Common Mistakes to Avoid When Applying for an H1B Visa

As trusted immigration attorneys in the San Francisco Bay Area, we have helped countless clients bring their immigration goals to fruition. If you’ve hit a roadblock in the H-1B visa application process, don’t give up — reach out to Naya Law Group, PC, for legal guidance. 

Work visas in the U.S. are divided into two main categories: temporary nonimmigrant visas and permanent immigrant visas. Whereas permanent immigrant visas allow individuals to live and work in the U.S. indefinitely, temporary nonimmigrant visas, including the H1B visa, allow workers to stay for a fixed period. 

The H1B visa is one of the most well-known and commonly used work visas. It is reserved for professionals in specialized fields, such as technology, healthcare, and engineering, and typically requires the recipient to have a bachelor’s degree or higher. While an H1B visa offers various benefits to individuals, including international career experience and the potential to pursue long-term residency, it is perhaps even more advantageous to the sponsoring business. 

For U.S. businesses, sponsoring an H1B visa holder is an excellent way to attract highly skilled global talent in increasingly competitive fields. By sponsoring an H1B visa holder, U.S. businesses can fill critical talent gaps while gaining a valuable international perspective. However, securing an H1B visa is often a difficult, arduous process, and even minor application errors and oversights can result in denials. For these reasons and more, many businesses choose to work with an immigration attorney to help them avoid costly H1B visa mistakes. 

As leading business immigration attorneys in the Bay Area, Naya Law Group, PC, helps businesses avoid critical pitfalls during the H1B application process and submit high-quality applications. In this article, we explain some of the most common mistakes that applicants make with their H1B visa and why expert legal assistance is the key to navigating it successfully. 

It’s important to recognize that there are numerous types of temporary work visas, and each type differs in its eligibility criteria, application process, and who they are designed for. The H1B visa allows U.S. employers to hire foreign workers in specialty occupations, and the application must be filed by the U.S. employer. 

Applying for an H1B visa is a multi-tiered process that involves many key steps. Here is an overview of the process: 

It’s important to remember that only sponsoring employers can file the H1B petition. Additionally, the H1B visa is employer- and position-specific, meaning that any job changes — even within the same company — may require an employer to amend the H1B petition or file a new one. 

H1B petitions, which are filed using Form I-129, are highly technical applications that require extensive documentation. Even small errors and omissions can result in an application not being accepted for processing and rejected or even being processed but denied. The following are among the most common filing mistakes that we see: 

These are just a few of the numerous reasons why professional reviews matter. Working with an experienced H1B visa attorney can help you avoid costly mistakes by ensuring all application materials are accurate and fully complete, fees are calculated correctly and submitted on time, and supplemental documentation is consistent, accurate, and organized. 

When it comes to H1B applications, the sponsoring U.S. employer is responsible for most of the filing tasks. As a result, employer-related mistakes can have a huge impact on whether or not an H1B is approved or not. If you are preparing to sponsor a foreign worker, it’s important to understand the many potential pitfalls described below. 

A common mistake that employers make is classifying a position as a specialty occupation when it doesn’t qualify as one. To legally qualify as a specialty occupation, it must meet the regulatory requirements under the H1B program, such as requiring at least a bachelor’s degree or its equivalent. 

If an employer’s position is too general, administrative in nature, or requires qualifications that aren’t consistent with a bachelor’s level of education, their position will most likely be rejected or denied. To avoid this, employers should make sure the job duties associated with the position are sufficiently complex, related to the prospective worker’s field of study, and require a degree.

Employers must ensure that the details they provide on the LCA and the I-129 petition are an exact match, as discrepancies in job title, the offered wage, duties, and location can trigger a Request for Evidence (RFE) or an outright denial. The USCIS requires consistency between these documents to verify compliance with classification requirements and wages, which is why many employers rely on lawyers to conduct a thorough review. 

The USCIS requires employers to submit clear, credible documentation that establishes an employer-employee relationship for the duration of the validity period. This documentation should demonstrate that the employer has the right to hire, pay, supervise, and terminate the foreign worker, as supported by contracts, work orders, and similar evidence. This is especially important in cases that include consulting agreements, third-party contracts, and off-site placement. Ultimately, the U.S. employer must prove that it retains direct control over the individual’s working conditions. 

U.S. employers are required by law to pay H1B workers the actual wage paid to workers employed in similar positions and worksites or the prevailing wage for similar types of employment in the geographic area, whichever is higher. If the employer underpays, has wage delays, or doesn’t properly document wage payments, they may be subject to serious violations, including penalties, back wages, H1B petition denial, and disqualification from participating in future H1B programs. 

To avoid unnecessary delays, RFEs, and denials, U.S. employers must ensure that their petition includes accurate and complete information about their company. If the USCIS encounters errors or omissions in business names, addresses, Federal Employee ID Numbers (FEINs), and similar organizational details, it is unable to verify the petitioning company’s legitimacy and ability to employ and pay the H1B worker. Additionally, inaccuracies can call into question the employer’s financial stability and good standing, which is why it’s crucial to thoroughly review all business documentation, registration details, and contact information and ensure they match the LCA and H1B petition.

Whereas some H1B petitions are subject to an annual cap, others, such as nonprofits that are affiliated with universities and research organizations, are not. Incorrectly filing an H1B petition as cap-subject or cap-exempt typically leads to immediate rejection, especially when a cap-subject employer files a petition after the annual cap has been reached. If an employer is claiming tax exemption, they need to demonstrate proof of eligibility, tax-exempt status, or qualifying organizational documentation with their petition. 

U.S. businesses are legally required to maintain a Public Access File (PAF) for each H1B employee and make it available for inspection whenever requested. Among other key documents, each PAF should contain the certified LCA, employees’ wage rate information, and a summary of the offered benefits. If an employer fails to create or maintain a PAF, they may be subject to fines, penalties, and disqualification from the H1B program, which is why they should regularly audit and update PAFs to ensure legal compliance. 

In summary, the USCIS scrutinizes the employer’s eligibility and the validity of their job offer for any errors, omissions, and inconsistencies. If the USCIS finds any of these mistakes, they are likely to deny the petition and may even flag the employer for future compliance review or DOL investigations. For this reason and numerous others, many employers hire an immigration attorney to handle and review their petition documents. 

Just because an H1B petition is approved doesn’t necessarily mean an H1B worker is cleared to begin or continue employment. Visa processing errors and mistakes in maintaining H1B status can result in visa denials, status violations, and even deportation. Although various compliance issues and record-keeping mistakes can incur these consequences, there are a few common pitfalls that employers and workers should be aware of. 

Most visa processing mistakes happen after the USCIS has approved an H1B petition but before the worker has begun employment. Rather than employer errors, these mistakes are typically caused by missteps on the part of the foreign worker. 

After H1B petition approval, each foreign worker must undergo consular processing — including an H1B visa interview — at a U.S. embassy or consulate abroad before entering the U.S. and beginning work. If the worker provides incomplete or inaccurate information during the interview, fails to bring the required documents, or misrepresents employment details or their prior immigration history, they may be denied a work visa. 

Even after consular processing, a foreign worker can incur status violations and jeopardize their visa by ignoring entry timelines. H1B workers cannot enter the U.S. more than 10 days before the start date of their employment, which is listed on the approval notice. Entering the U.S. before that time period can cause serious issues at the port of entry. 

Many H1B workers don’t realize that prior visa violations can seriously impact their ability to work in the U.S. under the H1B program. Failure to disclose previous overstays, past visa denials, and instances of unauthorized work can lead to visa denial under Sections §214(b) or §212(a) of the Immigration and Nationality Act.

To maintain a lawful status once in the U.S., an H1B worker must continue to meet certain obligations for the duration of their stay, and failing to do so can result in status violations and deportation. Sponsoring employers must also adhere to certain maintenance obligations so that the sponsored worker can remain in good standing. 

An H1B visa isn’t just connected to the individual worker, but also to the specifically approved employer. The foreign individual is only legally permitted to work for the sponsoring U.S. employer in the approved position, pay level, and location specified in the H1B petition. Workers are also barred from taking on additional jobs, including freelance positions and side gigs, and participating in any unauthorized employment can result in status violations. 

The sponsoring employer must file an amended H1B petition with the USCIS anytime there is a change to an H1B worker’s job duties, location, title, or wage. If an individual begins working under different conditions before or without amendment approval, they may incur a status violation. 

An employer cannot “bench” an H1B worker without pay unless the worker has requested a voluntary leave. If the employer chooses to terminate the worker, it is the sponsoring employer’s responsibility to contact the USCIS with the change in status. The H1B worker should be aware that upon termination, they have a 60-day grace period to find a new sponsoring employer to file an H1B petition, change their visa status, or depart the U.S.

It is the H1B worker’s responsibility to update and maintain their travel and status documents. This includes maintaining a valid visa stamp, I-94 record, and passport. Failing to do so can result in status issues and violations, especially while traveling outside of the U.S. or attempting reentry. 

Foreign workers must be careful not to stay beyond the expiration date listed on not just their visa stamp but also their H1B. Staying beyond this date without filing for an extension or change of status can lead to a classification of unlawful presence, possibly barring future reentry. 

Ultimately, even when petitions are perfectly filed, processing errors and status violations can lead to costly disruptions, visa denials, and enforcement actions, including deportation. Both the employer and employee share responsibility for maintaining compliance and proper recordkeeping. 

Too many employers and H-1B workers underestimate the consequences of H-1 B noncompliance and renewal mistakes. Ensuring compliance and responsible handling of extensions and renewals is just as important as the initial H1B petitions. 

While maintaining compliance with H1B program protocols is a shared responsibility, many of the tasks involved must be employer-initiated. Below, we discuss a few of the common compliance issues that participants in the H1B should look out for. 

As previously touched on, employers have a legal obligation to create and maintain a PAF for every H1B employee that can be made available at any time for public inspection. Each PAF should include various documents, including a certified LCA, wage determinations, and notice postings. Incomplete PAFs can result in audits and penalties, as well as disqualification from the H1B program. 

Even during non-productive periods, sponsoring employers must pay at least the wage stated on their LCA from the employee’s start date. Underpayment can result in serious consequences for the sponsoring employer and even trigger an investigation with the DOL. 

Every significant job change, including modifications to job title, duties, location, and wages, must be reported to the USCIS. While some changes can be handled by amending the original H1B petition, others require an entirely new petition. Starting work under new conditions without first filing an amendment can have serious consequences for both the employer and the worker.

If an employer terminates an H1B worker, the employer is responsible for notifying the USCIS in writing to formally withdraw the position. The sponsoring employer must also offer the worker reasonable transportation costs back to their home country or most recent country of residence. Shirking these responsibilities can leave an employer liable for back wages and other penalties. 

Compared to other missteps and violations, renewal mistakes and extension oversights may not seem like a big deal. However, they can still result in costly status violations and other serious consequences, which is why compliance with program regulations is essential. 

Missing the H1B renewal deadlines can cause unnecessary complications, especially when considering that H1B extensions can be filed up to six months before expiration. If an employee misses the renewal deadline, they may be subject to status violations and ineligibility to work beyond the validity period. 

Workers must be careful not to allow gaps in status between petitions. If they fail to file a timely extension or if a transfer petition is denied, continuing to work may result in an unlawful status or loss of employment authorization. It’s important to note that an individual is legally permitted to continue working for 240 days after their extension has been filed, if it was filed on time. However, this rule only applies to pending cases, not to extensions that have been denied. 

As eligibility is job-specific, renewal petitions must reconfirm that positions meet the H1B criteria. To do so, renewal positions must demonstrate that the position remains a specialty occupation; that the sponsoring employer is still paying the required wage; and that the worker still holds the necessary qualifications. 

Traveling outside of the U.S. while an extension or a change of status is still pending can have serious consequences that result in a worker being barred from reentering the country. Unless processed as consular notification, the USCIS may even consider the petition to be abandoned.

Remember: Maintaining H1B compliance is an ongoing obligation, not a one-time task. Noncompliance with H1B rules can lead to various costly issues for the worker, including petition denials, immigration eligibility issues, and loss of lawful status. Noncompliance also impacts sponsoring employers and may result in fines, disqualification from the H1B program, and other penalties. 

At Naya Law Group, PC, we know that employers seeking legal assistance with their H1B petitions have numerous options. However, clients in the Bay Area and beyond keep choosing our firm to help them achieve H1B approval because of the unique advantages we bring to the table. Here are some of the benefits of choosing us: 

At the end of the day, choosing the right law firm to fulfill your immigration needs is a highly personal decision. If you find yourself at a crossroads when choosing legal representation, we suggest asking your prospective attorney a few clarifying questions: 

Most clients are surprised at how much clarity they gain from asking just these few simple questions. When you’re ready to discuss your legal options with a trusted immigration attorney from a highly respected firm, Naya Law Group, PC, is here to take your call. Get in touch with us to schedule a confidential consultation and start getting the top-tier legal advice you deserve.