This practical guide from McEntee Law Group highlights essential dos and don’ts for U.S. employers and H-1B workers, covering common compliance pitfalls, best practices, and key responsibilities on both sides. A must-read resource for protecting your business, your workforce, and your immigration status. This material is provided for general informational purposes only and does not constitute legal advice.
H-1B: Dos & Don’ts
BACKGROUND: The H-1B visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations that require at least a U.S. bachelor's degree or its equivalent in a directly related field. The H-1B is an extremely sought-after visa option. Each year, the number of new H‑1B visas granted is capped at 85,000, including 20,000 reserved for candidates with a U.S. master’s degree or higher. Because demand usually exceeds supply, USCIS conducts an annual lottery - often referred to as the “H‑1B cap” or “H‑1B lottery” - to determine who may apply for an H-1B visa every year in March. Those who are selected during registration can then submit an H-1B petition. Below are insights on best practices for employers and employees navigating the program: EMPLOYER DOs Consult an immigration attorney well before the annual H-1B lottery in March. Be mindful of key dates and timelines, e.g. the 2-week registration period in early March, the lottery selection announcement by April 1st, and the 90-day petition filing period starting starting on April 1st. Provide accurate job details for each H-1B applicant including: job title, detailed job duties, salary, worksite location, and minimum degree and experience requirements for the role. Be informed of prevailing wage obligations for the position and discuss any concerns with your legal team. Review all forms and the support letter for accuracy. Cover payment of all attorney and government registration/filing fees for the H-1B Cap registration and application process. Regulations prohibit employees from paying for this. Notify your attorney immediately of any changes to the role (i.e. title, duties, salary, or worksite location(s)) prior to them taking effect. EMPLOYER DON’Ts Do not submit multiple registrations per applicant (this invalidates the application). Do not misrepresent job duties to “fit” H-1B requirements. Do not assume startups or small companies are exempt from prevailing wage rules. Do not allow for work to begin before the H-1B has been approved and takes effect (unless the employee is already work-authorized in another status). Do not assume selection in the lottery guarantees H-1B approval. The petition must still be filed, reviewed, and approved by USCIS.
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H-1B: Dos & Don’ts
EMPLOYEE DOs
While there is an element of luck in securing an H-1B Cap visa, thorough preparation and legal strategy are important factors as well. Be diligent and prepared on matters that are within your control such as document gathering and communication with your attorney. For personalized guidance and legal support, contact our firm today to ensure your H- 1B petitions are compliant with up-to-date regulations. EMPLOYEE DON’Ts Do not rely on advice from friends, online forums, etc. instead of your attorney. Do not pay for any part of the H-1B registration or filing process. Except for fees related to premium processing in limited circumstances, it is prohibited by regulation. DO NOT TRAVEL INTERNATIONALLY while the H-1B process is ongoing and without notifying your legal team in advance. Doing so may have significant consequences for certain applicants, including being required to pay an additional $100K fee. Do not assume selection in the lottery guarantees H-1B approval. The petition must still be filed, reviewed, and approved by USCIS. Do not begin work without H-1B authorization or outside of permitted work in your current status. Maintenance of status is critical. KEY TAKEAWAYS Be sure to flag to your legal team if you have a dependent spouse or children. Maintain valid status if you are in the U.S. (F-1, OPT, STEM OPT, J-1, etc.). If you are seeking an H-1B stamp, avoid posting anything on your social media that could negatively impact your petition, e.g. information that suggests you worked in the U.S. without authorization or political/idealogical content which may raise national security or other admissibility concerns. Provide accurate relevant personal, immigration, and passport information to your legal team. Notify your legal team if any aspects of your offered H-1B role change such as title, duties, salary, or worksite location(s) as changes could impact your case strategy or require additional compliance steps. Collect supporting documentation well in advance of the lottery selection announcement, e.g. passport ID page, diplomas and transcripts, current resume, and all prior U.S. immigration records (F-1, J-1, etc.).
*This summary is for informational purposes only and is not legal advice. For specific guidance, consult with an immigration attorney.
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