The USCIS will begin accepting cap-subject H-1B petitions on April 1, 2015.  If the past few years is any indication, the 65,000 regular and 20,000 US Master caps won’t last long and will be subject to a random lottery.

There are so many traps that a novice H-1B filer needs to be aware of, just to be sure the H-1B petition makes into the lottery.  The USCIS is very unforgiving of seemingly minor errors and will reject a petition at the mail room stage before it even gets to be included in a lottery, let alone reach an adjudicating officer.  Once the petition has been accepted under the cap, the next step requires proving that the position is a Specialty Occupation and that the beneficiary qualifies for the position.  Again, there are many traps for the unwary.

Finally, behind the scenes, the employer is required to maintain a Public Information File (PIF).  The USCIS charges a $500 anti-fraud fee for all initial H-1B petitions.  A portion of these funds go towards inspectors who visit H-1B sites to ensure that employers are in fact abiding by the myriad of H-1B regulations including:  (1)  verifying that the beneficiary is indeed performing the duties of the offered position, (2) confirming the wage being paid to the beneficiary is the wage stated in the petition and LCA and is the greater of the actual or prevailing wage, and (3) ensuring the maintenance of the PIF file.

My suggestions?

1.  Hire an immigration attorney with H-1B experience.

2.  Start the process as early as possible, preferable before March 1, 2015.

3.  Gather all of the documentation requested.

4.  Ask lots of questions to ensure that, as an employer or beneficiary, you are doing things the right way.

It is too bad that qualified, talented foreign nationals need to first win a “lottery” before they can be considered to work in positions for which US companies need them.  The frequently propagated myth that  such beneficiaries take American jobs is unrealistic considering that employers must pay legal and filing fees, be subject to additional scrutiny and pay foreign nationals the often inflated “prevailing-wages” for these positions.

Please visit our firm’’s websites at www.immigrantconnect.com and www.americaninvestorvisa.com.


Author: Bradley Maged

I'm Brad Maged, an immigration lawyer in Boston, Massachusetts. I help people who want to live and work in the United States and companies that wish to employ them. This blog provides opinion and information on developments in immigration law. Thanks for reading!

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