Navigating H-1B Sponsorship: A Comprehensive Guide

This is another installment of “Dear Sophie,” a resource dedicated to addressing immigration concerns specifically related to employment within the technology sector.

Sophie Alcorn, a Silicon Valley-based immigration lawyer, emphasizes the importance of these inquiries. She states that these questions are instrumental in disseminating knowledge, empowering individuals globally to overcome geographical limitations and achieve their aspirations.

Whether you are involved in human resources, are a company founder, or are actively seeking employment in Silicon Valley, your questions are welcome for consideration in a future column.

Exclusive Access for Extra Crunch Members: Subscribers gain weekly access to the “Dear Sophie” column. A 50% discount is available on one- or two-year subscriptions using the promo code ALCORN.

Question: H-1B Petition Complexity and Recent Changes

I am interested in sponsoring a prospective employee with an H-1B visa, but the petitioning procedure appears quite intricate.

Could you detail the components of an H-1B petition? What modifications have been implemented recently? Furthermore, will the lottery selection be determined by wages or remain a random process?

— Hungry to Learn in Hillsborough

Answer: Preparing for the H-1B Lottery

You are wise to begin preparations for the H-1B lottery now, as the registration period is rapidly approaching.

Our recent podcast, “Immigration Law for Tech Startups,” featured a detailed discussion regarding planning for the H-1B lottery.

This column provides a step-by-step guide to initiating your first H-1B petition, alongside updates on lottery timelines, the potential for a wage-based or pay-to-play system, the conclusion of the “Buy American, Hire American” initiative, and alterations in the calculation of H-1B wage levels.

Here’s a breakdown of key considerations:

• H-1B Petition Components: The petition requires detailed documentation regarding the employer, the job offered, and the employee’s qualifications.
• Recent Changes: Recent updates have focused on increased scrutiny of petitions and stricter enforcement of wage requirements.
• Lottery System: The possibility of a wage-based lottery is under consideration, potentially prioritizing candidates with higher salary offers.

Understanding these elements is crucial for a successful H-1B sponsorship.

Understanding the H-1B Visa

For those beginning to explore the H-1B visa process, it's understandable to feel overwhelmed. The H-1B lottery season doesn't have to be intimidating. A clear, step-by-step guide can simplify the petition process.

Consider this a comprehensive roadmap designed to demystify the H-1B application.

The H-1B Petition: A Breakdown

The H-1B petition can be approached as a series of well-defined steps. Each stage requires careful attention to detail to ensure a successful outcome.

• Step 1: Employer Sponsorship. A U.S. employer must first offer you a position that qualifies for H-1B status.
• Step 2: Labor Condition Application (LCA). The employer then files an LCA with the Department of Labor.
• Step 3: H-1B Petition Filing. Following LCA approval, the employer submits the H-1B petition to U.S. Citizenship and Immigration Services (USCIS).
• Step 4: The Lottery. If the number of petitions exceeds the annual quota, USCIS conducts a lottery to select eligible petitions.
• Step 5: Petition Approval & Visa Interview. Selected petitions are reviewed and, if approved, the applicant attends a visa interview at a U.S. embassy or consulate.

USCIS plays a central role in the H-1B process, reviewing petitions and making final decisions. Understanding their requirements is crucial.

Navigating the H-1B process requires diligence and a thorough understanding of each stage. Preparation is key to a successful application.

Alcorn H-1B Petition Recipe

Ingredients

• A company desiring to employ skilled international professionals
• Multiple qualified candidates seeking employment opportunities globally
• An experienced attorney specializing in business immigration
• A dedicated business immigration paralegal
• Clear and consistent communication protocols
• A substantial amount of legal strategy, adjustable to case complexity
• Significant effort, shared amongst the team
• Four measured portions of enthusiasm and commitment
• Two completed questionnaires
• One Labor Condition Application (LCA)
• Four USCIS forms, potentially five for expedited processing
• A comprehensive letter detailing company support
• Supporting documentation from the job applicant(s), as required
• Optional: Company formation records for startup ventures

Directions

1. Begin the H-1B process with a well-defined legal strategy. Combine the employer and prospective employee with a business immigration attorney and paralegal. Incorporate clear communication, half a gallon of legal strategy, and one cup of enthusiasm.
2. Separate the remaining components into distinct categories, acknowledging potential overlap.
3. Distribute the two questionnaires equally between the employer and applicant. Process these under moderate or intense conditions, depending on the desired timeline.
4. Once the questionnaires are thoroughly completed, remove them from processing and carefully review for accuracy.
5. Utilize the information gathered to prepare the Labor Condition Application (LCA). Add one cup of legal strategy and one quart of dedicated effort. Allow this to develop for 7-10 days.
6. While the LCA is in progress, individually prepare the necessary USCIS forms. Incorporate half a cup of legal strategy and two cups of effort for each form.
7. With the forms prepared, leverage the remaining legal strategy, two quarts of effort, and one cup of enthusiasm to craft a compelling letter of support.
8. Once the letter and LCA are finalized, combine the completed forms, LCA, and letter within a digital document (Adobe Acrobat is recommended). Integrate the applicant’s supporting documents. Add one cup of enthusiasm. Include company formation details if applicable.
9. Submit the completed package to USCIS for adjudication, fueled by the remaining two cups of enthusiasm.
10. Allow 15 calendar days for a quick response, or anticipate a processing time of 4-6 months.
11. The petition is complete!

For seasoned professionals seeking the latest H-1B information, here is a summary of recent developments following the change in administration:

H-1B Lottery: Anticipated Timeline

An official announcement concerning the specifics of the FY2022 H-1B lottery registration is expected shortly. This lottery pertains to cap-subject petitions for nonimmigrant visas.

The electronic registration window will be open for a minimum of 14 days. The latest date for the commencement of this period is projected to be March 18, 2021.

Registration Period Details

Further information is pending regarding the exact start date of the initial registration period. In the previous year, this period extended from March 1st to March 20th.

For a comprehensive understanding of last year’s process, you can revisit the recording of “Get Ready for the H-1B FY2022 Lottery.”

• Staying informed is vital for individuals intending to submit H-1B petitions this year.
• Adhering to these dates is of paramount importance.

Careful attention to the announced timeline will be essential for successful participation in the lottery process.

Potential Shifts in the H-1B Lottery System

A final regulation, titled “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petitions,” originally enacted during the Trump administration, is presently slated to become operational on March 9, 2021.

This rule proposes a significant alteration to the H-1B lottery process. Currently random, the selection would transition to a system prioritizing petitions based on a descending scale of relative wages.

Following the change in administration, the Biden administration issued directives on January 20th, requesting all federal agencies to evaluate postponing the implementation of certain pending rules, including this particular one.

Current Status and Indications

The immigration community is keenly anticipating a decision regarding this potential delay. To date, the United States Citizenship and Immigration Services (USCIS) has not released any official notice in the Federal Register suggesting a postponement of the wage-based H-1B lottery.

Recent developments, however, offer preliminary signals that the system may proceed as initially outlined by the previous administration, even under the current leadership.

These indications include modifications to the online H-1B registration tool and associated forms.

Potential Impacts of a Wage-Based System

While a wage-based allocation system could potentially lead to increased labor costs for certain employers, it also presents the possibility of enhanced security for immigrants and greater predictability for companies.

Such a system could foster a more stable and reliable environment for both employees and employers navigating the H-1B visa process.

As we await USCIS’s final determination, further information regarding H-1B visas can be found in our complimentary guide.

• Increased Employer Predictability: A wage-based system could offer more clarity in planning.
• Enhanced Immigrant Security: Prioritizing higher wages may lead to more stable employment.
• Potential Cost Implications: Some employers may face increased salary expenses.

A Shift in Policy: The Conclusion of Buy American, Hire American

President Biden formally concluded the "Buy American and Hire American" policy on January 25th through the issuance of Executive Order 14005.

This new order, titled “Ensuring the Future Is Made in All of America by All of America’s Workers,” signifies a departure from the previous administration’s approach.

A Broader Economic Focus

The executive order prioritizes bolstering the competitiveness of American businesses within key strategic sectors.

Furthermore, it aims to foster an environment where American workers can prosper and achieve economic success.

This represents a shift towards a more inclusive and comprehensive strategy for economic growth.

Implications for Visas and Green Cards

It is expected that this policy change will likely result in an increased approval rate for both U.S.-business-based visas and green cards.

The broadened focus may facilitate a more streamlined process for skilled workers seeking to contribute to the American economy.

Consequently, businesses may find it easier to attract and retain international talent.

• The previous "Buy American and Hire American" order has been rescinded.
• Executive Order 14005 emphasizes broader economic competitiveness.
• An increase in approved visas and green cards is anticipated.

This adjustment in policy reflects a commitment to supporting American businesses and workers while also recognizing the value of international expertise.

Updates to Prevailing Wage Determinations

Adjustments have been made to the methodologies used for determining prevailing wages for visa applications, including those for H-1B visas and the PERM labor certification process related to green cards. Ron Klain, the White House Chief of Staff, has suggested that recently proposed regulations could be retracted or postponed.

The Department of Labor has already rescinded the H-1B Program Bulletin issued by the Office of Foreign Labor Certification, as well as a Field Assistance Bulletin (FAB) from the Wage and Hour Division concerning Labor Condition Applications (LCAs). Consequently, these are no longer valid.

Furthermore, the DOL announced a delay in the implementation of the rule concerning prevailing wage levels, pushing its effective date to May 14, 2021.

Staying Informed on H-1B Updates

Comprehensive tracking of all significant H-1B modifications is ongoing. Readers are encouraged to follow Dear Sophie for the most current information and developments.

Best regards,

Sophie

Questions are welcome and can be submitted here. Please note that submissions may be edited for clarity and brevity. The information presented within “Dear Sophie” is intended for general knowledge and should not be considered legal counsel.

Additional Resources

• For a complete understanding of the limitations of “Dear Sophie,” please refer to our comprehensive disclaimer available here.
• Direct contact with Sophie is possible through Alcorn Immigration Law.
• Sophie’s podcast, “Immigration Law for Tech Startups,” can be found on all popular podcasting platforms.
• Applications are currently being accepted for potential guests on the podcast.