candidate, role, and documentation meet the eligibility criteria, then submit the documentation on your behalf to ensure it’s complete and accurate. Schedule your consultation today to learn how we can assist you with next year’s H-1B applications.