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The H-1B Lottery Starts Next Week – Are You Ready?

Next week, USCIS will begin to accept cap-subject H-1B petitions for the 2018 fiscal year.  Many immigration law firms, U.S. businesses, and foreign nationals have been preparing their petitions for several weeks in anticipation of the upcoming submission date.  To make sure you are ready to submit your petition to USCIS, go through the checklist below and confirm that all of your paperwork is in order.paper

H-1B Submission Checklist

1. All forms must be signed, and all correct fees must be submitted.  This may seem like a no-brainer, but it can be very easy for companies to accidentally forget to sign a form or to forget to include the correct fees with a petition, especially if that company is filing multiple petitions. (Some companies file more than 100 H-1B petitions each year.)  The following forms require a company representative’s signature (and an attorney’s signature if the company is using legal representation for the H-1B submission):  the Form G-28, the Form I-129, and the Form I-129 H Supplement.  It is important to note that the employer must sign the Form I-129 H Supplement in two places.  Additionally, a Form I-129 Data Collection must also be submitted but does not require a signature.

The Labor Conditions Application (LCA) must also be signed and submitted along with the aforementioned forms.  This document must be submitted to the Department of Labor (DOL) for approval before submitting it to USCIS with the H-1B petition.  It can take the DOL seven days to approve an LCA, so if you have not submitted the LCA for your case, you must do so immediately.

The Form I-129 instructions that are available on the USCIS website are very helpful in determining exactly which fees the company must pay to USCIS in connection with the H-1B.  All cap-subject petitions must be accompanied by the base Form I-129 filing fee, the anti-fraud fee, and the American Competitiveness and Workplace Improvement Act (ACWIA) fee.  However, there are two kinds of ACWIA fees, and the amount a company pays depends on the company’s employee count.  Additionally, there is another Public Law fee that companies will be required to pay if they employ a certain amount of H-1B and L-1 foreign workers.

2. Include all of the required supporting documentation for both the H-1B position and the H-1B worker.  In order to qualify for an H-1B visa, both the foreign national and the position itself must meet certain requirements.  The foreign national must possess a bachelor’s degree (or the foreign equivalent or equivalent work experience).  H-1B petitions should contain proof of the foreign national’s education and experience credentials, as well as any other requirements that are needed for the position, such as a license or certification.

The H-1B petition should also contain an explanation outlining why the offered position is in a specialty occupation.  If the position is clearly in a specialty occupation, such as a lawyer or a doctor, a simple explanation will do.  But if the position is that of a chef or a  market research analyst, it may be necessary to obtain an expert opinion confirming that the position meets the H-1B standard.

3. Mail the H-1B petition to the correct USCIS service center.  Again, the USCIS instructions are a must-read in order to ensure the H-1B petition is sent to the correct service center.  The California and Vermont Service Centers will be accepting H-1B petitions this year.  The place of employment determines which service center has jurisdiction over your H-1B petition.  If you submit the petition to the wrong service center, it will be returned to you, and the case will not be eligible for the lottery this year – which is why identifying the correct service center is very important!

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