H-1B Visas — Memorandum

This memorandum briefly describes the requirements and procedures for an Employer (the “Employer“)to petition for a specialty occupation worker (“H-1B“) visa on behalf of a foreign employee (the “Beneficiary“). If you are subject to the H-1B Cap, please see the new electronic pre-registration information below and be aware of the March 1st – March 20th deadline.

H-1B Lottery Instructions and Changes (effective January 2024)

Requirements for the H-1B status

  • The Employer must be a U.S. Company and must have a U.S. federal employer’s identification number.
  • An employer/employee relationship must exist between the Employer and Beneficiary. The Employer may hire, pay, fire, supervise or otherwise control the work of the Beneficiary. Independent contractors do not qualify for H-1B status.
  • The Employer must offer the Beneficiary a position which requires, as a minimum requirement for entry into the position in the United States, a bachelor’s degree or higher in a specific field
  • The Beneficiary must have a bachelor’s degree or higher in the specific field. If the Beneficiary has a degree from a foreign institution, the Beneficiary will need to obtain a credentials evaluation, which confirms that the foreign degree is the equivalent of a bachelor’s or higher degree from an accredited institution of higher education in the United States.

Obligations of the Employer

  • The U.S. Employer must make the following attestations regarding the H-1B petition:  (a) it will pay the Beneficiary, at a minimum, the prevailing wage for the position offered; (b) it will not treat the Beneficiary any differently than any other person in the same or similar position; (c) there is no strike or lockout at the Employer’s facilities; and (d) appropriate notification has been given to other employees or bargaining unit.  These attestations are made in the Application for Labor Conditions Application (Form ETA 9035) (“LCA”), which must be certified by the U.S. Department of Labor (“DOL”) before the H-1B petition is filed with the USCIS.  In addition, the Employer is required to maintain an H-1B Public Access File, which contains documentary evidence in support of these attestations.
  • The U.S. Employer is required to pay the ACWIA Fee and the Fraud Fee (as those terms as described below in the section regarding Filing Fees).
  • In the event that the US Employer terminates the Beneficiary prior to the end of the H-1B period, the Employer is required to pay for the Beneficiary’s return transportation home.

H-1B Cap

At the present time, there is a cap of 65,000 H-1B visas that are available for new H-1B applicants during a fiscal year (“H-1B Cap”).1 The new fiscal year starts on October 1. Since the U.S. Citizenship and Immigration Service (“USCIS”) will accept H-1B petitions at least six months prior to the desired employment start date, the Employer may file an H-1B petition as early as April 1.2 We recommend that the H-1B petition be filed as close after April 1, as possible because it is difficult to predict when the cap will be reached.

New (2020) – H-1B E-Registration Procedure. Effective 2020, if you wish to file a petition for a new H-1B, you must first register electronically with USCIS and pay a fee of $10.00 for each H-1B registration submission. The registration period will take place from March 1 to March 20, 2020. Only those persons who (1) pre-register and (2) are selected by the USCIS before March 31, 2020 will be eligible to file new cap-subject H-1B petitions starting April 1st for a position to start on October 1st.

The H-1B Cap created a “cap gap” for those beneficiaries who are in the United States pursuant to academic student (F-1) status whose authorized stay in the United States after optional practical training expired prior to the start of the next fiscal year. For these students, the USCIS will automatically extend both their authorized stay in the United States and their employment authorization through October 1 (“Cap Gap Extension”) but only in the following situations: (a) the optional practical training period expires after April 1st prior to the beginning of the next fiscal year, (b) a valid H-1B petition has been filed and accepted for processing under the H-1B Cap and (c) the job offer is for a position to start on October 1st of the next fiscal year. In the event that the H-1B petition is denied prior to October 1st, the Cap Gap Extension will automatically expire and the student must leave the United States or seek other immigration options.

Benefits of H-1B status

  • The Beneficiary is eligible to continue to work for the U.S. Employer pursuant to this status for a period of up to six years, which is normally granted in two 3-year increments. The six-year limit may be extended under certain conditions.
  • The H-1B is not transferable between U.S. companies. In the event the Beneficiary decides to leave the U.S. Employer, he/she will not be able  to work for any other U.S. employer unless and until the new employer files a new petition on his/her behalf.

H-1B application process

The application process is technically a three-part process: (a) the Employer must file the LCA with the DOL as described above, (b) The Employer must file a petition with the USCIS seeking to classify the Beneficiary as an H-1B1 employee (“H-1B Petition”) and (c) if the H-1B Petition is approved, the Beneficiary

(i) if eligible, may seek to change his/her immigration status in the United States3 or (ii) apply to the U.S. Embassy or Consulate outside the United States for a nonimmigrant H-1B1 visa to enter the United States. The Beneficiary is eligible to change his/her status in the United States without leaving the United States if he/she has continuously maintained lawful status in the United States. However, if the Beneficiary leaves the United States after obtaining a change to H-1B status, he/she must apply for the nonimmigrant H-1B visa prior to his/her re-entry into the United States.

Export control attestation

Under U.S. laws, the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting, is considered to be “an export.” Therefore, although it has always been an implicit requirement, the newly revised Form I-129 requires that the U.S. Employer make an affirmative certification that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that either the U.S. Employer is not required to obtain a license from the Department of Commerce or the Department of State to release “technology” or “technical data” to the H-1B Beneficiary or that if a license is required, it has obtained a license and will take measures to ensure that the Beneficiary will not be exposed to such data without first obtaining an export license covering the Beneficiary. Information about EAR’s requirements pertaining to the release of controlled technology to foreign persons can be found at www.bis.doc.gov. Information about the ITAR‘s requirements pertaining to the release of controlled technical data can be found at https://www.pmddtc.state.gov/faqs/license_foreignpersons.html.

FDNS site visits

The Office of Fraud Detection and National Security (“FDNS”) was created by the U.S. Citizenship and Immigration Services (USCIS) in 2004 to conduct site visits to businesses that sponsor foreign nationals who receive benefits from the USCIS. These site visits are conducted to investigate immigration benefit fraud and to ensure that benefits, such as H-1B status, are not granted to persons who threaten national security or public safety. The FDNS is funded by the Fraud Fee. Employers filing H-1B petitions on behalf of any beneficiaries may be subject to these site visits. The purpose of these site visits are to ensure that the Employer exists and to verify that the information contained in the petitions is accurate.

Services provided by the Law Offices of KahBo Dye-Chiew

KahBo Dye-Chiew, the principal of the Law Offices of KahBo Dye-Chiew, has been helping clients file H-1B petitions since 1991. She will work with the Employer and the Beneficiary to advise them as to the viability of the H-1B petition based on the position offered and the qualifications of the Beneficiary. She assists the Employer in obtaining the prevailing wage determination for the position offered, filing the LCA and prepare the H-1B Public Access File, preparing the petition forms and preparing the Employer’s letter in support of the H-1B Petition, which contains the evidence in support of the petition to show that both the Employer and the Beneficiary meet the requirements of the H-1B Petition.

Ms. Dye-Chiew assists clients in preparing this information based on the information she obtains directly from the client. The LCA, the H-1B petition and the Employer’s letter must be signed by the Employer prior to filing with either the DOL or the USCIS as appropriate. Prior to filing, Ms. Dye-Chiew will request that the Employer carefully review all the documentation and that the Employer’s signature on these documents confirm that the documents accurately represent all information contained therein and that the documentation is ready for filing with the USCIS. An accurately documented petition is the Employer’s best defense in the event of an FDNS Site Visit.

Next steps

As indicated above, if the Employer desires to file the H-1B petition on behalf of the Beneficiary for a position to begin no earlier than October 1 of any specific year, we would recommend that the Employer must electronically pre-register during the period of March 1 – March 20. If you do not pre-register, you will not be eligible to file the H-1B petition. In order to start working on the H-1B process, we will request that the Employer and the Beneficiary sign an engagement letter with our law firm that sets forth the terms of the engagement of this law firm to assist the Employer and the Beneficiary in filing the H-1B petition. A business immigration attorney will provide you with our standard checklist of documents which we will request from the Employer to start processing the H-1B.
Kahbo Dye-Chiew

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