Trying to decide whether you should hire an immigration attorney to process your company's H-1B petitions or help you in your own quest for an H-1B visa? This article will help you, by outlining common issues that arise during the H-1B petition process and explaining how hiring an immigration attorney can expedite the process and avoid delays and denials.
H-1B classification is available to foreign workers coming to the U.S. temporarily to perform services for U.S. employers. While there are many advantages to H-1B status, it may not be appropriate for your specific situation. Consulting an immigration attorney may help you decide whether you should pursue H-1B status, or another visa status.
It is important to bear in mind that H-1B status is a nonimmigrant status, meaning that it cannot, by itself, lead to permanent residence in the U.S. (a green card). However, once a nonimmigrant is in the U.S. in H-1B status, he or she may be eligible to apply for a green card and continue working in the U.S. pursuant to the H-1B status, (in place of waiting for the green card approval in his or her own country).
If you are an H-1B-eligible immigrant, an immigration attorney can assist you in planning a long-term immigration strategy that could save you years of waiting and allow you to work in the U.S. while other applications are pending, if your ultimate goal is a U.S. green card.
Additionally, even if you already obtained H-1B status without the assistance of an immigration attorney, it may help you to hire an attorney if you are nearing your H-1B maximum stay of six years. At the end of your sixth year you will be expected to leave the U.S. for one year before reentering in H-1B status. However, there are important exceptions to this rule, which allow H-1B holders to extend their status past six years if they meet certain criteria. The rules governing these exceptions are complicated and contain time-sensitive provisions. Hiring an immigration attorney will make a material difference in ensuring that you do not miss critical opportunities to extend your H-1B status.
Another compelling reason for hiring an immigration attorney is that, as a trained legal professional, the attorney will have the knowledge and experience it takes to complete the I-129 Petition (the first application filed with U.S. Citizenship and Information Services or USCIS). The following are just a few of the trickier portions of the I-129 Petition. Making mistakes on the petition, especially in the following areas, can lead to USCIS sending follow-up Requests for Evidence, conducting audits, or even denying cases.
1. Form I-129, Part 2, Question 2: This part of the form asks for the basis for classification (i.e., new employment, continuation of previously approved employment, amended petition, etc.) The selection you choose depends upon your own unique employment situation and must accurately reflect the terms of your employment. If you are changing employers, filing for concurrent employment, or changing the terms of your previously approved employment, you will need to decide which selection most accurately represents your employment. An immigration attorney would be extremely helpful in analyzing your unique situation and preparing the form correctly to ensure USCIS does not reject the petition.
2. Form I-129, Part 2, Question 4: This part of the form asks for the requested action, i.e. do you want your status to change from a different nonimmigrant status to H-1B, do you want to extend your status, do you want to amend your stay, etc. Again, this critical aspect of the form governs your authorized stay in the U.S., and hiring an immigration attorney to complete this form on your behalf will greatly reduce the chances of errors (especially fatal errors) in the petition.
3. Form I-129, Part 5, Questions 4 and 5: This part of the form relates to the worksite addresses where the employment services will be rendered. USCIS requires that the employer account for all worksites on the I-129 Petition. This is especially critical for physicians, who may see patients at more than one hospital, as well as for IT personnel who may work for multiple end-clients in different locations. An immigration attorney well-versed in roving employment will be able to complete this section to the satisfaction of USCIS.
4. Form I-129, Part 6, Questions 1 and 2: This part of the form relates to the release of controlled technology to foreign persons in the United States. This is a new addition to the form that has presented even practitioners with difficulty. Since this part of the form is a certification that must be executed by the employer, it is hugely important to provide correct answers to the questions. An immigration attorney will be able to walk you through this process.
A certified Labor Condition Application (LCA) must be included with the I-129 Petition. The LCA is an online form that lists the conditions of the prospective H-1B employment (wages, hours, duties, worksite locations, an so forth) that the employer submits to the Department of Labor. The information contained in the LCA must be correct, to ensure that it accurately reflects the job opportunity. An immigration attorney will be able to draft and complete an LCA that comports with all necessary requirements so that the Department of Labor does not deny certification.
Other issues to bear in mind when preparing an application for H-1B status are:
1. Fees: H-1B fees vary from employer to employer. An immigration attorney will be able to confirm which fees apply to your specific case.
2. H-1B Cap: An immigration attorney will be able to tell you whether you are subject to the H-1B limit of 65,000 visas issued per fiscal year. Your attorney will be able to advise you on when to file your H-1B petition to ensure that your petition is not denied due to lack of H-1B visa numbers.
3. J-1s: If you have ever been in J-1 status, your case may have additional issues that should be discussed with an attorney.
4. Public access and internal files: U.S. law requires H-1B employers to retain certain documents in public access and internal files at the employer’s place of business. An immigration attorney will help you prepare and maintain these files to ensure compliance with the relevant U.S. laws.
See Alllaw's section on Using an Immigration Lawyer for more on finding a good one.