The United States Citizenship and Immigration Services (USCIS) will once again open its doors to H-1B cap applications and considering that the applications for last fiscal year was 233,000, it is safe to assume that it will exceed this figure this year.
Ultimately, the applications are expected to exceed the quota which is at 65,000 for foreign workers in specialty occupations and 20,000 for graduates with advanced degrees from the US. And if the H-1B petitions go beyond the cap, the USCIS will conduct a lottery to determine which petitions will make it to the cap.
With that in mind, it is best to be prepared early to avoid delays. US companies and employers intending to hire foreign workers must start working on all the paper works for the H-1B petitions now to be ready for the April 1 filing.
For instance, the approval and certification of the labor condition application (LCA) with the Department of Labor (DOL) in itself takes about seven business days and that should be considered in the timeframe. In fact, it is recommended that LCAs be prepared and submitted to the DOL as early as February.
It is also best to be ready with all necessary documentations because the USCIS will issue a Request For Evidence (RFE) if your petition is not sufficient to grant said request. When RFEs are issued, this can delay the approval of the petition sometimes way beyond the October 1 start day.
RFEs are often about the position open for H-1B workers, the qualifications and degree held by said worker and whether that matches with what is desired by the company. Sometimes it also looks into whether the candidate’s education and/or experience are equivalent to a US bachelor’s degree.
Petitions not selected during the lottery will be rejected. The petition and the fee will be returned except in cases of multiple filings. Thus, it is advisable not to file multiple petitions for one H-1B worker because that can result in the denial of all petitions and the fees paid will not be refunded. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B so long as it is for different positions and based on legitimate needs of the employers.
H-1B petitions may also be accompanied with a request for premium processing but this will not increase the probability of getting an H-1B number. It will, however, be issued receipts faster than those under regular processing and in case the USCIS conducts a lottery, petitions filed under premium processing will know the results more quickly.
In preparing the H-1B petition, employers must indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, this fact must be stated in the petition. Criminal charges have been filed by the Department of Homeland Security (DHS) against employers for stating anything other than the truth.
An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the worksite at this time.
If the H-1B petition comes with a request for change of status, the petition must be accompanied with documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2016.
Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during the period.
If you have everything and all necessary documentations, it is best to file the H-1B petition on March 31 to be received at the USCIS by overnight mail delivery on April 1.
(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information log on to www.seguritan.com or call 212-695-5281)