Dear Sophie: What’s the recipe for an H-1B?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

I want to sponsor a potential employee for an H-1B but the process for an H-1B petition seems pretty complex.

What goes into an H-1B petition? How has it changed in recent weeks? Is the lottery going to be wage-based or random?

— Hungry to Learn in Hillsborough

Dear Hungry:

This is a great time to get started on the H-1B lottery process — the time is fast approaching. In my most recent podcast episode about H-1Bs on Immigration Law for Tech Startups, we covered planning for the H-1B lottery.

For all those foodies out there, in this column, I include a recipe for making your very first H-1B, plus the latest on lottery timing, whether the lottery will be wage-based and pay-to-play, the end of Buy American, Hire American, and changes in how H-1B wage levels are calculated.

New to the H-1B?

To get started, if you’re a newbie looking to whet your appetite with what’s involved in the H-1B process, there’s no need for the H-1B lottery season to feel complex or daunting. In fact, I wrote out a recipe so you can easily understand how to cook up an H-1B petition. ;)

Alcorn H-1B Petition Recipe

Ingredients

• 1 hungry employer seeking top global talent
• > 1 motivated job seeker(s) from around the world
• > 1 experienced business immigration attorney
• > 1 compassionate business immigration paralegal
• 1 package clear communication
• 1 gallon legal strategy; add more to taste
• 1 gallon hard work, divided
• 4 cups enthusiasm and dedication
• 2 questionnaires
• 1 Labor Condition Application (LCA)
• 4 forms for USCIS, 5 if you want to broil the case and eat sooner
• 1 robust letter of support from the company
• To taste: Job seekers’ supporting documents, as needed
• For startup flavor: sprinkling of company formation documents

Directions

1. It’s important to start off the H-1B with a solid legal strategy. Start by combining the employer and job seeker with at least one business immigration attorney and at least one business immigration paralegal. Add communication, half gallon of legal strategy and 1 cup of enthusiasm and dedication.
2. After the legal strategy has been prepped, separate the rest of the ingredients into separate containers (there will be some overlap).
3. Take the two questionnaires and distribute evenly between the employer and job seeker. Add to pan over medium-low heat or high heat depending on how soon everyone wants to eat.
4. Once the questionnaires are evenly browned, remove from heat and examine to make sure everything is cooked properly.
5. Once the questionnaires are reviewed, use some of the flavors to prepare the Labor Condition Application (LCA). Add in 1 cup of legal strategy and 1 quart of hard work. Let simmer for 7-10 days.
6. While the LCA is simmering, prep your forms one at a time. Add ½ cup of legal strategy and 2 cups of hard work.
7. After the forms are prepped, use the remaining legal strategy (more if necessary), 2 quarts of hard work, and 1 cup of enthusiasm and dedication to prepare the letter of support.
8. Once that’s ready, and the LCA is fully cooked, use ½ quart of hard work to add the glazed forms, LCA and letter of support into a bowl (preferably Adobe Acrobat). After adding the letter of support, fold in the job seekers’ supporting documents. Add 1 cup of enthusiasm and dedication. Add startup sprinkles if desired.
9. Finally, use the remaining 2 cups of enthusiasm and dedication to bake the case with USCIS!
10. Allow to cool for 15 calendar days if famished, or 4-6 months if you’re not that hungry.
11. Enjoy!

For those experts out there hungering for the latest H-1B updates, here’s a rundown of what we’ve been seeing over the last two weeks since the Biden Administration took office:

Lottery timing

We expect an imminent announcement regarding the details of the upcoming FY2022 H-1B lottery registration process for cap-subject nonimmigrant visa petitions. The electronic registration period lasts at least 14 days, and the latest possible start date will be March 18, 2021. We’re also awaiting details on when the initial registration period will begin; last year it lasted from March 1 to 20. Feel free to listen back to Get Ready for the H-1B FY2022 Lottery for more details on how this worked last year and please stay tuned if you’re planning on filing an H-1Bs this year: Following these dates is crucial.

Will the lottery be pay-to-play?

A final rule called “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petitions” issued under Trump is currently scheduled to take effect on March 9, 2021. It would change the lottery from being random to being allocated based on highest to lowest relative wage. On January 20 the Biden administration instructed all agencies to consider delaying the effective date of certain rules not yet in effect, such as this one.

We’re all waiting with bated breath to see if this new change will go through. So far USCIS has not published any rule in the Federal Register indicating that the wage-based H-1B lottery will be delayed until after the scheduled start date. Also, over the past few days, there are some preliminary indications that the system will go forward as Trump planned, even under the Biden administration. This includes changes to the H-1B registration online tool and the form.

Although a wage-based allocation might make H-1B salaries more expensive for some employers, it would also dramatically increase immigrant security and employer predictability. As we all wait to see what USCIS will decide to do here, you can also access our free H-1B guide for more information on H-1Bs.

The end of Buy American, Hire American

On January 25, President Biden issued Executive Order 14005, “Ensuring the Future Is Made in All of America by All of America’s Workers.” This ends Trump’s “Buy American and Hire American” Executive Order and ensures a broader focus of helping American businesses “compete in strategic industries” and helping “America’s workers thrive.” We anticipate that this change will probably lead to higher rates of U.S.-business-based visas and green cards being approved in the future.

Changes in wage-level calculations

There are changes to the way that prevailing wages are calculated for visas such as H-1Bs and the PERM portion of the green card process. White House Chief of Staff Ron Klain indicated that new rules may be withdrawn or delayed. We’ve already seen the Department of Labor withdraw the Office of Foreign Labor Certification H-1B Program Bulletin and a Wage and Hour Division Field Assistance Bulletin (FAB) on LCAs, so it is no longer in effect. Additionally, DOL announced this week that it will delay the rule regarding prevailing wage levels, to not take effect until May 14, 2021.

We’re tracking all the major H-1B changes here, so stay tuned to Dear Sophie for all the latest!

All my best,

Sophie

Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!