H-1B nonimmigrant visa petitions for the 2015 fiscal year (October 1, 2014 through September 30, 2015) can be filed starting April 1, 2014. The volume of H cap petitions during those first five working days of 2014 is expected to exceed the annual quota of 65,000 regular cap petitions and 20,000 advanced degree petitions.

The following tips can help you to avoid H cap petition rejections in the USCIS mailroom.

Create a Filing Checklist

1. Checks must be dated, signed and in the correct amount. Many rejections are due to check errors. Be sure the checks are made payable to the Department of Homeland Security. Pay close attention to selecting the correct amount for the training fee check etc.

2. Correct filing location- Make sure the service center you are filing at has the jurisdiction over the company headquarters location. Confirm VSC or SCS as the correct filing location based on worksite.

3. Signatures must be original and are included on all required forms. (Note that the LCA may be a scanned signature).

4. Petition start date must be 10/1/2014 and the end date should match the LCA expiration or beneficiary’s final 6 year eligibility date. 

5. LCA job details must match the I-129 petition (title, salary, worksite location)

6. Documents must show that the beneficiary is maintaining nonimmigrant status (to 9/30/2014), if change of status is requested.

7. A duplicate copy of the petition and supporting documents should be provided to the Kentucky Consular Center. And response to an RFE or NOID should also be submitted as a copy.

8. If applicable, dependent’s I-539 request dates should match the I-129 petition and should include visa status and relationship documents (marriage and/or birth certificates).

What if the U.S Degree will not be awarded by 3/31/14?

USCIS has approved H-1B petitions for foreign nationals who have earned degrees from U.S institutions of higher learning. Once the foreign national has completed all requirements for the degree, s/he has “earned” the degree. You must submit evidence that the foreign national has completed all the requirements for the degree from an official at the school who is qualified to provide that information (Dean, Department Head, etc). Letters prepared by unauthorized employees at the school stating that the student has completed all requirements toward a degree, when in fact there are still examinations or papers to be completed post filing date are invalid. Documentation of completion when the student has not completed the program may be considered fraud resulting in the cause being denied on the basis of ineligibility at the time of filing. If you submit a petition arguing that the individual will have the degree by 10/1/2014 (H-1B status start date), your case will be denied.

Can multiple identical petitions be filed for the same foreign national?

USCIS will either deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fee. However, the rules do not prevent related employers (parent company and its subsidiary) from filing petitions on behalf of the same foreign national for different positions based on legitimate business needs. You are advised to include evidence and/or explanation in each filing to demonstrate why the filing is not a duplicate.

You are advised not to file duplicate petitions regardless of the reason.

Will an F-1 nonimmigrant student be able to remain in the U.S if his or her F-1 status expires before 10/1/2014?

On 4/08/2008, the Department of Homeland Security issued a regulation extending the authorized stay for F-1 students who are current using Optional Practical Training and have timely filed an H-1B petition, but for whom the OPT will expire before October 1, the student will remain in valid status and can continue to work through September 30th of that year while the petition is pending or if it is approved. If the case is rejected, the student’s F-1 status will dictate the continued ability to remain in the U.S.

A student who completed his or her post completion OPT and was in a valid grace period at the time the cap subject H-1B petition was filed will receive an automatic extension of his or her D/S admission. The employment authorization is not extended because it has already expired.

When must the H-1B petitions be filed?

USCIS will receive petitions until it determines it has received more than the maximum allowed under the H-1B cap quota. Under current USCIS regulations, if they have received a sufficient number of petitions in the first five working days days in April, they will conduct a random selection lottery. If there is a lottery this year, which is expected based on projections, then USCIS will issue an announcement. The safest course of action is to file all H-1B petitions on the first available date.

We think that the numbers of H-1B applications will exceed the quota and there will be a lottery for the H-1B cases received by the USCIS in the first five working days in April 2014.

Will premium processing increase the chance of making the H-1B quota?

No, it will not. If your case is accepted for premium processing, the 15 day processing window will likely start on April 15, 2014. However, the receipt notice may be issued faster under premium processing therefore the beneficiary and petitioner may know if the have been chosen in the lottery sooner. This information is helpful for beneficiaries that are running out of OPT in April because it allows them to get their I- 20’s annotated with proof of continuing work authorization as soon as possible.

Should separate filing fee checks be submitted?

USCIS prefers separate checks made payable to the Department of Homeland Security or U.S. Citizenship and Immigration Services for each applicable filing fee. The USCIS instructions state that an employer can submit one check that contains both the base filing fee and the ACWIA training fee. The fraud fee and premium processing fee must be separate checks.

Where is the petition filed?

See “Direct Filing Addresses for Form I-129, petition for Nonimmigrant Worker” page on the USCIS website: http://www.uscis.gov/i-129-addresses

Zhang & Associates, P.C. has successfully represented many H-1B cases. If you would like to contact us, please email us at info@hooyou.com. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service and file your case to USCIS no later than Monday April 7, 2014, the fifth business day of this April. If you already retained another attorney but want to know a second opinion or have further concerns, you are welcome to retain us for fee-based consultation or quality control services. 

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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 eighteen 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
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(03/22/2014)