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How Early Should I Start Preparing to Submit an H1B Petition?

Every April 1st, the USCIS begin accepting petitions from U.S. employers who are looking to sponsor a foreign employee for an H-1B visa. With only 65,000 visas available (plus an additional 20,000 for beneficiaries with U.S. master’s degrees), the quota will likely be filled within the first 5 business days after April 1st. That means employers must be sure to have the petition finalized and ready for submission on March 30th.

So how early should an employer start preparing for an H-1B submission? In my experience, I always tell my clients to start the process as early as January or February. It often takes time to make sure that all H-1B criteria are met:

Is the position considered a specialized occupation?
Does the employee have the requisite degree?
Will the employer be able to pay the prevailing wage?

Once the parameters for the position are determined, the employer has to file a Labor Condition Application. The employer must post the LCA for 10 days, and it may take a week or two for the LCA to be certified. Factor in the fact that some employers are not recognized by the Department of Labor, so a FEIN verification must be submitted in advance. This means that just the fist step of the H-1B application could take 3 weeks. After that, we have to prepare all the USCIS forms and appropriate supporting evidence. This means it could take 5-6 weeks from start to finish.

To throw a wrench into things, an employer doesn’t want to have the LCA certified too early. Otherwise, this would “eat” into the amount of days that the H-1B application could be approved for.

We have also been asked when is the absolute latest an employer can start preparing an H-1B petition to still make the April 1st submission date. Given the 10-day LCA posting and possible FEIN verification, I would say that March 10th would be a good “cut off” day – after which any H-1B petitions may not be finalized in time to make that year’s lottery.

For more information on filing an H-1B visa petition, please contact immigration attorney Cedric M. Shen at (310) 591-8200 or via email at: cedric[at]maxlawinc.com.