5 Secrets to Preparing a Successful H-1B Application

by Jennifer A. Grady, Esq.

H-1B visaOne of the most notorious ways for foreign professionals to obtain a visa and even a Green Card in the US is through an H-1B visa, which requires sponsorship by the professional’s employer, and can be granted for three years with one additional three year renewal. The H-1B allows U.S. employers to temporarily employ foreign workers in specialty occupations, and requires a bachelor’s degree or its equivalent.

However, with great benefits comes great competition. The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Due to the United States’ stability in an increasingly unstable world, in 2015, 233,000 foreigners applied for the H-1B, a significant increase over 2014 (172,500 applications), and nearly double the applicants from two years ago Lottery Balls(124,000). Because the average applicant with a bachelor’s degree has only a 27% chance of making the quota, it is essential to not only meet the requirements and have an outstanding application, but to first make it into the H-1B lottery.

Below, I share my five secrets to filing a successful H-1B application.

  1. Ensure Your Application is One of the First to Arrive at USCIS

calendarThis year, only one week after the filing period opened, the United State Citizenship and Immigration Services (USCIS) announced on April 7, 2015 that it received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2016. USCIS also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the “Masters Cap.”

On April 13, USCIS used a computer-generated random selection process, or “lottery,” to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS rejected and returned all unselected petitions with their filing fees, unless the petition was found to be a duplicate filing.

Due to overwhelming demand, in addition to meeting the strict requirements outlined below, applicants must also cross the additional hurdle of having their application in the pile that makes it through the lottery. It is absolutely imperative that your application arrive on April 1 so that your application is not rejected before it has the chance to be reviewed. Don’t take the chance of submitting your application a few days or weeks after the filing period opens, as all your work may be disregarded if your application is rejected because it did not make the lottery.

In order for your application to be one of the first to arrive, you need to start preparing your application in advance.

  1. Start Preparing Your Application Several Months in Advance

attorney clientTo ensure that your application arrives on time, it must be ready for mailing no later than one week before April 1 (this year, by March 28, 2016). A strong H-1B application requires attention to detail, participation by both the employer and the employee, and reliance on third parties that is outside the control of the employee. For example, an applicant who attended university outside of the US will have to have a third party evaluate his or her transcripts and diploma, and prepare an evaluation demonstrating that the degree is equivalent to a US bachelor’s or master’s degree. Because it can take several weeks to obtain original transcripts from a foreign university and then have the equivalency application reviewed, this is the first thing the applicant should begin to prepare.

In addition, your employer must submit a Labor Condition Application (LCA) to the US Department of Labor and obtain an approval before you can apply. This step can take several weeks, and even longer as the April 1 deadline approaches and more and more applicants rush to have their for LCA application approved.

The ideal time to start preparing your application is in December or January. If you wait until February or March, your application may be rushed and you may have to pay expedited fees to USCIS, the degree review company, and/or your attorney. Considering the stiff competition, it’s best not to risk preparing a sub-par application due to procrastination. If you are even considering filing an application, talk to your employer, family, and attorney several months in advance to get the application started.

  1. Organize Your Application to It’s Easy for the Visa Officer to Review

disorganized.jpgImagine you are a visa officer pouring through thousands of similar 80+ page applications by people vying to come to the US. Would you be more inclined to approve a sloppy and incomplete application, or a polished, well-organized application that advocates for the applicant’s admission?

This is where a qualified and experienced attorney comes in. There are many nuances and requirements that a good application must have, including tabs, a table of contents, proper organization and order, and markings for each type of application. This is not the time for trial an error, as one mistake can mean that your application is denied and you have to wait until next year to apply, effectively meaning that you would not be able to start working for at least another year and a half from the time you receive a rejection. In this case when your life, career, and the lives of your immediate family members may be on the line, “do it right the first time” with the expertise and guidance of an experienced immigration attorney.

  1. Make Your Application as Comprehensive as Possible

typingYour application must include many items, such as completed forms, LCA approval, transcripts and records, corporate documents for your employer, and evidence that you meet the requirements for the H-1B. Include as much relevant evidence as possible, without distracting the officer by providing unnecessary information.

This is the time to be a perfectionist. Keep collecting documents until you have everything you can to support the fact that you are qualified for the position. However, do not wait around for that last document if it will make you miss the deadline, unless it is required for the application.

  1. Take the Requests for Evidence (RFE) Seriously

If an application makes it past the lottery stage and is reviewed by a visa officer, it is common that the applicant will receive a Requests for More Evidence (RFE). This means that before a visa officer can make a determination on your case, he or she will request specific evidence to convince him or her to approve your application.

Do not fret if you receive an RFE: look at it as an opportunity to continue proving your case. Provide as much evidence as you can to show the officer that you can meet his or her concerns. Also, submit your RFE responses as soon as possible and in advance of the deadline, becauseApproved.jpg the sooner the officer receives your submission, the sooner the officer can make a decision on your case. If all goes well, your case may be approved within a few weeks of the RFE submission. At that point, it’s time to celebrate and focus on preparing for your new life in the United States.

Do You Qualify for the H-1B Visa?

There are five key requirements that must be met in order for a professional to apply for an H-1B visa, which include the following:

  1. You must have an employer-employee relationship with the Signing a contractpetitioning U.S. employer;
  2. Your job must qualify as a specialty occupation by meeting one of the following criteria:
    1. A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
    2. The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
    3. The employer normally requires a degree or its equivalent for the position; or
    4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
  3. Your job must be in a specialty occupation related to your field of study;
  4. You must be paid at least the actual or prevailing wage for your occupation, whichever is higher; and
  5. An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

If you think you may qualify for an H-1B visa, now is the time to start preparing your application.

To find out if you qualify for the H-1B visa, or to obtain assistance with filing your application, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (323) 450-9010; or fill out a Contact Request Form.

World webWe have offices in Los Angeles, San Francisco, and San Diego, California, and work remotely with clients from around the globe. We have successfully worked with clients from China, India, Canada, Colombia, Mexico, Saudi Arabia, Italy, Cuba, Korea, Spain, Iran, the UK, Philippines, Malaysia, Japan, Jamaica, and Saudi Arabia, to name a few.

*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular case, as each case has its own set of circumstances and must be evaluated individually by and attorney and USCIS.

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About gradyfirm

The Grady Firm attorneys specialize in helping businesses grow and succeed through employment, business, immigration, and intellectual property law advising for clients in California. In addition, we help foreign entrepreneurs establish a US presence and obtain the appropriate visas for their owners and employees. WE PROVIDE THE FOLLOWING BUSINESS SOLUTIONS: BUSINESS ADVISING: Business formation, contract drafting, coaching/advising, succession planning, lease review, and contract negotiation. EMPLOYMENT LAW: We teach employers how to become compliant with California employment law, draft Employee Handbooks, and providing sexual harassment training. We also help resolve disputes between employers and employees regarding wage and hour, discrimination, and harassment issues. IMMIGRATION: We help build business work forces and reunite families by preparing visa, Green Card, and citizenship applications based on family relations, employment, and investment. INTELLECTUAL PROPERTY: trademarks, copyright The Grady Firm has offices in Beverly Hills and San Diego, California; and serves clients remotely from across the globe. Our attorneys are licensed to practice immigration law in all 50 states. Learn more about us at www.gradyfirm.com.

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