April 1st is fast approaching and this has significant meaning for this H-1B filing season. As we have previously mentioned on our website, the USCIS predicts this year that the H-1B caps (both the regular and Master’s cap) will be met within the first 5 business days that petitions are accepted. This high demand will likely result in a visa lottery in which all correctly filed H-1B submitted within the first 5 days of acceptance will be randomly selected to fill the 65,000 regular and 20,000 Master’s degree H-1B caps. Now more than ever it is vitally important that submitted H-1B petitions for cap-subject applicants be free from error: any minor mistake may result in a petition rejection. In such a high demand year as this any error could prove extremely costly as there will not be enough time to reapply this year with the visa numbers being used in only 5 days.

To help with preparation for the upcoming H-1B filing season we have compiled a list of some of the most common and easiest to fix H-1B problems that lead to unnecessary denials or rejections. Being thorough is always recommended in petitions as important as H-1B visas, but this year in particular special care should be given to ensure that your petition has the best chance possible to be selected for approval.

This article is NOT a legal advice nor can it be used as guidance in filing an H-1B.  This is based on information derived from general sources and there is no guarantee of accuracy though we strive to verify it. You should NOT rely on the information in this article in making any legal or procedural decisions.  You should consult with a competent attorney for legal opinions. 

Incorrect Checks and/or Incorrect Fees

To ensure that processing of your H-1B is as smooth as possible make sure that all applicable H-1B fees payable to the Department of Homeland Security are written to the correct agency and in the right amount. The current H-1B filing fee of $325 should be paid in the exact amount and made out to “U.S. Department of Homeland Security.”

While the Premium Processing fee is optional, the same standards apply. Make sure the fee is correct (currently $1,225) and make sure it is made out to “U.S. Department of Homeland Security” to ensure that no delays result from the processing fees.

Other fees that are to be paid by the petitioning employer and NOT the beneficiary include the Fraud Prevention and Detection Fee (currently $500), the American Competitiveness and Workforce Improvement Act of 1998 U.S. worker training fee (Currently $1,500 for employers with more than 25 full-time employees or $750 for employers with no more than 25 full-time employees), and the  Public Law 111-230 fee (currently $2,000 for employers with 50 or more employees in the US, over 50% of whom are H-1B or L nonimmigrant workers, if applicable). These fees are not to be paid by the beneficiary and any checks paid by the beneficiary for these fees will result in the petition being denied. Good communication between the petitioner and beneficiary is crucial for proper fee payment and H-1B filing.

Checks for applicable fees should be paid to the U.S Department of Homeland Security in separate checks. When the beneficiary and petitioner pay their respective fees, they should NOT add all of the totals together and submit them to the DHS in one check. Individual checks should be written for each applicable fee.

Inconsistent and Incorrect Answers

Typos and other minor errors are things that are simple to correct, but if left unnoticed can result is costly delays. Make sure that all information is consistent throughout the petition: name of employer, mailing addresses, name of beneficiary, position information, etc. All of this information needs to be the same throughout the petition to ensure that the filing process will go as smoothly as possible.

Typos are another form of inconsistency that may result in a delay in H-1B adjudication. While it may seem tedious, it is well worth the time of any petitioner to go over their filing multiple times before submitting it to ensure that no minor error remains. Such attention to detail, which comes from experienced case handling, will pay off in the long run.

Another common type of inconsistency for H-1B filing relates to Occupation Codes on the Labor Conditions Application (LCA). When filing an H-1B it is important to ensure that the correct occupation code is selected for the LCA. Sometimes similar job titles may have very different occupation codes for LCA purposes. For example, the job codes for accountant and account manager are different. This is a costly error that may cause complications in H-1B adjudication. Experience attorneys and/or petitioning employers will know how to select the correct occupation code to ensure that the I-129 and LCA are consistent.

Overlooked Signatures

Failing to make all the necessary signatures is a common cause for delays or rejections of H-1B petitions. All relevant sections of the form I-129 and necessary supplements, form G-28 (if and as necessary), the petition letter, and any forms requiring a signature must be signed by the appropriate party to ensure that H-1B processing is not unduly delayed. Going over forms to ensure that required signatures are not missing on all relevant forms may prove beneficial if any are missing.

Failure to Include a Duplicate Copy

H-1B filings require the petition to be submitted in duplicate to the USCIS for adjudication. The USCIS will NOT make duplicate copies of submitted petitions to meet this requirement: it is the responsibility of the petitioner to ensure that USCIS instructions are followed. Failure to include a duplicate copy of the petition will result in delays and, as stated early, in a year where the H-1B caps are expected to be met within the first 5 filing days, any delay will be fatal.

Wrong Mailing Address

Depending on the jurisdiction of where work will be performed, a cap-subject H-1B petition will be sent to either the California Service Center (CSC) or the Vermont Service Center (VSC). Additionally, if a petition is sent by a courier (such as UPS or FedEx) or the petitioner requests premium processing, the address at the Service Center may change. You will need to keep in mind: Where H-1B work will be performed, what means (USPS or Courier service) are being used to send the petition, and whether or not Premium Processing is being requested in selecting the correct address to send your petition packet. For current mailing instructions to the CSC and VSC for I-129 filings, please click here .

Conclusion

Many of these common mistakes are due to unfamiliarity with the H-1B filing process. Without knowing how strict the USCIS can be and how important a flawless petition is be when demand for visas is so high, many of these mistake may seem minor. Practiced filers will know exactly how beneficial proper oversight will be.

The margin of error for filing this year is very thin. If USCIS projections are accurate, cap-subject H-1B visa numbers could be used within the first 5 days that petitions are accepted. To ensure that your petition has the best chance possible to be selected for processing, it is imperative that all filing requirements be followed strictly.

As with all immigration and visa petitions, the help of experienced immigration attorneys can prove to be crucial. Well practiced attorneys with a track record of success are able to ensure that all aspects of an I-129 filing for H-1B visa/status are executed correctly the first time, thus bypassing any detrimental delays in processing. It is highly recommended, in a year with historic demand for H-1B visas, that you contact an immigration attorney to assist you in making your petition as perfect as possible.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past seventeen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, P.C.

Silicon Valley • New York • Los Angeles • Chicago • Houston • Austin • Seattle

Tel:	1-800-230-7040, 713-771-8433
Email:	info@hooyou.com
website:	http://www.hooyou.com

 

(03/28/2013)