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Apr 28, 2008
Anticipating the H-1B Rush
- Reuben S. Seguritan Email this article

In anticipation of the rush of H-1B filings on April 1, the United States Citizenship and Immigration Services (USCIS) has come up with a list of measures to guide employers.


Inaccurate completion or filing of petitions may result in rejection or denial, the USCIS warns.


The first day of filing for fiscal year 2009 is April 1, 2008, six months before the start of the fiscal year on October 1.  Cap subject petitions received before that date will be rejected.  Petitions must be filed with the Vermont and California Service Centers depending on the work location.


The correct filing fees must be included in the petition.  The base fee is $320.  In addition, there is a fraud fee of $500 and ACWIA (American Competitiveness and Workforce Improvement Act ) fee of $750 if the employer has 1 - 25 employees and $1,500 if the number of employees is 26 or more.  A $1,000 premium processing fee is required for expedited service. 


A certified labor condition application (Form 9035) from the Department of Labor must be attached.  This form contains several attestations or promises by the employer.  It indicates information about the proposed employment such as work location, period of employment and rate of payment.  The rate of payment must be the prevailing wage or actual wage, whichever is higher, 


If the beneficiary is in the U.S. and is applying for a change of status, he/she should include evidence such as Form I-94 or Form I-797 to establish that he/she will have maintained a valid nonimmigrant status through the employment start date which is not earlier than October 1.


If the beneficiary will apply for the H-1B visa abroad, a duplicate copy of the petition is required.


The cap for H-1B is 65,000 annually and 6,800 are reserved automatically for nationals of Chile and Singapore.  There is an additional 20,000 H-1B numbers for holders of masterís degree or higher from a U.S. institution.


A repeat of the mass filings last year, when about 150,000 petitions were filed on the first filing day is expected.  If the cap is reached on April 1, a computer-generated  random selection will be conducted and cases not selected will be rejected and returned.


All H-1B numbers were used up in the last several years.  In the fiscal year 2005, the cap was reached on October 1, 2004; in 2006, it was reached on August 10, 2005; and in 2007, the cap was reached on May 26, 2006.


The H-1B classification is given to foreign nationals who meet the requirements for a specialty occupation.


A Specialty Occupation requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelorís or higher degree.  Examples of professionals in a specialty occupation are accountants, architects, engineers and teachers 


Physicians, physical therapists and occupational therapists qualify for H-1B but professional nurses are not eligible unless they are employed in positions requiring advanced practice certification or they are in upper level nurse management.



Editorís Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at

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