Three Common Pitfalls in the H-1B Process
By Keith on Jan 7, 2017
The start of the new year is a good time to get serious about H-1B applications. An H-1B is a work visa for professional-level employees, such as IT workers, engineers, accountants, and many others. With luck, and in the hands of an experienced immigration attorney, H-1B visas are an effective tool to attract and retain talented workers from outside of the US. However, there are many places where the H-1B application can fall apart. Here are three common pitfalls.
A job that is not professional enough. An H-1B is not appropriate for all jobs. While the word “professional” encompasses many jobs that qualify for H-1Bs, that is not the test that immigration uses. Instead, immigration consults the Department of Labor to see if the job in question requires entry-level workers for the job in question to have at least a bachelor’s degree in a specific major or in one of a closely-related group of majors. This is known as a “speciality occupation.” The definition is specific because immigration can be picky on this point. The job of ‘architect,’ for example, really does always require at least a bachelor’s degree in architecture. For other jobs, especially jobs in business fields, this is not always true. Where the job does not clearly qualify as a “specialty occupation,” you can expect pushback from immigration. Inexperienced attorneys sometimes confuse the job requirements as explained by the Department of Labor with the employer’s idiosyncratic job requirements or even with the employee’s qualifications for the job. This mistake is understandable, but often fatal. Be sure your immigration attorney knows to watch for this pitfall and how to avoid it.
Showing there is sufficient work. The H-1B program is politically-charged and has been abused in the past. One abuse is know as “benching.” This is the practice of hiring an IT worker for a particular project and, once the project is complete, keeping the worker on standby until a new project opens. This practice violates immigration rules because any H-1B worker must actually be working and not just waiting for work. Smaller or new IT companies can expect immigration to demand proof that there is sufficient work for the H-1B worker to do. Immigration will want to see contracts between the employer and clients/customers along with work orders under these contracts. The contracts and work orders need to show that there is enough professional-level work for the H-1B worker to do. Inexperienced attorneys may rely on employer statements that work will be available or even financial documents showing enough funds to pay for the worker. These items will help allay immigration’s fears, but likely will not be enough for an approval. Be sure your immigration attorney knows if proof of future work will be needed and how to prove it.
An immigration attorney who charges too little. Preparing a thorough and complete H-1B application takes several hours of work, but it is often only part of a longer process. In many cases (especially in those cases noted above), immigration will not make a yes/no decision based on the initial application. Instead, immigration frequently issues a “request for evidence.” Some attorneys will make it clear that their fees for legal services include responding to a request for evidence. Other attorneys leave this as an unpleasant surprise down the road. In fact, responding to a request for evidence can easily take more time and effort than the initial H-1B application, so this surprise fee may be more than double the initially-quoted fee. Be sure you know how your immigration attorney will charge you for this.
Conclusion. Of course, these are just three common pitfalls. Numerous other considerations go into each H-1B application. If you are considering an H-1B, talk with your immigration attorney soon, and remember to discuss the points above. The H-1B application window is the first week of April, but a successful application takes several weeks at a minimum to put together. Don’t delay!