Understanding the H-1B Cap Makes the Petition Process Easier
Categories News & Updates USCIS

Understanding the H-1B Cap Makes the Petition Process Easier

It would be nice if filing an H-1B petition for business immigration were as simple as completing a two- or three-page application and waiting a few weeks to get approval. Unfortunately, that is not how it works. The H-1B system is among the most complex of all immigration and visa programs. Much of the misunderstanding related to H-1B visas is the direct result of a cap system.

Congress has intentionally limited the number of H-1B visas USCIS can issue every year through a hard cap. The cap currently sits at 65,000. There are an additional 20,000 visas available to certain exempt individuals. If all the additional visas are not used in a given fiscal year, they are carried over and added to the 65,000 ‘standard’ visas for the following year.

The Basics of How It Works

Due to the limits and the fact that the cap is almost always reached very early on in any given fiscal year, USCIS doesn’t even accept H-1B petitions from foreign nationals who haven’t been selected in the annual lottery. So how does a person get their name in the system? By way of electronic registration.

Interested individuals must first create an account on the USCIS website. Registration begins on March 1 and ends on March 17. It is up to the individual to log onto their account during that timeframe to complete the registration process. Applicants are selected randomly through a lottery, so it is not necessary that an individual be among the first to register on March 1. They just need to be sure their e-registration is submitted correctly and before the deadline to be included in the H-1B lottery. 

It does not take long for the number of registrations to exceed the total number of visas to be issued for the next fiscal year. Thus, the lottery system. If an individual is selected in the lottery, the next step is to submit the actual H-1B petition.

No Earlier Than Six Months Prior

H-1B petitions need to be filed soon enough to allow processing prior to the start of employment. However, the USCIS does not take petitions any earlier than six months ahead of time. That is generally not a big deal given that petitions can be processed in a few weeks. With an effective date of October 1st, which marks the beginning of the government’s fiscal year, new H-1B applications can be filed no earlier than April 1st. .

That’s a critical time given the fact that a typical petition package includes 14 different types of documentation. Packets must include a number of forms including I-129, supplement forms, and a G-28. They must also include a letter from the employer sponsoring the foreign national, and it is recommended to include a letter from the attorney preparing the application. Packets must include a variety of supporting documentation including personal identification documents, education documents, company documents, and translations as needed. The H-1B application must also demonstrate the candidate’s qualifications for the position being sponsored. 

The key to ensuring swift processing of an H-1B petition is to submit a correct packet. But note that a correct packet doesn’t just contain the right documentation: it should also be arranged in a specific order to make the process easier for the USCIS officer reviewing the case. In cases where an employer submits multiple packets in the same package, each packet should be in a separate envelope.

It All Starts With the Cap

This is simply a brief overview of a very complex and nuanced process. For many foreign-born individuals, their career in the United States starts with the H-1B lottery. The H-1B cap is purposely designed to limit the number of visas the U.S. issues to temporary workers. If you do not understand how the cap system works, you could find yourself easily frustrated by the H-1B process. Fortunately, we can help as business immigration attorneys. We make it our job to know and fully understand everything about the H-1B visa, cap, and lottery system. We have helped our clients successfully navigate the complexities of the H-1B cap for many years.

Please contact us at info@grahamadair.com or 408-715-7067 if you would like our help.

H-1B and EB-1 Different Visas With Different Purposes
Categories Immigration and Customs Enforcement News & Updates USCIS

H-1B vs. EB-1, EB-2 and EB-3: Nonimmigrant Visas vs. Immigrant Visas

Immigration law is complicated. There are no two ways about it. One of the things that makes it complicated is the fact that there are so many different kinds of visas people can obtain in order to gain authorized entry into the U.S. For example, consider the H-1B and EB-1 visas. They are two distinctly different visas with different purposes. Yet that doesn’t prevent confusion among both employers and their foreign-born workers.

As immigration attorneys specializing in business immigration, it is our responsibility to understand the different types of visas that employers might need for their foreign-born workers coming into this country. We pass on our knowledge as we assist both employers and potential employees in their attempts to navigate U.S. immigration law.

The H-1B Visa Is Temporary

The biggest difference between the two visas relates to how long a valid visa holder can remain in this country. Under the H-1B visa program, an employee’s stay is temporary. H-1B visas are typically granted for an initial term of three years. Foreign born workers can renew their visas for another 3 years, providing them with up to six years total. After that, a worker must either change to another status or leave the country.

Statute dictates that the H-1B visa is a non-immigrant visa. In other words, a company is may not be hiring an H-1B visa holder with the goal of making them a permanent resident in the country. Although, in our experience, most companies that are willing to sponsor someone for an H-1B are likely to eventually sponsor them for an immigrant visa down the road. It is important to remember that the H-1B is for temporary work status only.

Foreign Nationals With Special Skills

It is also worth noting that the H-1B visa is not for just anyone. The program is intended to give employers access to foreign nationals with special skills. The skills in question are limited in scope. They are often science, technology, engineering, and mathematics (STEM) related. At a minimum, the position must require a bachelor’s degree. If it’s a foreign degree, it must be evaluated as being equivalent to a U.S. bachelor’s degree. A person may also qualify through a combination of education plus experience that equates to a U.S. bachelor’s degree. 

Employers hoping to bring in foreign nationals under the H-1B program, who then wish to sponsor the employee for an immigrant visa,  typically must demonstrate that they cannot find sufficient talent here at home to fill open positions. They must attest to the fact that an offer of employment under the H-1B program is temporary only. However, H-1B status is considered “dual intent,” which means the person can be in a nonimmigrant status such as H-1B, while also intending to become a lawful permanent resident. 

The EB-1, EB-2, and EB-3 Visas Are Permanent

Where the H-1B visa is technically temporary, the EB-1, EB-2, and EB-3 are permanent. They are immigration visas that give the holder the legal right to live and work in the U.S. indefinitely. They are essentially permanent resident visas. But like the H-1B, the EB-1, EB-2, and EB-3 are not available to everyone. They are specifically designed for foreign nationals with extraordinary ability, skills in the national interest of the United States, professional-level employees, and other skilled workers.

These are typically people with skills that are hard to come by. They are professors, scientific researchers, senior executives, and other types of business professionals that are in short supply in this country.

Employers should understand that EB-1, EB-2 and EB-3 visas can take several months to process, at minimum. More complex applications could take years. EB-1, EB-2, and EB-3 visas are also highly competitive and require a significant amount of documentation. Many categories are oversubscribed, so the employee may potentially need to wait years before receiving lawful permanent residency. This is why having another work status such as H-1B is so critical because it enables them to live and work in the United States while waiting for an immigrant visa. 

EB-1 Visa

The EB-1 is so designated because those who qualify for it are at the top of the list of preferences. Each subsequent EB visa is designated by a number indicating order of preference. There are five EB visas in total. In this article we covered only EB-1, EB-2 and EB-3 because they are the most common. 

Do not let the complex nature of business immigration and visas scare you. If you are looking to bring foreign nationals into the country on a temporary or permanent basis, Graham Adair is here to assist. We can help you navigate the system, complete documentation correctly and on time, and do everything else required to secure those visas.

The Immigration System Itself Is Why You Need an Attorney
Categories Immigration and Customs Enforcement

The Immigration System Itself Is Why You Need an Attorney

We immigration attorneys practice law on behalf of immigrants, their families, and companies hoping to employ them stateside. We work within a system that can be difficult to navigate and even harder to understand. The system itself is why we say you need a business immigration attorney if you are hoping to bring foreign nationals here to work.

It is not our job to judge the U.S. immigration system as being right or wrong from a moral or ethical standpoint. The law is what it is. But we can say that satisfying immigration law is time-consuming. It involves a tremendous amount of paperwork that needs to be completed and submitted correctly. Immigration law is governed by a lot of rules and regulations, some of which are so mundane that they are easy to miss.

A Buffet of Visa Options

One of the first issues foreign nationals run in to when considering immigration for work purposes is figuring out what type of visa to apply for. Needless to say that our system allows for a veritable buffet of options. We have dozens of different visas all defined by their own criteria. How does a worker know which one is most appropriate?

One of the visas we specialize in is the H-1B work visa. It is for skilled laborers in very specific industries. Qualifying for an H-1B is not easy. And even if a worker does qualify, H-1B visas are limited in number and offered on a lottery basis. Qualifying does not guarantee approval.

Unfortunately, even being considered for an H-1B is impossible if paperwork is not completed correctly and submitted on time. It is not difficult for someone who doesn’t understand the system to fall behind and eventually find himself with his back against the wall as the deadline approaches.

A System-Wide Problem

We do not want to give the impression that the only challenge in U.S. immigration is applying for a visa. Indeed, the time-consuming and complex nature of the immigration process is a system-wide problem. Even foreign nationals attempting to seek asylum in the U.S. can struggle.

Take the case of a Nicaraguan immigrant profiled a few months ago by NBC News. He was exiled to the U.S. for political reasons. He is now seeking political asylum in this country. He has already been here five years and his case has stalled.

It is not that the man has done anything wrong. He hasn’t. It’s just that the system has been overwhelmed by backlogs. There are so many people needing help and far too few resources and personnel to help them. Meanwhile, this individual must continue maintaining records of his past to support his case when it is eventually heard.

It is Okay to Need Help

We mention all of this to say that it is okay to need help. Business immigration is not easy. It is certainly not simple. If your company is hoping to bring workers into the U.S. from other countries, your best bet for navigating the system as easily and efficiently as possible is to work with a business immigration attorney.

Business immigration is our specialty here at Graham Adair. We work with clients to get paperwork completed and submitted. We educate foreign nationals about the visa process. We can even help prepare them for their immigration exams.

We cannot make the process any simpler for you. However, we can work alongside you to help you do everything by the book. Needless to say that our system is difficult to work. But that is why you need an immigration attorney.

What Has the USCIS Thinking About Changes to the H-1B Lottery
Categories News & Updates

Why Is the USCIS Thinking About Changes to the H-1B Lottery?

There have been a lot of rumblings in recent months that the US Customs & Immigration Service (USCIS) is seriously thinking about making changes to the H-1B lottery system. The rumors started almost immediately after the USCIS discovered a sharp increase in the number of duplicate applications for FY 2024.

The two big questions are this: are changes forthcoming and, if so, what will they be? Regardless of the answers, one thing that is painfully clear is that the USCIS doesn’t issue nearly enough H-1B visas to satisfy annual demand. Put another way, the current lottery system is not keeping up with the demand for foreign-born workers.

Here at Graham Adair, business immigration is our specialty. We plan to keep an eye on the H-1B lottery. As soon as we know more about pending changes, we will pass that information along. For now, it might be helpful to understand why changes are even being discussed.

Companies Potentially Colluding

As previously mentioned, there was a significant increase in the number of duplicate H-1B applications for FY 2024. In FY 2023, the number of “eligible registrations for beneficiaries with multiple eligible registrations” stood at 165,180. The number rose to 408,891 for FY 2024. Incidentally, the number for FY 2021 was a mere 28,125.

Though the USCIS has not offered any supporting documentation, they claim to have suspicions of companies colluding to increase the chances that certain applicants will be selected in the FY 2024 lottery. The agency suggests that companies are working together to provide multiple job offers to individual candidates for the purposes of submitting more than one application.

Companies Submitting Multiple Applications

The USCIS also suspects that a small number of lesser-known tech companies have submitted multiple applications for foreign nationals. Again, no documentation was provided and no names were named. But if the allegations are true, it would amount to some employers knowingly submitting multiple applications while simultaneously requiring candidates to attest to truthfulness.

Bear in mind that candidates must attest to three things on their applications:

  1. That all the information contained in the registration submission is complete, true, and accurate.
  2. That the registration submission reflects a legitimate job offer from a legitimate employer.
  3. That neither the applicant nor another organization acting on their behalf is trying to game the system in order to increase the chances that the applicant will be selected in the lottery.

Of course, we simplified what applicants must attest to for the purposes of this post. The main point here is that applicants must attest to the fact that they are being completely truthful, and they are not working either individually or with others to artificially inflate their chances of being awarded an H-1B visa.

Graham Adair Can Help

We have no way of knowing whether the USCIS will modify the lottery process so as to make cheating more difficult. Should they decide to do so, we will not know exactly what the changes look like until a proposal is issued. In the meantime, we must work within the boundaries of the system already in place – even if it seems broken.

Graham Adair can help your company and foreign-born job applicants navigate the H-1B visa process. We can help ensure that paperwork is completed properly and submitted through the appropriate channels. We can help prepare your foreign-born applicants for the lottery as well. If you are trying to bring foreign nationals here to work and are confused by all things H-1B related, give us a call. We are business immigration experts.

How Much Do You Know About the I-140 Petition for Workers
Categories News & Updates

How Much Do You Know About the I-140 Petition for Workers?

Immigration attorneys are often asked by former clients about the I-140 petition for their foreign workers. Known officially as I-140, Immigrant Petition for Alien Workers, it is a document employers can file with U.S. Citizenship and Immigration Services (USCIS) in support of a foreign worker becoming a permanent resident.

How much do you know about this petition? Like almost everything else involving the USCIS, there are certain rules and guidelines that apply to the I-140 petition. You need to know all the ins and outs, similar to fully understanding the H-1B visa process.

Temporary Work Visas

Most work visas issued by the USCIS are temporary in nature. They do not give foreign workers permanent status. Upon expiration, a work visa needs to be renewed. But note that it cannot be renewed indefinitely. If a foreign worker wishes to stay in the U.S. permanently, that person must apply for permanent resident status or become a citizen.

The former option is made possible with the I-140 petition. This is a form completed by an employer and submitted to the USCIS on behalf of the employee in question. Submitting the form is the very first step in granting the individual permanent resident status.

In order for a worker to be eligible for permanent status, they must be part of one of the following five worker groups:

  1. EB-1: Priority Workers.
  2. EB-2: Professionals with Advanced Degrees or Exceptional Ability.
  3. EB-3: Skilled Workers, Professionals, or Other Workers.
  4. EB-4: Special Immigrants.
  5. EB-5: Investors.

This particular qualification is not usually a problem for workers already in the country on an H-1B visa. It can be problematic for workers on other types of visas. However, that is a topic for another blog post.

Employers Must Support the Petition

Employers should also be aware that filing the I-140 will not be enough on its own. Rules require that the petition be supported with a variety of documents. For example, it is assumed that the employer wants to offer the foreign worker a permanent placement job. The employer would submit a copy of a job offer with the petition.

Additional documents are required to prove the following:

  • The employer has the ability to pay the prevailing wage.
  • The worker possesses the proper qualifications for the job.
  • The foreign worker’s employment will not negatively impact U.S. citizens.

The last qualification could be the most difficult of all to prove. For example, an employer may have to demonstrate that there are not enough U.S. workers to fill a particular role, creating the need to keep foreign workers here permanently.

It All Takes Time

Underscoring all of this is the reality that things take time with U.S. immigration. In a perfect world, reviewing a foreign worker’s I-140 petition and supporting documents could be completed within a couple of months. But there have been cases in which it takes years. We say this for the simple fact that it is wise to get the process started as soon as employer and employee decide that permanent residency is the best way to go.

In the event a foreign worker’s petition and supporting documents are approved, that individual is then queued up for an immigrant visa granting permanent status. The individual must still apply for the visa, and have one granted, to make things official.

If you employ foreign workers you would like to keep here permanently, and you need help with the I-140 petition or any other part of the process, do not hesitate to contact us. We are business immigration specialists more than capable of walking you through.

1 2 3 6