H-1B season is here! The H-1B classification is the most popular temporary work status for professional positions, and the time to act is now.  Companies that seek to expand their workforce with top talent want to take advantage of this immigration classification.  For many foreign nationals, not only does H-1B status provide employment opportunities, but also a potential path to a Green Card. Among other eligibility requirements, foreign-national applicants must have:

  1. A U.S. job offer, and
  2. A relevant Bachelor’s degree (or equivalent work experience).

H-1B has the following advantages:

  • Permanent Residence – When an employee holds H-1B status, the company has the option to apply for permanent residence (a green card).
  • Indefinite Work Authorization – Beginning the green card process would allow the company to continue employment authorization indefinitely.  (Otherwise, H-1B status is available for a maximum of 6 years.)

This year, the government has implemented a new procedure with far-reaching consequences described in the advantages and disadvantages below.  The government’s new requirement is for prospective H-1B employers to first complete a registration process between March 1 and March 20.  The government will then conduct a lottery at the end of March to determine which applications it will accept.  Applications will be accepted April 1 or for 90 days following a lottery win.  If approved, H-1B status will be valid starting October 1.

The odds of winning the H-1B lottery for candidates with a bachelor’s degree may be less than 50%; the odds are higher for candidates with a U.S. master’s degree.  Thus, it may take more than one attempt to eventually obtain H-1B status.

We are now preparing H-1B applications.  We have created two H-1B Program options, to give employers flexibility in their H-1B strategies and conserve company resources.  To ensure timely electronic submission registration – and to avoid a rush service fee – be sure to contact our office about your H-1B cap candidates by 01/31/2020.

~~~~~~~~~~~H-1B PROGRAM OPTIONS~~~~~~~~~~~

  1. Recommendation: Extensive H-1B Program. We recommend this option especially in this first year of the government’s new system because the risk and stakes are high for obtaining H-1B status.  As in prior years, we will analyze the case in advance and prepare the full application package to take advantage of a lottery win.
    • Advantages:
      • Early Submission of H-1B Application & Earlier Adjudication: You can be at ease because we will have prepared your full application packages for submission approximately April 1 (when the government will first accept them) or soon after winning the H-1B lottery. Your applications will be first in line for a decision from the government.
      • Minimize Premium Processing and Rush Fees: Because your applications will be filed early, you may be able to avoid the government’s hefty premium processing fee. Because case preparation will be done on a timely basis, you avoid the Rush Fee of the alternative Preliminary H-1B program.
      • Thorough Analysis: We will conduct a thorough immigration analysis and set the complete strategy for the case at the outset. We track and consider important deadlines.  We will identify eligibility issues and help you resolve them early, for the smoothest possible H-1B season.
      • Continuous Work Authorization: Students with expiring employment authorization documents (EADs) will more likely meet the submission deadline to have continuous work authorization until H-1B status starts on October 1.
      • International Travel Sooner: Candidates will know in advance when they can and cannot travel internationally. If H-1B status is approved, they can apply sooner at U.S. consulates for travel visas.
      • Government Compliance: You will have confidence that your H-1B candidates are eligible for H-1B classification. Thus, you can honestly sign the required attestation that you intend to submit an H-1B application if the candidate wins the lottery.
      • Meet Submission Deadline in Spite of Government Unpredictability: You will be protected against last-minute technical issues or an unexpected government announcement cancelling the electronic registration process for this year.  Last year, the electronic registration process was suspended because the government’s website was not ready to accommodate all the potential applicants.  If this occurs again, your decision to prepare the H-1B petition in advance will protect you from missing the government deadline.
      • Beat the Rush: Preparing the H-1B petition in advance gives you a head start over other companies who choose to delay.  You will receive your educational evaluations and required Labor Condition Applications (LCAs) earlier and more securely, thus avoiding the scramble to obtain these items after the lottery is conducted.  You will be shielded from technical issues that can arise when different agencies attempts to accommodate an influx of last-minute H-1B preparations.
    • Disadvantage: The company will not receive a refund for any legal work completed if a candidate’s registration is not selected in the H-1B lottery. However, the company will receive a credit toward an H-1B application filed for the same candidate during the next fiscal year.  Derivative family members are eligible for additional courtesy credits for subsequent H-4 applications filed during the next year’s H-1B lottery.
  1. Alternative: Our Preliminary H-1B Program is for clients who wish to reduce costs and conserve resources, while accepting the risks described above and a longer adjudication timeline. We don’t recommend the Preliminary H-1B Program for this year, because the government’s new process may experience unexpected technical or procedural challenges during its first year of implementation.  This non-traditional approach involves splitting the H-1B workflow into two parts: (1) limited analysis and planning for the H-1B registration, and the H-1B electronic registration process; (2) thorough analysis and petition preparation after the registration is selected in the H-1B lottery.
    • Advantage:
      • Alert for Students with Expiring Employment Authorization: If the candidate will obviously miss the deadline to have continuous work authorization with the Preliminary H-1B program, we will alert you to change to Extensive Program to meet the deadline.
      • Save Resources: The company will receive a refund for any legal work not yet completed, if the candidate’s registration is not selected in the H-1B lottery.
    • Disadvantages:
      • You and your candidates will face more uncertainty, because applications will be filed later in the spring or early summer. Candidates who require travel visas may experience backlogs at the U.S. consulates during the H-1B filing rush, and candidates with expiring EADs who will rely on interim work authorization may have to stop working if their H-1B petitions remain unadjudicated after the October 1 deadline.
      • Because a thorough immigration analysis won’t be completed at the outset, the company and candidates won’t know whether their H-1B petitions are strong or will face challenges. The company may face time pressure to resolve eligibility issues quickly before the 90-day filing window expires.  The law firm will not be aware of important expiration dates that impact candidates’ continuous employment authorization.  The law firm will not track candidates’ immigration expiration dates until the H-1B registration is selected and we complete a thorough immigration analysis.
      • The company must attest during registration that it will file H-1B applications for each selected registrant. If the government detects a pattern of frivolous or fraudulent company registrations, it can refer your company to law enforcement.
      • Your company will be vulnerable to last-minute technical issues or an unexpected government announcement cancelling the electronic registration process for this year. Last year, the electronic registration process was suspended because the government’s website was not ready to accommodate all the potential applicants.  If this occurs again, your candidate’s H-1B application may not be ready for the government deadline.
      • Delaying H-1B petition preparation means your cases will be prepared during the extremely busy 90-day filing window after the cap lottery. Government agencies (such as the Department of Labor, which provides the required Labor Condition Application (LCA) and FEIN verification services) and third party service providers (such as education evaluation agencies) will be very busy, and responses to requests may be delayed. You may experience technical issues that can arise when different agencies attempt to accommodate an influx of last-minute H-1B preparations.
      • You will pay slightly more for H-1B petition preparation for your selected registrants. (Clients who select the Extensive H-1B Program are exempt from a small rush fee to file H-1B applications during the shorter 90-day government filing window after the lottery is conducted.)  Your H-1B petitions may require USCIS’s premium processing service for an additional fee due to timing constraints.
      • Employees may be anxious because their applications will not be filed as early as their peers.

We are eager to help employers successfully navigate the new H-1B procedures!