How to Avoid Most Common H-1B Filing Errors?

Who is Eligible For H-1B Visa?

• This preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business
• Qualified positions include specialty occupations, related to healthcare, biochemistry, physics, data communications, and other niche fields such as nuclear physics

How to Avoid Most Common H-1B Filing Errors?

If you are eligible for H-1B Visa, you want to make sure you don’t end up making filling errors and get a denial

Most Common Filing Errors are Listed Below:

1. Choosing an Incorrect I-129 Start Date

   • Avoid choosing an incorrect start date on the I-129
   • Check with your attorney to ensure that all dates, wages, and important details are accurate

2. Incomplete Job Description

   • Ensure that your job description meets all the necessary criteria
   • Work with your attorney and employer to ensure all the boxes are checked for your job description

3. Missing the Filing Deadline

   • Submitting your petition after the date that was issued to you by the USCIS can result in a delay in processing
   • Please file your petition with plenty of time to spare
   • Please note USCIS service center only considers a submission as timely if it reaches the center before the expected date
   • Your petition will first reach a P.O. box, be sure to submit it well before the last day
   • Leave some time buffer so that the service center will have time to collect it

4. Labor Condition Application (LCA) Delays

   • Pre-verification needs to be completed before the LCA is submitted
   • If pre-verifications is not completed iCert visa portal system doesn’t always recognize the employer/company’s Federal Employer Identification Number or FEIN

5. Unacceptable Delivery Method(s)

   • Adjudicating service centers are very specific about the way that petitions are submitted refrain from delivering your petition by hand or through some other unconventional method
   • It can result in not having your petition processed, as there will not be anyone to physically receive it
   • To ensure that you are using an approved delivery method, send your petition via the United States Postal Service, FedEx, UPS, or some other bonded delivery service

6. Pick the Right(service center assigned to you) Service Center

   • Your petition could be denied if you sent it to the wrong service center
   • You can find the list here

7. Trying to File a petition for Yourself, While Being the Founder or Co-founder of the Company

   • USCIS will not accept you as an employer and employee at the same time
   • If your company’s structure allows for a board of directors to pay you instead of you paying yourself, you may be able to secure an H-1B visa as a business owner

8. When your Petitioner is Small Business

   • The LCA has a specific range for the employee can be paid
   • If the small business does not have the capital to fulfill these requirements and pay the petition filing fees, you will not be able to file H-1B

Can I Start My Own Business and File H-1B for it?

It is possible, however, for you to start a business on an H-1B visa. You must establish an entity—such as a board of directors or a CEO—who controls your salary, your tasks, and your employment status. The entity must petition on your behalf. You cannot self-petition on an H-1B visa

What Happens If My Petition Is Still Denied?

There are two types of refusals:

• Rejection
• Denial

It is based on a two-pronged approval process that each H-1B petition goes through

The first prong involves having an immigration officer look over your case to determine whether:

• All of your information is complete, consistent, and accurate
• You have provided enough evidence and documentation
• Your employer has paid the appropriate fees to the appropriate place

If your petition does not pass this phase, then it will likely be rejected without a refund

Fortunately, the answer to this issue is often to simply re-file with the help of an experienced H-1B attorney

However, if your petition passes this phase, it will go on to phase two

In phase two the officer will determine

Your Evidence

Background

Occupation,

Qualifications meet the H-1B visa requirements for 2021

If not, then you may experience an H-1B denial

Please note: In this case, re-filling may not be a solution

Legal Motions

It is also possible for petitioners to file legal motions for an unfavorable outcome

Two main motions can be made here:

1. Motion to reconsider:
   • This is applicable if you and your attorney believe that the immigration officer evaluating your case erroneously denied your H-1B petition
2. Motion to reopen:

• This is done when you have acquired new evidence or documentation that would support your case if evaluated along with the principle evidence

Appeals

• In contrast to the legal motions, which work with the evaluating officer, an appeal goes through the third party for an unfavorable decision, the Administrative Appeals Office
• Unfortunately, the USCIS will usually send you a denial notice that includes a line prohibiting any appeals

When Do I Need Amendments?

• H-1B amendment is required for situations in which a material change occurs
• A material change means that your job duties or your job location have changed significantly
• If you have gotten a promotion on your H-1B, you may or may not need to have an amendment filed
• It all depends on whether or not your job duties have changed
• Make sure that your new position meets the same H-1B requirements as the old one and is related to your degree

 

Consider optimizing your chances of approval provided that your petition is selected in the lottery

Schedule a consultation, today.

You can also fill out this contact form and schedule your consultation with one of our attorneys, or  Schedule a Consultation at 469-994-9407