We are in the midst of the H-1B season. If you have not yet begun to prepare the H-1B for the April 1st filing date, do not despair. It is not too late. It will take about a week or so to submit and receive an approval for the Labor Condition Application (LCA – Form 9035) from the U.S. Department of Labor (DOL) but there is still time. The most important thing to do now is to immediately ask your employer to submit an H-1B Petition on your behalf.

Asking your employer to submit an H-1B Petition may be a bit uncomfortable so we are providing a few tips for the H-1B “want-to-be” that may help them to understand the value and importance of initiating the H-1B Petition:

1. Since the potential H-1B candidate has, by now, been working for the prospective H-1B employer, the H-1B employer is aware of the excellent value that is added to the organization and continue to be added if the employer agrees to sponsor the foreign national for the H-1B Petition.

2. The prospective H-1B Beneficiary has already spent some time with the potential H-1B employer, and the cost to the employer (if it loses the potential H-1B candidate) can be significant. Any HR Manager and/or Professional would agree that the cost for training is a severe drain on a company’s resources.

3. The additional cost for a recruiter to assist with the location and implementation of a discrete skill-set, like the one already possessed by
the OPT employee, is relatively significant compared to the low cost of the
employer’s investment in submitting the H-1B nonimmigrant visa Petition.

4. The filing fee depends upon the type and size of H-1b employer. It can range from $1,575.00 to $5,550.00. Although employer is required by the law to pay for the filing fee and costs associated with the H-1B, certain costs, such as premium processing fee, can be borne by the prospective H-1B employee. Be sure to carefully review the Law to determine what costs for the H-1B can be allocated to the employer and what costs can be paid for by the prospective H-1B employee.

5. While it is highly likely that there is going to be a Lottery (technically referred to as “Random Selection Process”) this year, if the employer does not try to obtain the H-1B visa in the earliest cycle then it will potentially forgo the opportunity to have “a second bite at the apple” (by applying in later H-1B cycles for the potential H-1B employee).

6. The H-1B nonimmigrant visa is prospective in nature and has nothing to do with H-1B submission. It has to do with what will be happening on or about October 1st. In simple terms, not having work for the potential H-1B employee at this moment will not jeopardize the H-1B Petition submission. The employer needs to only demonstrate that there WILL be work for the potential H-1B candidate in October. This may, for some employers, raise the comfort level for their wanting to submit the Petition.

7. Once the H-1B petition has been submitted the potential H-1B employer will be able to continue to the OPT student in OPT status while the H-1B petition is pending or until October 1st assuming a favorable outcome with regard to the H-1B nonimmigrant petition.