The H-1B visa is valid for three years, with an optional three-year extension, and provides the employee with the opportunity to apply for a Green Card if sponsored by the employer. Accordingly, because the H-1B visa can last for 6 years (and even longer under some circumstances), the H-1B visa is one of the most popular ways for foreign professionals obtain a work visa, and ultimately, a Green Card in the United States.
As H-1B applications require a third-party academic credential evaluation of foreign degrees and the processing of a Labor Condition Application with the Department of Labor before an applicant is eligible to file an H-1B application with the U.S. Citizenship and Immigration Services (USCIS), H-1B applications can take 2-4 months to prepare. Therefore, a prudent applicant will begin his or her application preparation in December or January because it can take several months to get documentation prepared and signed by the employer, obtain important documents from third parties, and have the application prepared by an attorney.
Applicants apply for the visa on April 1, and the soonest they could work is the following October. Many applicants survive this waiting time by working on Optional Practical Training (OPT) through their F-1 student visa so that they can gain experience at the employer and remain in legal status in the US during the six months while their case is being processed.
In order to be as competitive as possible, applications should be completed by mid-March so that they can be sent via courier and arrive at USCIS on the morning of April 1. We recommend starting H-1B case preparation in December/January so that all bases are covered during this short window of time. Keep in mind, as applicants can only apply for an H-1B once a year, law firms will be processing numerous applications at once. To get the most attention from your firm, and to put your best application forward, contact an attorney early on so your application can be one of the first ones the firm prepares.
One of the most important factors that distinguishes the H-1B visa from other visas is the fact that applications exceed the number of visas available. For the past several years, USCIS has instituted a lottery system to narrow down the number of applications to 85,000 (65,000 for Bachelor’s Degrees or higher and an additional 20,000 for Master’s Degrees). Last season, by only April 6, 2018, USCIS reached the congressionally-mandated 65,000 visa H-1B cap for fiscal year 2019. USCIS began accepting applications on Monday, April 2, and reached its cap within just four days. It rejected and returned the filing fees for all unselected cap-subject petitions that were not duplicate filings.
Will the H-1B Lottery Change in 2019?
In an attempt to change the lottery system for H-1B applications, The U.S. Department of Homeland Security (DHS) proposed a rule that would require all H-1B petitioners to pre-register online for the H-1B lottery prior to submitting their H-1B filings. According to the proposed rule, only those H-1B petitions that have been selected in the lottery could then be submitted for the adjudication by USCIS. The rule is currently under review at the Office of Management and Budget (OBM), which is the first step toward implementing such changes.
Other proposed changes would benefit applicants with Master’s Degrees by adding them to the initial round of 65,000 Bachelor’s Degree applicant visa spots lottery. Then, if there are any Master’s Degree applications left over after the initial lottery round, the remaining Master’s Degree applications will be added to the lottery for the remaining 20,000 Master’s Degree cap.
USCIS aims for the new system to go into effect for FY2020, which is set to begin on April 1, 2019. However, it is not clear yet whether USCIS would be able to complete the regulatory approval process in time. Therefore, we recommend preparing applications in light of the current lottery rules until further notice.
Tips for Preparing a Successful H-1B Application
In order to cut through the competition, we provide the following application recommendations:
Organize Your Application so It’s Easy for the Visa Officer to Review
Imagine you are a visa officer pouring through tens of thousands of seemingly identical 150-page applications by people all vying to work in the US. Would you be more inclined to approve a sloppy and incomplete application, or a polished, well-organized application that persuasively advocates for the applicant’s visa approval?
There are many nuances and requirements that a good application must have, including a detailed cover letter, employer letter, biographical and employment documents, Table of Contents, and sophisticated aesthetic presentation. This is not the time for trial and 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 from the time you receive a rejection (i.e. October 2020). 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.
2. Make Your Application as Comprehensive as Possible
Your 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. In recent years, Requests for Evidence have been on the rise, so providing as much evidence at the beginning will reduce the attorney’s fees and number of items you have to provide to USCIS later in response to an RFE.
Remember, this is the time to be a perfectionist! Start collecting documents now so that you have as much documentation as possible to support the fact that you are qualified for the position. Now is the time to dig up those transcripts and diplomas, to update your resume, and to revise your Job Description.
3. 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, because 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.
Are you interested in applying for the H-1B visa? Schedule a call with us to determine whether you are eligible for this popular visa.
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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 matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.
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