Thank You Custom
Thank you for your interest in the H-1B Petition Process.
The H-1B is the most frequent employer-sponsored U.S. employment authorization and we are very successful in preparing and obtaining H1B nonimmigrant approvals for employers and subsequent immigrant visas and green cards for their employees. Under the Trump administration, the level of difficulty is four-fold. For example, USCIS adjudicators denied 24% of H-1B petitions for “initial” employment and 12% of H-1B petitions for “continuing” employment. Additionally, USCIS issued a Request for Evidence (RFE) in 60% of cases compared to 20% historically.
No, worries. We prepare hundreds of such petitions each year. We offer excellent service at a competitive price. Of course, the price isn’t everything. Timeliness, responsiveness, professionalism, and expertise are all part of providing employer quality guidance and representation. We are known for our availability, responsiveness, timeliness, professionalism, and considerable expertise.
The H-1B petition process consists of 5 steps:
- H-1B Preregistration
- LCA preparation, posting, and submission
- H-1B petition and company letter preparation
- H-1B submission with supporting documentation
- H-1B approval
Start-ups, small U.S. businesses, and consulting companies require additional documentation above and beyond the standard H-1B petition. Additionally, positions offered to foreign national employees require attestations regarding, job duties, worksite, wages, 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 Change of Employer
A person in the US previously on H-1B can change employers and begin work for the new employer immediately upon USCIS receipt of the new employer’s H-1B change of employer petition. INA §214 does not require that the alien currently is in H-1B status if he or she is in a “period of stay authorized by the Attorney General.” An H-1B temporary worker may “port” under §105 of AC21 (INA § 214(n)) from one employer to another even if the H-1B worker is out of status.
H-1B Specialty Occupation
To qualify as an H-1B temporary professional in a specialty occupation, there are four basic requirements that H-1B employment requires:
- A baccalaureate or higher degree or equivalent is normally the minimum requirement for entry into the particular position;
- The degree requirement is common in the industry in parallel positions among similar organizations or alternatively that the particular position is so complex or unique that a degree is required;
- The employer normally requires a degree or equivalent; or
- Nature of specific duties so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a degree.
H-1B Employee Qualifications
To qualify to accept 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.
There is also the requirement that the employer pays the prevailing wage. This is obtained by filing a labor condition application.
The preliminary step in the process is to obtain a certified labor condition application from the Department of Labor before we can file the H-1B petition. There is one wrinkle in this first step. The Department of Labor (DOL) instituted an online labor condition application system (LCA) which verifies your employer FEIN. Unfortunately, they have an incomplete database of employers and FEINs. If the DOL is unable to identify the company FEIN they will not process the LCA. In such a case, we must provide the FEIN information in advance. The FEIN information must be in the form of a communication from the IRS listing the company name, current address, and FEIN. Following submission of the FEIN information and DOL confirmation, we are then permitted to file the LCA. This step often takes 10 – 15 business days.
More on the Prevailing Wage
There is also the requirement that the employer pays the prevailing wage. This is initially obtained by filing a labor condition application.
We assist the employer to identify an appropriate occupation and wage using the 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. In the unlikely event, should the DOL may disagree and audit the H-1B, your company may have to back wage the foreign national. Level 1 wage is for entry-level positions requiring 0 to 2 years of experience and work under supervision. Level 2 wage is for a person with 2 to 5 years of experience who work independently. Level 3 is a leads position and level 4 is the supervisory position.
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 online: http://www.flcdatacenter.com/. 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-iCERT-requested-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 iCERT system (this safe harbor wage takes 2-3 months).
Employer’s Wage Responsibility and H-1B Related Fees & 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 require three things regarding the wage:
- 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;
- The employer may not require the employee to pay any H-1B related fees that reduce the wage below the required wage; and
- 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.
- Our fee for H-1B Preregistration is $500 for up to 5 employees.
- Our usual attorney fee for preparing for filing the H-1B petition and supporting documentation is $2,500, including FedEx charges.
- USCIS filing fees are about $1,710 ($460 I-129, $500 Fraud, $750 ACWIA) for companies with 25 or fewer employees and $2,460 ($460 I-129, $500 Fraud, $1500 ACWIA) for companies with more than 25 employees.
- Other costs include evaluations of foreign degrees as equivalent to a U.S. degree.
- Current USCIS H-1B petition processing times are about 5 months (subject to change). The USCIS will premium process the petition with a decision in 15 business days for an additional fee of $1,440.
The payment of our attorney retainer is our authorization to begin.
Additional representations outside the preparation for the filing of the H-1B are not included in the fee quoted including administrative hearings, requests for evidence, a notice of intent to deny, appeals, or any other additional filings or work. We will request company checks for USCIS filing fees when we provide you the petition documentation for signature.
The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty for the accuracy of information.
For more information, I recommend that you call our main office at 408-998-1159 or email us at [email protected] and schedule a consultation with our founding attorney Edward Litwin. The fee is $200 for each 30-minute increment for an in-person consultation. That will afford Edward the opportunity to review your case and provide a fair appraisal of what course you should take.