Top 3 Mistakes You Must Avoid in Your H-1B Application

& THOMPSON
JANUARY 28, 2016
Top 3 Mistakes You Must Avoid
in Your H-1B Application
COWLES & THOMPSON, PC

Presenters
Ann Massey Badmus
Attorney at Law
Angela M. Lopez
Attorney at Law

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Mistake #1
FAILING TO PROPERLY DOCUMENT AND PROVE ELIGIBILITY

H-1B Nonimmigrant Visas
A nonimmigrant (temporary) visa that
allows a non-citizen to be employed in
the United States for up to 6 years in a
“specialty occupation” for a specific
employer (“petitioner”).

1 Specialty Occupation
2 Employee Qualifications
3 Employer-Employee Relationship
4 Valid Job Offer and Company
5 H-1B Cap-Exemption

What is a Specialty Occupation?
An occupation that requires highly
skilled specialized knowledge and
A bachelor’s or higher degree (or its
equivalent) in the specific specialty as
a minimum for entry into the
occupation

Detailed Job Description
Daily duties and percentages of
time spent on duties
Similar positions in the industry or
in your business
Proof of Specialty Occupation

Organizational chart with job
descriptions of other positions
Expert opinions and reports
Professional associations
Proof of Specialty Occupation (cont.)

Proof of Specialty Occupation (cont.)
Department of Labor Online Wage Survey – www.flcdatacenter.com

Employee Qualifications
Have completed a U.S. bachelor’s or higher degree
(or its foreign equivalent) or
Have education, training, or experience in the
specialty equivalent to the completion of such
degree (3:1 rule) and
Possess full state licensure if required to practice in
the state of employment

Proof of Employee Qualifications
Diplomas and Degrees
Employment Experience Letters
Credential Evaluation or Expert Opinion
Professional License, if applicable

Employer- Employee Relationship
Employment Contract/Offer Letter
Employee Manual/Benefits Summary
Performance Review
Client Contracts/Work Orders
Pay Records/W-2/Work Schedule

Proving Valid Job Offer and Position
Federal Tax Returns
Unemployment Tax Reports
Organizational Charts
Payroll Records
Company History

http://fedgov.dnb.com/webform
Validation Instrument for Business Enterprises (VIBE) Program
VIBE allows
USCIS to
electronically
receive
petitioning
company
information from
D&B
Business activities
Financial standing, e.g. credit rating
Number of employees, both on-site and globally.
Relationships with other entities
Type of office, e.g. single office
Type of legal entity.
Company executives.
Date of establishment
Current physical address.

H-1B Cap Exempt Categories
Employers Universities/Colleges
Non-profit affiliates of universities/colleges
Government or non-profit research facilities
Employment For profit employment at universities or their non-profit
affiliated facilities
Physicians Physicians who received government-sponsored J-1
waivers of two year home residency requirement

Proving H-1B Cap-Exemption
Higher Ed Public or Non-profit
Associate degree or higher
Proof of Accreditation
Non-Profit &
Affiliated
w/Higher Ed
501(c)(3) exemption letter
Agreement with Higher Ed, e.g. Clinical Training
Supporting letter from Higher Ed
Third-Party
Employment
Agreement with Higher Ed or Non-Profit Affiliate Org
Supporting Letter from Exempt Facility
Educational or non-profit purpose

Proving H-1B Cap-Exemption (cont.)
As of March 2011, USCIS will honor previous determinations of
cap exemption if employer provides:
A copy of the previously approved cap-exempt petition
(relevant pages of the Form I-129 and pertinent supplements);
A copy of the Form I-797 approval notice (issued after June 6,
2006) for the affiliation-based cap exempt petition; or
Documentation previously submitted with a petition in support
of the claimed cap exemption.

Mistake #2
FAILING TO OBSERVE TIMELINES AND DEADLINES

H-1B Numerical Limitations - “H-1B Cap”
Quota of 65,000 new H-1B visas per fiscal
year (except Free Trade Act (FTA) nationals)
20,000 per fiscal year for persons who hold
US Master’s degrees or higher
Applies to first-time H-1B or previously cap-
exempt H-1B employees

February
Prepare
petition
April 1
Apply for
H-1B
April 7
Lottery
cutoff
May 1
Acceptance
or Rejection
Notices
July
Decision
Notices
2017 FY H-1B Cap Timeline

Prepare Now
Consult with an immigration attorney.
Gather necessary documents and information.
Prepare and conduct final review of H-1B petition.
File H-1B petition on April 1.

Cap-Gap Timelines for F-1 Students
Prevents gap between F-1 expiration and H-1B start date, in most cases.
If student has active OPT, can work until September 30, 2016 and remain in U.S.
until H-1B decision is made. If H-1B approved, student can continue or resume
work using H-1B visa. If H-1B denied, 60 day grace period begins on date of denial.
If student has expired OPT and H-1B is filed before expiration of 60 day grace
period, student can remain in U.S. until H-1B decision. No work authorization
during this period. If H-1B is approved, student can begin work. If H-1B denied,
student must leave the U.S.

H-1B Renewal Timeline
Employer must submit renewal petition before current H-1B visa expires.
Employee can continue to work up to 240 days after H-1B visa expires as long as
renewal petition filed timely.
Premium processing available
Recommended: Apply for six months before visa expires or request premium
processing if H-1B approval is needed for driver’s license renewal, travel plans, or
other reasons.

H-1B Amended Petitions
8 CFR 214.2 –
amended petition
required for any
material changes.
You must file amended
petition before
changes occur.
Change in number of work hours, i.e.
full-time to part-time
Change in duties from one specialty to
another
Change in place of employment
requiring a new LCA per 22 CFR 655.734
Cowles & Thompson, PC

Mistake #3
FAILING TO PREPARE FOR INTERNATIONAL TRAVEL AND
GOVERNMENT AUDITS

International Travel
Visa Processing at U.S. Embassy
(www.usembassy.gov)
Administrative Processing Delays
Petition Returns

USCIS Audits
Random Selection
Unannounced Employer Site Visit
Email Demands for Documents

Potential Consequences of Negative Findings
Denial of Pending Petition
Notice of Intent to Revoke Previously Approved Petition
Revocation of Previously Approved Petition
Criminal Penalties
Civil Fines

Preparing for a USCIS Site Visit
Step 1
Review the H-
1B petition
Step 2
Prepare
compliance
evidence file
for inspector
Step 3
Identify
company
representatives
who will meet
with auditors
Step 4
Establish site
visit
procedures for
reception,
clients, and H-
1B employee
Employers
Take these steps
immediately after
the approval of your
H-1B petition to
prepare for a surprise
site visit from the
USCIS.

Legal Notice
The information provided in this presentation is
general in nature and should not be relied upon for
specific situations. Because each case is different, you
should consult with an experienced immigration
attorney for your specific situation.

Questions? Comments? Assistance?
Cowles & Thompson
901 Main Street, Suite 3900
Dallas, Texas 75202
214-672-2000 Telephone
214-672-2020 Facsimile
immigration@cowlesthompson.com
www.cowlesthompson.com
www.ctimmigrationlaw.com

Top 3 Mistakes You Must Avoid in Your H-1B Application

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