Failure to include any of these in the initial petition often resulted in H-1B denials. The good news going forward is that USCIS no longer should deny H-1B petitions solely because the employee will work at a client location. For a previously denied petition, employers either can file a new petition or go to court to overturn the denial. Some denials asserted that using an entry-level prevailing wage Level 1 in the Department of Labor's system , which is appropriate for many jobs that require a bachelor's degree and up to two years of experience, means that the job cannot possibly require a bachelor's degree.
That was the focus in , but appears as of no longer to be an automatic ground to question whether the job can qualify for an H-1B petition. Setting aside the illogical reasoning of these decisions, employers need to be prepared for yet more surprising reasons for H-1B denials under the current administration. In most cases, U. If you applied for your H-1B visa at a consulate abroad, it first will issue a g request.
USCIS requests will ordinarily either state a list of documents that must be provided or a list of questions to explain in a letter response. The request will give a deadline by which the response is due. A g request is similar to the RFE, but depending on the consulate, will be given to the beneficiary after the consular interview. It will contain specific instructions for documentation needed and instructions on how to return these items to the U. The g request typically does not contain a deadline, and you simply need to wait to hear from the U.
Another potential delay at the consulate is "Administrative Processing," which is an additional level of review the consular officer conducts before approving or denying a visa application.
Administrative Processing can happen before or after a g request. The U. State Department guidance as of requires visa applicants to wait at least days before inquiring into the status of their applications if they have not heard from the consulate sooner. The frustrating thing about Administrative Processing is that the consular officer often does not say why further review is needed.
For example, a new LCA is not usually necessary if the same employer wishes to hire five software engineers at the same level, but it is necessary if they wish to hire five noncitizens in five different positions. Information contained within the form includes:. There are no appeals or motions for denied applications, but employers can file a new LCA if there is enough time before the H-1B filing deadline of the relevant fiscal year.
Employers can check the status of their Labor Condition Application at any time by logging into the iCERT platform with their credentials. The next step involves filing an H-1B petition with the U. The U. The existing H-1B cap for the fiscal year is 85, visas.
The first step is a lottery of all the H-1B applications into the regular 65, visas quota. If an individual with an advanced degree is not selected in this lottery, they get a second chance.
USCIS conducts a second random lottery with advanced degree holders who are not selected in the first round to fill the remaining 20, advanced degree spots. USCIS then notifies all employers who filed an H-1B petition whether their sponsored noncitizen workers were successful in the lottery.
Successful lottery petitions allow companies to continue the H-1B application process. Employers file H-1B applications on behalf of the employees they wish to sponsor for the nonimmigrant work visa. They are also responsible for paying all associated fees; the noncitizen worker may elect to pay for optional premium processing or attorney fees if he or she wishes. Every H-1B application must include Form I, Petition for a Nonimmigrant Worker, which includes details about the noncitizen worker as well as their prospective company and role.
Employers with 26 or more full-time workers usually pay a higher fee. The H-1B application can be submitted using regular or premium processing; the choice has no impact on visa approval or denial. Regular processing for H-1B applications can take anywhere from a few weeks to a few months.
If any skilled worker from outside the U. Department of Labor. The H-1B visa offers skilled workers from around the world the chance to work and live in the U.
It also benefits American companies that can hire talented individuals with skills that are scarce among the domestic workforce. You can find more information about this particular visa in our ultimate guide to the H-1B visa. An employer going through the Labor Cert process must take care to reasonably set the requirements for the job.
The law requires that an employer sponsoring a foreign national pay that employee at least the prevailing wage rate for the particular job.
The employer must also be able to prove that the company can afford to pay the employee at the prevailing wage. The purpose of the law is twofold: to prevent foreign national workers from being exploited through lower wages, and to prevent the depression of wages in the job market. The prevailing wage is the "average" wage paid to persons employed in similar positions, requiring similar educational, experiential, and skill requirements, in the local geographic area.
The U. Department of Labor and state labor agencies regularly collect wage information from the wide variety of careers and fields. A number of private wage survey firms also collect and compile this wage data. Employers cannot dance around prevailing wages. If an employer wishes to sponsor a foreign national through a specific job, the employer must attest that the foreign national will receive at least the prevailing wage and that the employer has the finances to pay at least that wage.
This can be a significant stumbling block for many employers. For example, some employers might find the "official" prevailing wage particularly high as compared to what they would normally pay a U.
Other employers might not have the necessary financial documentation to show that they can afford to pay the prevailing wage. Prevailing wages can present huge problems for many employers. Foreign nationals hoping for sponsorship through a U. The law says that if an employer lays off or furloughs employees, that employer cannot simultaneously or suddenly sponsor a foreign national for the same jobs or positions without first taking extra steps. Those steps include carefully reviewing the qualifications of the terminated employees to determine whether they may meet the job requirements.
If so, the employer first must offer the job to the terminated employees. As you can imagine, this creates an awkward situation if laid off employees says they would accept the job.
Many employers simply choose to postpone the process for six months, when they're outside the restricted period for layoffs. If you are in an industry or field that regularly or seasonally experiences layoffs, or if the economic conditions are volatile, watch out for situations where layoffs and furloughs are real possibilities; these can sink a Labor Cert application.
The employment-based immigration process can be one of the fastest routes to obtaining a green card and permanent residence. However, the Labor Cert process, essential to the majority of employment-based green card applications, is fraught with pitfalls that can potentially delay or even derail an applicant from the road to permanent residence.
If you are seeking an employment-sponsored green card through the Labor Cert process, or if you are an employer looking to sponsor a foreign national employee, you should discuss your case with an immigration attorney. Browse All Immigration Topics ». The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
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