Do I need a lawyer to file H-1B status for a new employee?
This is a common question for employers. If you are hiring a foreign national as a new employee, do you really need to hire a lawyer to complete the paperwork? The answer is yes. You should hire experienced employment-based/business immigration counsel.
The H-1B preparation process is nuanced and complex, and there are numerous reasons your case can be denied by the U.S. Citizenship and Immigration Services (USCIS). In an H-1B cap-subject case, making one mistake in the H-1B registration process can cause a case not to be entered in the highly competitive H-1B lottery, with devastating effects for the H-1B candidate and the company. In an H-1B transfer case, making a mistake can mean your company is not able to hire the H-1B worker on a critical desired start date.
Similar to tax law issues, you want to work with someone who understands all the complexities of the immigration process and is an expert in this field. For these reasons, we always recommend working with experienced counsel for an H-1B case.
Click here to view our helpful overview of the H-1B filing process.
Here are three benefits of working with an experienced business immigration lawyer:
They know what details have to be vetted before you can even submit a filing. An experienced lawyer will evaluate the case by asking questions as follows:
What are the minimum requirements for this occupation?
Does the offered position qualify as an H-1B specialty occupation?
Does the candidate meet the minimum education and work experience requirements for the position?
What is the offered salary?
Does the offered salary meet the higher of prevailing wage for the occupation or the actual wage being paid to similar employees?
Does the employer understand the significance of the Public Access File (PAF), what documents go into the PAF, and how long it needs to be maintained?
They understand how to prepare and file the required documentation. It’s much more than “just forms.” It’s very specific forms that need to be completed in the correct manner, a prerequired Labor Condition Application (LCA) that needs to be submitted to and certified by the Department of Labor (DOL), PAF documents and guidance to the employer on how to create and properly maintain a PAF under law, a detailed letter in support that sets forth how the case qualifies under applicable law for H-1B status, and all required supporting documents that need to be included in an H-1B filing to USCIS. There are best practices for each step, and experienced business immigration counsel will be able to make sure everything is completed correctly.
They stay updated on the latest policies and procedures at USCIS that can affect H-1B practice. Immigration law is complex and constantly changing. Relevant sources of law and procedure are found in statutes, regulations, USCIS memorandums, the Adjudicator’s Field Manual (AFM), form instructions, the USCIS website, DOL FAQs, just to name a few.
Even seasoned lawyers can make mistakes if they are not up-to-date on new regulations, procedures at USCIS, and relevant government deadlines. The H-1B filing process is fraught with seemingly countless opportunities to make mistakes. We highly recommend partnering with an experienced business immigration law firm to prepare and file your H-1B case.
For more information about ImLaw, the H-1B process, and how we can help your business, contact us.