Pro-Tips for the Coming H-1B Season

13 January 2017 Labor & Employment Law Perspectives Blog

The New Year is upon us.  For companies seeking to hire high-skilled international workers, it means the start of the FY2018 H-1B filing season.  The filing period for H-1B cap subject petitions opens on April 1 of each year for work beginning on Oct. 1, the start of the government’s fiscal year.  In 2016, the government received over 236,000 for the approximately 85,000 available cap subject H-1Bs.  H-1B petitions must be received within five business days starting April 3, 2017 in order to be considered for processing.  Petitions will be randomly selected for processing.  Below are some pro-tips to help you get ready.

Start Early

Select and communicate with your immigration counsel as early as possible.  Starting early is the best way to ensure timely filing.  Your immigration lawyer will ask you to provide extensive information and documentation from the employer and the employee.  Have company information collected and ready to provide to your lawyer.  Here is some of the mandatory information you should have prepared:

  1. Company Information
    • Obtain the legal name of the sponsoring company, address and tax identification number (FEIN);
    • Determine who will be the company contact regarding H-1B issues and who will be designated to execute H-1B documents.
  2. Position Information
    • Obtain a copy of the positon description;
    • Determine the educational and experience requirements;
    • Determine the address where the work will be performed;
    • Determine the wage offered for the position.
  3. Compliance Documentation
    • Obtain documentation showing the methodology for determining the wage offered;
    • Obtain documentation of benefits offered;
    • Determine the number of H-1B and L-1 workers employed.
  4. Have the employee begin collecting their personal documents including passport, résumé, diplomas and academic transcripts, academic equivalency documents, translations, experience letters, I‑94, I-20s, EADs, I-797s, and all other immigration documents.

For small and new businesses:

  1. First time filers must provide an IRS letter issuing FEIN;
  2. Promotional documentation about the employer;
  3. Tax or financial documentation showing the business can support the position offered.

For employers who will be placing their employees at other worksites, the employer should provide service agreements for the employee to work at the offsite location.  The employer will also need to provide documentary evidence that the offsite employee will be under the control and supervision of the employer.  The employer may also need to provide documentation evidencing that there is sufficient work available for the worker.

To Pay or Not to Pay: Is Premium Processing Worth It

Paying the additional fee for premium processing may be worth the price.  The premium processing program offers adjudication or action taken on a case within 15 days of receipt.  In the past, USCIS did not offer premium processing for cap subject H-1B petitions.  In recent years, USCIS has allowed payment of premium processing on cap subject petitions.

There are a few reasons why paying for premium processing may be worth the additional cost.

First, premium processing applications are notified whether the H-1B petition has been selected for processing first.  If the case isn’t selected for processing, no fees will be charged.  Under normal processing, an official notice of selection may not arrive until mid-May.

Second, knowing whether the petition has been selected for processing early can also help the employer prepare for contingency situations like obtaining a timely OPT STEM extension for the employee.

Third, the case will be adjudicated sooner.  This is important if the employee will need to travel outside the United States and consular process.  Under normal processing times, approval may not be received until late Aug. or Sept. and delay the employee from starting work on the intended date.

Prepare for the STEM Extension

Many employers will be filing H-1B petitions for international students employed under the Optional Practical Training Program (OPT).  In 2016, less than 40 percent of H-1B cap-subject petitions were selected for processing.  Given the low likelihood of petition selection, it is important for employers to take advantage of the 24-month extension available for OPT holders who are STEM graduates of U.S. institutions of higher education.  To take advantage of the 24-month STEM OPT extension, the following must apply before the student’s existing OPT expires:

  1. The student must have graduated from  designated STEM program as listed on;
  2. The employer must be enrolled in E-Verify (;
  3. Complete Form I-983 Training Plan for STEM OPT Students and submit the form to the university Designated School Official. The student will obtain a new I-20;
  4. The student will submit Form I-765 prior to expiration of the existing OPT. The existing OPT will be extended for 180 days or until adjudication of the OPT extension.

It is never too early to be prepared for the H-1B filing season.  Reach out to your immigration attorney regarding your H-1B filing as soon as possible.

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