ImmigrationGirls Guide To The H 1B

ImmigrationGirl’s
GUIDE TO THE H-1B

7 Things to Know For Your First H-1B
immigrationgirl.com
Immigration Attorney and author of immigrationgirl.com
EMILY NEUMANN
INTRO
I am often asked about the H-1B visa category; who can get one,
how it works, what documents are needed, etc. Based on my law firm’s years of
experience in filing H-1B visa petitions, I am sharing what I think are the top
seven things you should know if you are contemplating working in the United
States pursuant to an H-1B visa.
ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 2

1. WHAT IS AN H-1B?
The Immigration and Nationality Act determines which classes

of people can be admitted into the country. These various visa
classifications can be found in INA 101(a)(15) subjections (A) through
(V). The H-1B got its name from 101(a)(15)(H)(i)(b) which says that a
person can be admitted into the United States if they are “coming
temporarily to the United States to perform services … in a specialty
occupation.”
The key words here are “temporarily” and “specialty

occupation.” The H-1B visa is a temporary visa also known as a
“nonimmigrant” visa. It is temporary because it can only be used for six
years (there are some exceptions) and is not intended to be used for
permanent jobs. Furthermore, not all jobs qualify for the H-1B visa
classification, only those that can be considered specialty occupations will
qualify (more on this later).

In order for an individual to obtain an H-1B visa, a U.S.
employer must sponsor the individual by filing a petition with the
United States Citizenship and Immigration Service (USCIS). The
petition is filed using Form I-129 Petition for a Nonimmigrant
Worker.
While the H-1B is the visa of choice for many foreign

workers in the United States, it has some major drawbacks, the
biggest being the limited number available each year. The current
annual cap on the H-1B category is 65,000. An advanced degree
exemption is provided for the first 20,000 petitions filed for an
individual who has obtained a U.S. master’s degree or higher. For the
last 10 years, the H-1B visas were used up before the next year’s
allotment became available. That means that there has been a
window every year for the last decade in which visas were
unavailable. Some years, the window of unavailability was small. In
recent years however, the window of unavailability is over 17
months. How is this possible?
On October 1st of every year, the U.S. government
makes available the 65,000 (plus 20,000 exemption) H-1B visas for
the upcoming “fiscal year.” The filing window begins on April 1st
of each year because the immigration rules allow an H-1B petition
to be filed up to six months prior to the start date of the visa, i.e.
April 1st is six months prior to October 1st, the date the visas
become available for the fiscal year.
In recent years, the entire allotment of visas has been

used up in the first five days of the filing window. Once the window
closes, an employer wanting to sponsor an H-1B worker cannot hire
that person until October 1st of the following year. Therefore, visas
remain unavailable for over 17 months (April 5th to the following
October 1st).

Here is some history on the numbers:
FY 2011 • Filing window open April 1, 2010 to January 26, 2011

• 300 days
FY 2012 • Filing window open April 1, 2011 to November 22, 2011

• 235 days
FY 2013 • Filing window open April 1, 2012 to June 11, 2012

• 71 days
FY 2014 • Filing window open April 1, 2013 to April 5, 2013

• 5 days
FY 2015 • Filing window open April 1, 2014 to April 5, 2014

• 5 days

In FY 2015, USCIS received 172,500 H-1B petitions, but
there were only 85,000 visas. So, how do they decide who receives a
visa? by lottery. All petitions filed on behalf of individuals with U.S.
Master’s degrees will go through a lottery to select the 20,000 for
the advanced degree exemption. Any Masters cases not selected will
then go into the regular quota. A second lottery will be done to
select the remaining 65,000. Therefore, Masters applicants generally
have a better chance since they get two shots at the lottery.
Based on current economic conditions and the state of

the U.S. immigration system, the lottery system is expected to
continue to remain in place. That means that if you are considering
applying for an H-1B visa in the upcoming fiscal year, you should be
close to finalizing your job offer in January. There is a huge rush in
February and March for employers and attorneys to prepare all the
petitions for filing on April 1st. The early bird gets the worm, at least
when it comes to ensuring that your petition is filed on time to
make it in the lottery. Employers starting the process in January are
able to complete the paperwork early and have it ready to go.
1. WHAT
2. WHAT IS AN
JOBS CAN H-1B? FOR
QUALIFY
AN H-1B?
As mentioned above, only jobs that are considered “specialty

occupations” can be the basis for obtaining an H-1B visa. INA 214(i)(1)
defines the term "specialty occupation" to mean an occupation that
requires:
attainment of a
bachelor's or higher
theoretical and practical degree in the specific
application of a body of specialty (or its
highly specialized equivalent) as a minimum
knowledge, AND for entry into the
occupation in the United
States

If a license is required to practice in the occupation, the
worker (commonly referred to as the beneficiary of the petition)
must demonstrate that he or she has full state licensure to practice
in the occupation at the time the petition is filed. The INA further
specifies that the worker must have completed the bachelor’s or
higher degree in the specific specialty, OR possess experience in the
specialty equivalent to the completion of such degree along with
recognition of expertise in the specialty through progressively
responsible positions relating to the specialty.
In other words, the job being offered to the individual

being sponsored for the visa must be one that normally requires at
least a bachelor’s degree in a specific field and the individual being
sponsored must possess that same degree or its equivalent.

How do you know if the job being offered normally
requires a degree? First, check the job posting for the job you are
applying for. If you found a job posting on
http://www.monster.com/, for example, it would normally indicate
the criteria for a person to be offered the job. If the job posting
states that the employer is looking for applicants with Associates
Degrees, then the job is not a specialty occupation. Even though
you may qualify for the job, the job may not qualify for the visa.
However, just because an employer indicates that a

bachelor’s degree is needed for the job, that alone does not mean it
qualifies as a specialty occupation. The degree requirement must be
normal for the occupation. In other words, you also need to check
whether other employers also require the same degree for similar
jobs. You can do this by searching for other job opportunities
online. You can also go to the source used by USCIS: the
Occupational Outlook Handbook (OOH) published by the United
States Department of Labor’s Bureau of Labor Statistics.

The OOH issues career information about hundreds of
occupations and is available online at: http://www.bls.gov/ooh/.
You can search the handbook for your job title and find out what
level of education is normally required for the position.
When you use this guide, understand that it uses very

generic occupation categories that may not match exactly with the
job title for the position you are being offered. You’ll need to find
the category that most closely matches your job offer. Also,
understand that USCIS does not look at job title alone. They will
also review the job duties for the offered position to see if they are
those that would typically require a degree. Once you find an entry
in the OOH that closely matches your job offer (both job title and
job duties), click the “How to Become One” tab. You should find a
short summary of the education normally needed for the job. For
example, the entry for Chemists states “A bachelor's degree in
chemistry or in a related field is needed for entry-level chemist
jobs.” This indicates that a Chemist would likely be considered to be
a specialty occupation which qualifies for the H-1B visa.
Now, check the entry for Chemical Technician and you
will find “[f]or most jobs, chemical technicians need an associate’s
degree in applied science or chemical technology or 2 years of
postsecondary education.” A Chemical Technician would probably
not be considered a specialty occupation (unless special
circumstances about the job exist, more on that later).
Also, be aware that just because a job requires a bachelor’s

degree, it may still not qualify. The INA clarifies that the required
degree must be in a specific field. So, a job that requires any kind
of bachelor’s degree won’t qualify for an H-1B. Furthermore, the
job must normally require a specific field of study. If multiple
fields of study would qualify an individual for the position, it may
not qualify. For example, check the OOH entry for Public Relations
Specialist: “Public relations specialists typically need a bachelor’s
degree in public relations, journalism, communications, English, or
business.” Based on this information, USCIS could potentially deny
an H-1B petition for a Public Relations Specialist on the grounds
that a degree in a specific specialty is not required.
The regulations implementing the INA provide additional
guidancefor determining whether a position qualifies as a specialty
occupation:
First, to determine if the degree required for the

sponsored position is common to the industry, USCIS will look at
parallel positions among similar organizations. Factors often
considered by USCIS when determining the industry standard
include: whether the OOH reports that the industry requires a
degree; whether the industry’s professional association has made a
degree a minimum entry requirement; whether letters or affidavits
from firms or individuals in the industry attest that such firms
routinely employ and recruit only degreed individuals; or copies of
job announcements from similar organizations.

Second, USCIS will consider whether the employer
normally requires a degree or its equivalent for the position. To
document that an employer normally requires a degree, it may be
necessary to provide copies of past and present job vacancy
announcements for the position indicating the degree requirement;
payroll records of other past or present employees in the same
position and education documents or resumes; and/or an
explanation of how the employer’s products or services are different
from others in the industry and why it requires a bachelor’s degree
with supporting documents such as business plans, presentations,
critical reviews, promotional materials, designs, blueprints, articles,
photographs, etc.

Third, USCIS will verify whether the nature of the
specific duties is so specialized and complex that knowledge
required to perform the duties is usually associated with the
attainment of a baccalaureate or higher degree. If the specialty
occupation determination is based on this criterion, the employer
must provide, in layman’s terms, a clear explanation of what
differentiates its position from other related positions, comparing
and contrasting the more specialized, demanding, complex,
advanced, or sophisticated duties of the position with normal
industry standards. If the employer feels that it has a unique
business model which necessitates the degree requirement, they
must explain what separates their business operations from others in
the industry, clarify what it is about their business that is so
specialized, distinctive, or exceptional, and provide documentary
evidence to back up the claims.

3. WHAT QUALIFICATIONS MUST I
POSSESS TO OBTAIN AN H-1B?
Just as the job being offered must normally require a degree in

a specific specialty, you must possess the degree in that specialty in order
to qualify for the visa. For example, if a Software Engineer typically
needs a bachelor’s degree in computer science, an individual holding a
bachelor’s degree in business may not be considered qualified.
But remember, the INA provides that an individual who may

not hold the required degree may still qualify for the visa if he or she
possesses experience in the specialty equivalent to the completion of
such degree AND recognition of expertise in the specialty through
progressively responsible positions relating to the specialty. Therefore, in
my example above, if the individual holding a bachelor’s degree in
business also possesses years of experience in the field of computer
science in progressively responsible positions, he may be considered to
have the equivalent of a bachelor’s degree in computer science to qualify
for the specialty occupation of Software Engineer.
USCIS follows a 3:1 formula in evaluating experience in lieu of
education. In other words, three years of specialized training and/or work
experience must be demonstrated for each year of college-level training
the individual lacks. The regulations further specify that it must be clearly
demonstrated that the individual’s training and/or work experience
included the theoretical and practical application of specialized knowledge
required by the specialty occupation; that the individual’s experience was
gained while working with peers, supervisors, or subordinates who have a
degree or its equivalent in the specialty occupation; and that the individual
has recognition of expertise in the specialty evidenced by at least one type
of documentation such as:
Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;
Membership in a recognized foreign or United States association or society in the specialty occupation;
Published material by or about the alien in professional publications, trade journals, books, or major newspapers;
Licensure or registration to practice the specialty occupation in a foreign country; OR
Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

This means that any evaluation claiming that your
education combined with experience qualifies you for the position
must be submitted with the supporting documents used by the
evaluator to reach its conclusions. This typically is done through
letters from previous employers documenting the required years of
experience. However, simply possessing the required years of
experience is not enough. The experience must be in progressively
responsible positions which confirm that you are recognized for
expertise in the specialty. Therefore, any letters from previous
employers should fully detail the positions held, job duties, and
specific expertise of the individual.
Also note that your degree, if not from a United States

school, must be considered the equivalent of a degree from a
United States school. Therefore, if your bachelor’s degree is from a
school outside the U.S., you will need to obtain an education
evaluation confirming that it is equivalent to a U.S. degree.

Equivalence to a United States baccalaureate or higher
degree means “achievement of a level of knowledge, competence,
and practice in the specialty occupation that has been determined to
be equal to that of an individual who has a baccalaureate or higher
degree in the specialty.” The equivalency must generally be
determined by:
an evaluation of education
by a reliable credentials
an evaluation from an official evaluation service which
who has authority to grant specializes in evaluating
college-level credit for training foreign educational
and/or experience in the specialty credentials
at an accredited college or
university which has a program
for granting such credit based on
an individual's training and/or
work experience; OR

If the evaluation is from an official with authority to
grant college-level credit, proof of this authority must be included,
typically a letter from the college the official works for. If the
evaluator does not have authority to grant college-level credit, then
be sure it is a reliable evaluation service specializing in foreign
credentials. The evaluation service should refer to the Electronic
Database for Global Education (the EDGE Project) of the
American Association of Collegiate Registrars and Admissions
Officers (AACRAO) as this will be utilized by USCIS in adjudicating
the petition.

WHAT
4. WHATQUALIFICATIONS MUST
QUALIFICATIONS MUST MY I
POSSESS TOEMPLOYER
SPONSORING OBTAIN AN H-1B?
POSSESS?
Technically none, other than that the entity filing the H-1B
petition must be a “U.S. employer.” The term “U.S. employer” is actually
defined by the immigration regulations and means “a person, firm,
corporation, contractor, or other association, or organization in the
United States which:
Engages a person to work within the United States;
Has an employer-employee relationship (i.e. it has the

right to hire, pay, fire, supervise, or otherwise control
the work of the individual being sponsored); AND
Has an Internal Revenue Service Tax identification

number

The second point is key and is extremely important if you
will be in a “third-party placement” situation. Third-party placement
arises any time the individual being sponsored will work at a
location that is not operated by the sponsoring employer. This
usually arises in industries such as consulting or staffing. The third-
party is commonly referred to as an “end client,” especially in the
Information Technology industry, and USCIS will usually look for
some kind of documentation from the end client to verify the
existence of an employer-employee relationship. An entire book
could probably be written about third-party placement and end
client issues alone. If you are seeking an H-1B visa in order to work
for an employer in the consulting field, just be aware that there are
many potential pitfalls if the H-1B petition is not handled properly.
A company filing an H-1B petition involving third-party placement
may not be considered a United States employer and thus end up
with a denial if the requisite control over the H-1B worker cannot
be established.

As stated initially, other than being a U.S. employer, there
really are no specific qualifications that an employer must meet in
order to obtain an H-1B visa for an individual. However, not all
employers are created equal, and there are some that may be more
advantageous than others. Here are some things you should
consider when evaluating a potential employer sponsor:
If you already work for the employer - such as

through Optional Practical Training (OPT) or L-1
Do you
Have there know other
Have they
been any employees Are they
sponsored
instances in Do they who have familiar with
any H-1B
How has which you seem to keep been the H-1B
How do they workers for
your were not good records successful in requirements
treat permanent
experience paid or paid (I-9 forms, obtaining an or do they
employees? residence
been so far? less than payroll, taxes, H-1B visa have an
(i.e. the
what you etc.)? (both attorney who
green card)
were petition is?
before?
expecting? approval and
visa stamp)?

If you don’t have any personal experience with the
potential employer, try to find out:
How many employees Where is the office How long has the
work for the located and how big is company been in
company? it? business?
Do you know anyone

Is there any negative Do they sponsor
who has been
information about the anyone for permanent
successful in obtaining
company online? residence?
an H-1B visa before?
Are they familiar with

the H-1B requirements
or do they have an
attorney who is?

Other questions you should ask:
Is there any Do you

penalty if I share copies
What is the Do you have
Will I be leave the of the Do I have to
salary I’ll be any policy
getting a company application, pay for any
earning and regarding
written within a receipt part of the
how is it green card
offer? certain notice, process?
paid? sponsorship?
period of approval
time? notice, etc.?
Who will I
What Do I have to
report to and
position will sign a
what is their Do you offer benefits, such as health
I be contract or position insurance, retirement, paid vacation, etc.?
sponsored employment
within the
for? agreement?
company?

While any U.S. employer can potentially file an H-1B
petition, there are some red flags that you should look out for to
avoid ending up with a denied petition. Most importantly, use
common sense in evaluating any job offer. Does it sound too good
to be true? The company should have a real job available for you at
the time of filing (beware of an employer who says they will file
now but will find a job for you later, that is speculative and is not
allowed). The job should be in line with the company’s business (for
example, a gas station and convenience store probably doesn’t need
a full time accountant to work in-house). The company should not
be asking you to pay for the process (the regulations specifically
prohibit this). The company should have an actual office space (not
a home-based business or virtual office). While start-up companies
are not prohibited from filing an H-1B petition, they should be
prepared to provide strong documentation that they can support a
full-time professional and have sufficient work for the next three
years.

Small companies (those with less than 10 employees) can
also file H-1B petitions, but they should be prepared to document
that they have sufficient staff to handle the business operations so
that the H-1B worker will only handle specialty-occupation work.
Smaller companies also need to be prepared to document that they
need the full-time services of a professional and have sufficient
work (for example, a company with only 3 employees probably
doesn’t need a full time HR Manager or Marketing Manager). It is
extremely helpful if the company agrees to share information about
the progress of your case, copies of documents, and allows you to
have access to the attorney. They are not required to do so, but it
will certainly ease your mind if you know what is going on,
especially in the lottery and if there is any Request for Evidence
(RFE) issued on your case.

5. WHAT DOCUMENTS ARE REQUIRED
IN THE H-1B PETITION FILING?
While some documentation will depend on the specifics

of the case, there are some basic documents that must be submitted
with every H-1B petition. First, Form I-129 is the form used to
apply for the H-1B classification. This form is used for multiple visa
types, so not all parts are applicable to the H-1B. If filing in
premium processing, an I-907 form is also needed. Finally, a
certified Labor Condition Application (often referred to as an LCA)
ETA Form 9035 must be included. These forms make up the basic
H-1B petition. Supporting documents are also required to establish
eligibility for the H-1B classification. This normally would include a
letter of support from the employer sponsor describing the
background of the company, the job being offered, the minimum
education required for the job, and how the sponsored worker
qualifies.

Note that there are two parts to an H-1B petition: 1) the
petition itself, which asks the immigration service to determine
whether the position being sponsored qualifies for the visa and
whether the applicant qualifies for the position; and 2) the status of
the applicant, which asks the immigration service to either change
the status of the applicant from some other visa type to an H-1B
visa holder or approve the petition for consular processing. The
documents needed for part 1 will be basically the same for all
applicants as detailed above, but the documents needed for part 2
will vary depending upon which visa type you currently hold or if
you are outside the country. Below you will find a list of documents
needed for each type of applicant. Note that all documents require
copies only, originals are not necessary.

If you are Degree certificates and transcripts
outside the
U.S. or
filing for
consular Education Evaluation if your degree is
processing not from a U.S. school
you will
need: Experience letters from previous
employers, if available
Resume
Passport

Degree certificates and transcripts transcripts (Note: if U.S. degree
If certificate won’t be issued by April 1st but all degree requirements have
been met, you can get a letter from the registrar instead)
you Experience letters from previous employers, if available
are
on Resume
OPT Passport
you
will Visa stamp, I-94, I-20s, OPT card(s)
need: Last three pay statements, if you are working in a paid position

Degree certificates and transcripts transcripts (Note: if U.S. degree
If certificate won’t be issued by April 1st but all degree requirements
have been met, you can get a letter from the registrar instead)
you
are in Experience letters from previous employers, if available
F-1
status Resume
you
will Passport
need:
Visa stamp, I-94, I-20s,

Degree certificates and transcripts transcripts
If
you Education Evaluation if your degree is not from a U.S. school
L-1 Resume
status
you Passport
will Visa stamp, I-94
need: Dates in and out of the country to determine amount of time

available in H-1B status
Last three pay statements

If
you Education Evaluation if your degree is not from a U.S. school

L-2 Resume
status
you Passport
will Visa stamp, I-94
need: EAD card, if any
Spouse’s last three pay statements

If
you Education Evaluation if your degree is not from a U.S.
school
H-4
status Resume
you Passport
will
need: Visa stamp, I-94

If
school
TN
status Resume
you Passport
will
need: Visa stamp (if applicable), I-94
Last three pay statements

If
school
TD
status Resume
you Passport
will
need: Visa stamp (if applicable), I-94

6. WHAT RULES PROTECT ME FROM
UNSCRUPULOUS EMPLOYERS?
H-1B workers are granted a number of rights, which are

protected by the U.S. Department of Labor. The Immigration and
Nationality Act sets forth certain prerequisites for employers
wishing to employ H-1B workers. To obtain an H-1B approval, an
employer must file a Labor Condition Application (LCA) in which
the employer must confirm that, for the entire period of authorized
employment, the required wage rate will be paid to the H-1B worker
being sponsored. Within the regulations, there are many provisions
which detail an employer’s obligations regarding payment of wages
to H-1B workers.

First, the regulations determine the amount of wages that
must be paid. The wage shall be the greater of the actual wage rate or
the prevailing wage. Note that the employer is required to provide you
with a copy of the certified LCA (Form ETA 9035) which includes both
the prevailing wage and the wage offered in the H-1B petition. The
required wage must be paid to you, cash in hand, free and clear, when
due, except that allowable deductions may reduce the cash wage below
the level of the required wage. “Cash wages paid” means that they must
be shown in the employer's payroll records as earnings for the employee,
and disbursed to the employee, they must be reported to the Internal
Revenue Service (IRS) as the employee's earnings, and any taxes owed to
the IRS, State, or local governments must be paid by the employer.
Future bonuses and similar compensation (i.e., unpaid but to-be-paid)
may be credited toward satisfaction of the required wage obligation if
their payment is assured (i.e., they are not conditional or contingent on
some event such as the employer's annual profits). Once the bonuses or
similar compensation are paid to the employee, they must be recorded
and reported as “earnings” with appropriate taxes and FICA
contributions withheld and paid.

Second, the regulations set forth when the wages must be
paid. An H-1B worker must receive the required pay beginning on the
date when the nonimmigrant “enters into employment” with the
employer. You are considered to “enter into employment” when you
first make yourself available for work or otherwise come under the
control of the employer, such as by waiting for an assignment, reporting
for orientation or training, going to an interview or meeting with a
customer, or studying for a licensing examination, and includes all
activities thereafter. However, even if you have not yet “entered into
employment” with the employer, the employer that has had an LCA
certified and an H-1B petition approved must pay you the required wage
beginning either:
30 days after the if you are present in the United States on the date of the
date you enter the approval of the petition, beginning 60 days after the date you
U.S. in H-1B status, become eligible to work for the employer (usually the starting
or validity date of the H-1B approval).
Note that even if you are not performing work and are in a
nonproductive status due to a decision by the employer (e.g., because of
lack of assigned work), the employer is still required to pay you the full
amount due.

Third, the regulations are strict regarding any deductions that
an employer may make from an H-1B worker’s wages. Other than
deductions for income tax withholding, FICA, Social Security, Medicare
or deductions for insurance premiums, retirement plans, and the like,
any deduction made from your wages must meet all of the following 5
criteria:
You must give a voluntary, written authorization;
The purpose of the deduction must be primarily for your benefit;
The deduction cannot be an attempt to recoup the employer's business expense (e.g.,
tools and equipment; transportation costs; living expenses; attorney fees and other
costs connected to the performance of H-1B program (e.g., preparation and filing
of LCA and H-1B petition);
The amount of the deduction cannot exceed the fair market value or the actual cost
(whichever is lower) of the matter covered; and
The deduction cannot exceed 25 % of your disposable earnings for a workweek.

The regulations specifically state that an employer is not
permitted to require (directly or indirectly) that you pay a penalty for
ceasing employment with the employer prior to an agreed date.
Therefore, an employer cannot make any deduction from or reduction
in the payment of the required wage to collect such a penalty.
Furthermore, an employer may not receive, and you may not pay, any
part of the $750 or $1500 additional filing fee (ACWIA fee), whether
directly or indirectly, voluntarily or involuntarily. Thus, no deduction
from or reduction in wages for purposes of a rebate of any part of this
fee is permitted. If the filing fee is paid by a third party and you are
asked to reimburse all or part of the fee to the third party, the employer
will be in violation of this prohibition. Any unauthorized deduction
taken from wages is considered by the Department of Labor to be non-
payment of that amount of wages, and in the event of an investigation,
will result in back wage assessment (plus civil money penalties and/or
disqualification from H-1B and other immigration programs, if willful).

Fourth, the regulations govern employee benefits for H-1B
workers. Benefits, such as cash bonuses; stock options; paid vacations
and holidays; health, life, disability and other insurance plans; retirement
and savings plans, must be offered to you on the same basis, and in
accordance with the same criteria, as the employer offers to U.S.
workers. Note that if an employer does not provide benefits to U.S.
workers, there is no requirement for the employer to provide benefits to
the H-1B worker. The rule is in place to ensure that U.S. workers and H-
1B workers are on equal footing and provided the same benefits.

Fifth, the regulations require the employer to provide the
employee with payment for transportation home under certain
circumstances. The employer will be liable for the reasonable costs of
your return transportation to your last place of foreign residence if you
are dismissed from employment by the employer before the end of
your H-1B validity period. Note that this requirement does not apply if
you voluntarily terminate your employment prior to the expiration of
the validity of the petition. Also, be aware that three steps must be taken
by the employer in the event of a termination:
notify you of notify the provide you

1
3
the termination; immigration with payment
service that the for
employment transportation
relationship has home, if
been terminated required.
so that the
petition is
canceled; and

If any of the above provisions are violated by an employer,
there is a procedure for filing a complaint with the Wage and Hour
Division within the Department of Labor. A WH-4 form can be filled
out to report violations at:
http://www.dol.gov/whd/forms/fts_wh4.htm.
Also, if the employer has not complied with the provision regarding
return transportation costs, the H-1B worker should advise the Service
Center which approved the H-1B petition in writing.

7. WHAT SHOULD I EXPECT FROM AN
ATTORNEY FILING MY H-1B
PETITION?
Generally speaking, the employer is the actual client in the

preparation of the H-1B petition and the individual being sponsored has a
more limited role in the process. There are many situations in which you will
have little to no interaction with the attorney. In other situations, with the
employer’s permission, the attorney may work directly with you to make for
a smoother process. Either way, access to the attorney is usually a decision
made by the employer.
The attorney’s role is to use his or her best efforts and

understanding of immigration law to help both you and the employer
achieve their goals. As part of his or her best efforts, an attorney should
provide zealous and diligent representation within the ethical boundaries of
the legal profession. This includes timely communication with the employer
or possibly the sponsored individual as discussed above. An attorney cannot
guarantee results, government processing times, or that the law will remain
unchanged during the process.

In the course of the representation, the attorney will build a file
of documents on the employer’s behalf. In addition, the attorney will send
information, correspondence, and copies of documents to the employer.
The document file, although kept by the attorney, is the employer’s
property and usually cannot be shared with the individual being sponsored
without the employer’s authorization.
Your case may involve the work effort of several firm attorneys
and/or supervised paralegals and/or law clerks. While an attorney is
ultimately responsible for the legal matter, your primary contact with the
attorney’s office will often be a paralegal or legal assistant. In addition, you
may be contacted by multiple assistants throughout the filing process.
Mutual communication is important in the successful

completion of any legal matter. Therefore, you should be prepared to
promptly respond to all communications from the attorney and the
attorney should do likewise. The attorney should also advise the employer
or possibly the sponsored individual about possible problems that may
arise in the case.

If you are searching for an attorney to prepare and file an H-
1B petition on behalf of your employer sponsor, here are some things
you should consider:
Does the attorney practice in other areas of law besides

immigration? Any licensed attorney may represent you in your
immigration case. However, immigration law is very complicated and
changes frequently. Therefore, if someone practices immigration law
infrequently, he or she may not be the best person to represent you.
(Remember: A general physician may be a good doctor, but you
wouldn’t go to one for brain surgery!)
Is the attorney a member of the American Immigration Lawyers

Association (AILA)? AILA is the national association of more than
13,000 attorneys and law professors who practice and teach immigration
law. An attorney does not have to be a member of AILA to practice
immigration law. However, AILA helps its members keep track of best
practices and frequent changes in the law, all of which contribute to the
success of your case.

How long has the lawyer been practicing immigration law? New
immigration attorneys can certainly do a good job, but it is incredibly
useful to hire an experienced attorney.
Has the attorney handled many cases that were similar to yours?
What were the results? Feel free to ask about the attorney's track
record, such as the number of cases filed or approved, for example.
How will the attorney let you know what's happening with your
case? Communication is key when working with a lawyer. Ask the
lawyer how often and under what circumstances you will hear from him
or her.
Do you trust the attorney? Trust is the most important part of an

attorney-client relationship. If you do not trust the attorney, do not hire
him or her. If friends or family members have worked with the attorney
before, talk to them about their experience.

Before you take the plunge and file your H-1B, don’t forget to
ask about the chances of success. It is heartbreaking to see cases that
made it through the lottery only to be denied months later. Your lawyer
should lay out your options regarding the case and not necessarily
guarantee a certain outcome. Ask your lawyer to identify for you the
strengths and weaknesses of your case and to explain the pros and cons
of pursuing each of the options he or she says you have. Although a
lawyer should never guarantee a specific outcome, you should ask your
lawyer about your chances of approval. The answer to this question
may determine how you proceed. If your case is weak or has other
difficult legal issues you need to know about them up front. You always
want your lawyer to be truthful and honest with you concerning his or
her assessment of the case.

ABOUT THE AUTHOR
Emily Neumann is a conscientious and dedicated immigration

attorney dealing with employment-based cases in both nonimmigrant
and immigrant areas. She spends much of her time conducting research
on the constantly changing maze of immigration laws and uses this
information to execute immigration applications with precision. She can
accurately assess a situation quickly and works with intense
concentration to get the minute details right. Emily's blog,
immigrationgirl.com, provides useful information from the desk of an
immigration attorney. She earns respect from her clients for her ability
to listen, and she adds value through better execution. Emily is a partner
in Reddy & Neumann, P.C. in Houston, TX. In addition to her blog, she
shares updates on Twitter (@immigrationgirl) and her Facebook page to
help her clients stay informed of the latest news.
The information in these pages is not to be construed as legal advice for your specific situation. For specific advice on your
situation, please contact an attorney. This information should not be construed as legal advice and does not constitute an
engagement with Emily Neumann or establish an attorney-client relationship.

EMILY NEUMANN
Immigration Attorney and author of immigrationgirl.com
immigrationgirl.com
The information in these pages is not to be construed as legal advice for your specific situation. For specific advice on your
situation, please contact an attorney. This information should not be construed as legal advice and does not constitute an
engagement with Emily Neumann or establish an attorney-client relationship.

ImmigrationGirls Guide To The H 1B

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ImmigrationGirls Guide To The H 1B

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ImmigrationGirl’s

GUIDE TO THE H-1B

Immigration Attorney and author of immigrationgirl.com

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 2

The Immigration and Nationality Act determines which classes

The key words here are “temporarily” and “specialty

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 3

While the H-1B is the visa of choice for many foreign

In recent years, the entire allotment of visas has been

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 5

FY 2011 • Filing window open April 1, 2010 to January 26, 2011

FY 2012 • Filing window open April 1, 2011 to November 22, 2011

FY 2013 • Filing window open April 1, 2012 to June 11, 2012

FY 2014 • Filing window open April 1, 2013 to April 5, 2013

FY 2015 • Filing window open April 1, 2014 to April 5, 2014

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 6

Based on current economic conditions and the state of

As mentioned above, only jobs that are considered “specialty

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 8

In other words, the job being offered to the individual

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 9

However, just because an employer indicates that a

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 10

When you use this guide, understand that it uses very

Also, be aware that just because a job requires a bachelor’s

First, to determine if the degree required for the

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 13

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 14

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 15

Just as the job being offered must normally require a degree in

But remember, the INA provides that an individual who may

Licensure or registration to practice the specialty occupation in a foreign country; OR

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 17

Also note that your degree, if not from a United States

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 18

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 19

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 20

Engages a person to work within the United States;

Has an employer-employee relationship (i.e. it has the

Has an Internal Revenue Service Tax identification

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 21

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 22

If you already work for the employer - such as

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 23

Do you know anyone

Are they familiar with

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 24

Is there any Do you

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 25

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 26

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 27

While some documentation will depend on the specifics

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 28

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 29

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 30

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 31

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 32

are in Experience letters from previous employers, if available

will Visa stamp, I-94

need: Dates in and out of the country to determine amount of time

ImmigrationGirl's GUIDE TO THE H-1B EMILY NEUMANN 33

are in Experience letters from previous employers, if available

will Visa stamp, I-94