Updated: May 5, 2020
USCIS has already notified selected employers for the 85,000 cases selected in the H-1B lottery last week. You have probably started working with your legal counsel on the next steps. With only 90 days to file the petition, it's a good idea to see what needs to be done to file a strong H-1B petition.
Job Title Review & Prevailing Wages confirmation
Review the job title before submitting the Labor Condition Application (LCA) to make sure that the job that you are applying for matches the job requirements. This is important so can get accurate prevailing wages from the Department of Labor's (DOL) website. For example, the job tile for an employee who is working to create and manage financial data for your company's SaaS platform should not be "Data Scientist" but a more closely related "Financial Data Analyst" or "Financial Analyst". This then helps you to understand the associated prevailing wages accurately using DOL's website since the estimated wage for a Data Scientist might be different from the wage of a Financial Analyst.
Note that prevailing wage only needs to go into effect when the employee switches to H-1B status. While the employee is working using OPT authorization, no changes are necessary.
Before the H-1B petition can be filed, the employer needs to file a Labor Condition Application (LCA). The usual processing time for the LCA is 7 working days. First time employers will need to verify their Federal Employer Identification Number (FEIN) with DOL before filing the LCA. This step is required for the DOL to process and recognize the employer in their database and can take 5 days or longer depending on the case load with Department of Labor. The first few weeks of April are high load weeks and therefore, it's recommended that the employers start the employer clearance process with DOL in March.
LCA Posting & Removal
Within one working day of filing the LCA employers must post a notice at the worksite stating that it has filed an LCA. The notice must be posted for ten (10) consecutive business days in two conspicuous locations (such as notice boards or within the vicinity of the water cooler) at the place of employment. Notice of the LCA filing must be given to employees in the same occupational classification, either by physical posting at the job site for 10 days, or by electronic means. If the notice is delivered to affected employees by e-mail, a one-time e-mail is fine. If it is delivered via an intranet or employer's home page, the notice must be posted for ten days.
WayLit makes it easier for employers to automatically post, remove and archive the LCAs. If your employees are working from home during COVID-19 w, the LCA cannot be posted at work locations for most of the employers. Therefore, automatic management of the LCAs could prove useful to your company. We are offering our platform free of charge to the affected employers. If you/your employer are interested in electronic management of the LCA, please contact us via email at email@example.com or call us at (314) 690-8763 and we'd have happy to setup an instance for your company.
Job Description Review
Job description is one of the most important aspects of the H-1B petition. It's a good idea to review the job description with the hiring manager to understand the job duties that the employee will perform on a day-to-day basis. The job description submitted to USCIS is different from the job description posted online when filling a position. The job description for the H-1B petition should very specific and should entail -
detailed list of duties that the employee will perform at the job
technical/specialized skills the job requires
Work with your immigration counsel if you have questions about job description and what you should and should not include.
After the LCA approval, the employer's attorney can file the H-1B petition for the employee. The processing times for the H-1B petition vary, if the employer does not file the petition with Premium Processing service. USCIS has suspended the Premium Processing service, because of COVID-19, for FY2021 indefinitely until further notice. Once the petition is filed and received, USCIS will send a receipt notice. The notice can be used to track the status of the petition using USCIS's Case Status system.
If there is anything that we can do to support you, your employer or your employee, feel free to reach out to us via email at firstname.lastname@example.org.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.