Monthly Archives: January 2016

Applying for an H-1B Visa Before Graduation

H-1B petitions must be submitted to the USCIS on April 1st. In the very likely event that the number of applications exceeds the 65,000 (plus 20,000 U.S. master’s cap) quota, the USCIS will draw from all application received from April 1st through the first 5 business days.

Many graduates will have completed the coursework towards their bachelor’s or post-graduate degree before April 1st, but will not have received their diploma because the graduation ceremony is not until June. The question is: Can these individuals still qualify for an H-1B? The answer is yes.

U.S. employers who intend to file an H-1B petition for a foreign worker on April 1st may still do so even if the worker has not graduated or received their diploma, so long as he/she has completed all of the coursework towards the degree. In these cases, the foreign worker should contact the school and ask for an official transcript as well as a letter from the school confirming that all coursework has been satisfactorily completed and that he/she is eligible for a bachelor’s/graduate degree.

While this may not be the ideal situation, at least the USCIS will have sufficient evidence that demonstrates that the beneficiary possesses the requisite education to qualify for an H-1B visa. At the very least, the USCIS could issue a request for evidence asking for further proof of meeting the education criteria – at which point the beneficiary will hopefully have an official transcript or the diploma.

Conclusion: So long as the coursework towards a bachelor’s or master’s degree has been completed by April 1st, an H-1B petition should meet the education criteria during USCIS adjudication.  Contact the immigration law firm of Maximilian Law Inc. if you have questions about the H-1B visa.

How Early Should You Start Preparing an H-1B Visa Application?

Every April 1st, the USCIS begin accepting petitions from U.S. employers who are looking to sponsor a foreign employee for an H-1B visa. With only 65,000 visas available (plus an additional 20,000 for beneficiaries with U.S. master’s degrees), the quota will likely be filled within the first 5 business days after April 1st. That means employers must be sure to have the petition finalized and ready for submission on March 30th.

So how early should an employer start preparing for an H-1B submission? In my experience, I always tell my clients to start the process as early as January or February. It often takes time to make sure that all H-1B criteria are met:

  • Is the position considered a specialized occupation?
  • Does the employee have the requisite degree?
  • Will the employer be able to pay the prevailing wage?

Once the parameters for the position are determined, the employer has to file a Labor Condition Application. The employer must post the LCA for 10 days, and it may take a week or two for the LCA to be certified. Factor in the fact that some employers are not recognized by the Department of Labor, so a FEIN verification must be submitted in advance. This means that just the fist step of the H-1B application could take 3 weeks. After that, we have to prepare all the USCIS forms and appropriate supporting evidence. This means it could take 5-6 weeks from start to finish.

To throw a wrench into things, an employer doesn’t want to have the LCA certified too early. Otherwise, this would “eat” into the amount of days that the H-1B application could be approved for.

We have also been asked when is the absolute latest an employer can start preparing an H-1B petition to still make the April 1st submission date. Given the 10-day LCA posting and possible FEIN verification, I would say that March 10th would be a good “cut off” day – after which any H-1B petitions may not be finalized in time to make that year’s lottery.

For more information on filing an H-1B visa petition, please contact immigration attorney Cedric M. Shen at (310) 591-8200 or via email at: cedric[at]maxlawinc.com.

What to Expect in With the FY2016 H1B Visa Lottery

As you probably know, Congress allocates 65,000 H-1B visas every fiscal year plus an additional 20,000 visas for beneficiaries who received a U.S. master’s degree or higher. The window for petitioners/employer to file an H-1B petition this fiscal year is April 1, 2016 and, assuming that the number of applications exceeds the quota, USCIS will stop accepting any petitions filed five days after April 1st. Given that the quota has been exceeded by an increasingly large number over the past several years, it is almost a guarantee that this year’s H-1B quota will be met within the first few days of April 1st. Assuming that your petition was one of the lucky ones selected in the draw, and assuming your petition is actually approved by USCIS, the earliest the beneficiary will be able to start working in H-1B status is October 1, 2016.

What to do to prepare for an H-1B filing?

You can do several things in advance to ensure a timely H-1B submission on April 1st:

  • The employer and employee should have a discussion about sponsorship and the proposed position (i.e., title, duties, salary, etc.)
  • The employee should obtain a copy of their diploma, transcript, or letter confirming completion of courses towards the degree
  • Ask your lawyer how to have the employer’s FEIN verified in advance
  • If the employee is currently on OPT, check to see if he or she is covered under the “Cap Gap”

Filing an H-1B petition on April 1st does not guarantee that your application will make the lottery. While logic would dictate that USCIS accepts cases in the order they were received, that is not the case. In fact, if the quota is met within five days, the USCIS will do a random draw of all applications received and only select 65,000 + 20,000 (master’s cap) for further processing. So if your petition was the first one submitted, it could still not be selected in the lottery while the last petition submitted on the last day is selected.

To learn more about the H-1B visa lottery process, feel free to contact us at (310) 591-8200.