2020 H-1B Petition Process for US Employers

Now that the 2020 H-1B lottery determined which US employers may proceed with filing petitions regarding their intended H-1B positions, employers have 90 days, until June 30, 2020, to get their petitions prepared and filed with DHS. This seems like enough time, but experience shows that Employers and their lawyers need diligence and time to prepare H-1B petitions in time to meet the deadline. Do not wait to begin preparing the H-1B Petition. There are several steps that need to take place before a Petition can be filed, including analysis of the position and education, development of the evidence, Labor Condition Application (LCA) approval, mandatory LCA posting time and signing of posting notice, full review and signatures of the LCA and Petition, determining and securing proper filing fees, and everything else that goes into preparing an H-1B petition. Social distancing, remote work, and lockdown protocols at the employer’s place of business may cause delay in completing these steps, so starting ASAP is crucial.

Mdivani Corporate Immigration Law Firm attorneys Mira Mdivani, Danielle Atchison, and Leyla McMullen have outlined the H-1B process in their book, H-1B Visa Demystified: A Step-by-Step Guide for US Employers.

In a nutshell, these are the “regular” H-1B Cap Preparation Steps:

1. Gather evidence from international personnel and employer. Here is a link to sample H-1B checklists.

2. Analyze offered position, including minimum education and experience requirements, obtain more evidence if needed, including educational evaluations in certain cases.

3. Determine appropriate prevailing wage through prevailing wage analysis using DOL Prevailing Wage Technical Assistance Guide.Prepare/File Labor Condition Application and Prevailing Wage Application.

4. Post and share the LCA in two conspicuous locations for 10 business days at the worksite(s).

5. Create a Public Access File per DOL Regulation.Prepare I-129 Petition for H Classification and Change of Status, pair with filing fees and supporting evidence.

6. File employer’s petition with USCIS.

What to be on the lookout for:

• LCA Posting: The first step in the H-1B process is filing a Labor Condition Application with DOL and posting it physically (or electronically, in some cases) at the worksite. We have found many of our clients are forced to work remotely because of social distancing and lockdown orders, so posting physically may not be an option. DOL has issued an FAQ stating “the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location”. This relaxation of the rules is great news, but does not forgive the requirement of posting notice in general.

• Signatures: Typically, all immigration filings are required to have original wet signatures on them. USCIS released guidance recently allowing employers to submit petitions with reproduced original signatures (scanned signatures) AS LONG AS the originally signed petitions are retained in case USCIS asks for them. Again, we see here that the government is only relaxing the rules temporarily and using scanned electronic signatures may create more work in the future.

• Filing Fees: With many businesses slimming down in-office work, we find employers are having trouble accessing accounting personnel to issue filing fee checks. Our practice is to immediately analyze the type of filing and ask for the appropriate fees. This helps our clients issue them quickly so these are taken care of before any further pandemic lockdowns occur.

Filing timely H-1B cap petitions is important. Employers should begin working on preparing H-1B petitions diligently to avoid getting caught in the eye of this storm.

Helpful Resources:

Book: H-1B Visa Demystified: A Step-by-Step Guide for US Employers

Employer H-1B training resources/live webinars:

• H-1B VISAS: STEP-BY-STEP FOR EMPLOYERS

• OPTIONS FOR US EMPLOYERS: RETAINING EMPLOYEES NOT SELECTED FOR H-1B FILING IN 2020

Leyla McMullen

Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM

NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation

The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.