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Are You Ready for H-1B Filing? Last Minute Tips for Quota War Jian Joe Zhou, Attorney at Law Many H-1B petitions are subject to what is known as the H-1B cap, which limits the number of H-1B approvals that may be granted for certain H-1B cases in a given year. The April 1 starting date for filing H-1Bs that are in competition for this highly competitive H-1B quota is fast approaching, and many employers and alien employees who are preparing their H-1B filings are under a lot of stress. This is especially true for alien employees, many of whom consider filing and receiving an H-1B the final hope for keeping their American dream alive. Without the H-1B, they may be forced to leave the country or discontinue working in the US. We previously discussed many pointers for dealing with this stressful period, and I would like to offer some last minute tips for H-1B filing that I have gathered from my almost 9 years of experience in filing variety H-1Bs.
If a full time job offer is not possible, a part-time job offer may be good for an H-1B petition. In general, 15 hours or more per week will be considered a good faith petition for an H-1B, and the USCIS has no problem in granting part time H-1Bs if other requirements are met. In part-time H-1B cases, the employers have to commit to paying an hourly rated as agreed in the LCA form and have to pay actual hours worked if it is more than the petitioned hours.
Any degree that an alien beneficiary tries to use as a base for their H-1B filing must have been granted at the time of filing. The initial H-1B filing package must include conclusive evidence of the degree. Such evidence refers to any one of the following (1) copy of the degree diploma; or (2) transcripts with information of awarded degree; or (3) letter from university registrar confirming the completing of the degree program; or (4) a letter from an authorized school officer confirming the completion the degree program. If a letter from an authorized school officer is used as evidence, it is recommended a clear authorization letter for the officer’s capacity is included. A letter confirming future granting of the degree cannot be counted as a qualifying degree. Please note, a diploma copy is not a mandatory document; many schools issue diplomas a few to many months after the official graduation date. For those who have a foreign degree but have not completed their US advanced degree before the filing, must acquire a foreign degree equivalent evaluation and file their case under the regular (not the reserved limit for US Master’s degree holders) quota. As a typical example, Mr. Li received a both bachelor’s and master’s degree in Civil Engineering from a Chinese university. He is now a Ph.D. candidate with MIT scheduled for his dissertation defense in May 2009. He has yet to receive any US degrees, so even though he has completed all other requirements for his PhD program, he is not considered to have received his Ph.D. from MIT. Therefore, his H-1B sponsoring employer must get an evaluation for his Chinese bachelor’s or master’s degree and file his case under the regular cap group. If Mr. Li’s employer files his case under “US Master” group, his case will be denied even he is selected in the H-1B lottery.
The USCIS Vermont and California Service Centers (the two centers processing H-1B cases) have different and specific addresses and instructions for marking and filing H-1B regular cap and H-1B US Master’s Cap cases. All H-1B cap cases must be properly marked in the attention line of the filing package and mailed to the proper addresses. The two centers have offered different address for regular USPS mail and private courier mail (such as FedEx) and have different instructions for premium processing cases filing addresses. If you are not working with an attorney for filing, you must check very carefully and make verify that the package goes to the right center with correct group clearly marked. Any mistake may result in disaster and the potential loss of the opportunity to receive cap.
USCIS has given very clear instructions regarding checks. It is preferred that the mandatory training fee, filing fee, fraud investigation fee, premium fee (if applicable), be submitted as separate checks. Please make sure that each check contains the exact amount required by regulations. Inaccurate submission of fees may result in a rejection of the case and the loss of the quota even it is initially selected for the quota.
One employer CANNOT file duplicate H-1B petitions for the same alien beneficiary, even if the two cases are for different positions. Once the USCIS checks for duplicate H-1B filings, it may deny both cases even though one or both cases has been selected for the quota; even if the cases are not selected for the quota, USCIS may investigate the abuse of the system and may bar the employer from future filings. However, different employers may file H-1b petitions for the same alien. Each employer has the legal right to file one H-1B petition for any qualified alien, and there is no limit on how many employers can file for the same alien. But the alien beneficiary may need to coordinate closely with the multiple sponsoring employers to avoid future professional or ethical conflict.
All H-1B cap cases delivered at the USCIS before April 1 will be rejected. USCIS has implemented a 5 business day rule: if the cap is reached during any business day during the first 5 business days in April, any cases filed during these first five days will be considered to have been filed at the same time and will be entered in the lottery system for quota selection. For this year, the first business day in April is April 1 (Wednesday) and the fifth business day in April is April 7 (Tuesday). USCIS consider the actual package delivery date at the USCIS facilitate as the receipt date. Postmark date or mailing date is not considered for quota purpose.
According to recently Survey among immigration attorneys by the American Immigration Lawyers Association, 70% attorneys reported that they have less H-1B cases for filing with the California Service Center than last year. This is a reasonable outlook in view of current economic down turn. Though we believe the total number of filings will be reduced this year, the quota will still be tight and most likely, the regular quota will be reached in the first 5 business days. US Master’s cap cases may have a little bit more of a window. In any case, employers and aliens should not risk missing the quota availability, and all quota cases should be delivered at the USCIS within the first 5 business day period to ensure this opportunity.
We do not recommend rushing last minute. However, if some unavoidable situations delayed the decision to file an H-1B and the employer and alien need last minute assistance, our firm is able to work with employers and prepare H-1B cases even after April 1. Even if this is the situation, the case must be delivered to USCIS on or before April 7, the last day of the 5 business day window. If you need assistance for H-1B, please contact attorney Jian Joe Zhou at jzhou@hooyou.com or attorney Jane Xu at jxu@hooyou.com ------ (03/10/2009) For more immigration news, please click here |
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