H-1B Cap Season: Attorney Q&A

November 21, 2016 Patty Johnson-Vazquez

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.

When should the application preparation process begin in order to file by April 1, 2017?

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.

If you file for premium processing of the H-1B cap, are you guaranteed a spot in the lottery?

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.

Does the company’s position requirement need to include a master’s degree for the employee to be eligible for the lottery of 20,000 additional visas?

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.

What is the ideal date to apply for the Labor Condition Application (LCA)?

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.

If the company offers a wage that’s comparable to wages for similar positions at the company, but lower than the minimum wage requirement, is it necessary to increase the employee wage?

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.

What visas are available if the individual isn’t selected for H-1B processing?

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:

  • TN NAFTA (North American Free Trade Agreement) Professionals
  • E-1 Treaty Traders
  • E-2 Treaty Investor
  • E-3 Certain Specialty Occupation Professionals from Australia
  • L-1B Intracompany Transferee for Employees With Specialized Knowledge
  • H-1B1 Free Trade Agreement Professional from Chile or Singapore
  • F-1 Student Visa with Optional Practical Training or Curricular Practical Training

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.

The post H-1B Cap Season: Attorney Q&A appeared first on Envoy.

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