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H1B Attorney Advice Bits For Employer and Employee

January 14, 2009

Recapturing H-1B time

The burden of proof is on the employee to prove that time is eligible to recapture. It is crucial to keep accurate records of all entry and exit dates into and from the United States. If passport stamps are not readable or only partly readable, all dates should be separately notated and recorded. USCIS will not make these calculations when it adjudicates the petition unless instructed to do so. If you are unsure about how to do this call us at any of our offices in Columbus, Ohio, Cleveland, Ohio, Southfield Michigan, or Washington, DC.

File Labor Certification as soon as possible

The worst scenario occurs when an employee on H-1B status nears the end of the allowable six years without any legal means of attaining an extension. Extensions beyond the statutory six year linit are all based on having a filed or approved labor certification or I-140, so it is important to begin this process as soon as possible. Six years may seem more than an adequate period of time, but any number of complications could arise that delay filing.

In addition to starting the process, it is important to follow through requests for documentation such as experience letters. Documents such as these can be time consuming to procure so promptness and follow through are important
Maintaining LCA Files

The LCA is an attestation by the employer. In other words, by signing the document, the employer makes certain promises and states certain facts that it swears to be true. The prevailing wage that the LCA documents pertains to the geographical area where the employee works, so it is crucial to update the LCA if the employee is moved to a new worksite. Such movement is common in the way many H-1B employers do their business, and many employers have multiple employees in different locations. Regular communication with the immigration attorney is essential so that the attorney will be kept up to date on worksite changes that will require a new LCA and an update of the public inspection file. If an employer is H-1B dependent, these requirements become even more complex and an attorney’s advice is necessary for the meticulous record keeping necessary to avoid penalties if audited.

Do Not File H-1B Petitions Pro Se or “On the Cheap”

Companies today face a challenging economy and must cut costs wherever possible. However, the phrase “you get what you pay for” applies with particular force to companies who must file H-1B petitions. It may be tempting to file petitions without immigration counsel, but the long term results are usually disastrous. Such petitions are often scrutinized very intently and the employer may then face a Request for Evidence (“RFE”) without any idea how to respond. Many employers approach our firm in a state of emergency, with denied H-1Bs that must be re-filed or appealed, RFEs for botched petitions, or audits triggered by actions of uninformed companies who attempt to certify their own LCAs. The amount of money that companies spend in attorney fees, filing fees, or penalties when the situation deteriorates to this point greatly outweigh any short-sited financial “savings” from filing a petition without counsel.

The same argument may be made for hiring attorneys with no immigration experience who offer to prepare an H-1B petition at a discounted rate. Often, all the employer is purchasing is an attorney’s signature and must seek new counsel when problems arise that the original attorney is incapable of solving.

You Must Prove Your Case

Employees must be honest regarding the experience and academic qualifications they possess. Resumes must be as accurate as possible, because even a simple embellishment may cause problems down the road. Similarly, it is important to provide as much detail regarding job responsibilities as possible. Too often employers want to hire a worker in a specialty occupation without providing enough evidence to show that the position actually qualifies as such. USCIS shows hostility towards certain occupations when an employer asserts that it is a specialty occupation, so detailed evidence becomes crucial to securing an approved petition. Often it is not enough to say that the position is a specialty occupation. USCIS measures job requirements mechanically against those described in the Department of Labor’s Occupational Outlook Handbook, even though real world practices may differ. Attorneys exist to help with these difficulties, but can only work with the evidence and information that employers supply.

The lawyers at Shihab & Associates, Co., LPA are experienced in handling all aspects of H-1B visa processing and transfers. Call for an initial consultation.

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