The United States Citizenship and Immigration Services (USCIS) has clarified certain last-minute issues regarding H-1B filing that starts on April 1.
In a conference call with the American Immigration Lawyers Association (AILA) on March 19, the USCIS said that it has transmitted for publication a final interim rule that would prohibit multiple filings by the same employer for the same employee.
But related employers would be allowed to file separate petitions for the same employee.
The USCIS also said that cap-subject H-1B petitions received through April 5 would be included in the random selection process that would be held if the number of petitions exceeded the quota.
The lottery process will also be modified so that the 20,000 advanced degree cap cases will be selected first and if there are any such cases left, they would go into the 65,000 pool.
With the mad rush in H-1B filing, here are some pointers in order to meet the deadline with timely submission of complete and correct paperwork and fees to the appropriate agencies.
First, obtain a labor condition application (LCA) from the U.S. Department of Labor.
An LCA is a prerequisite to an H-1B filing. The LCA certifies that the employer will pay the prospective employee the actual wage given to similarly employed individuals or the prevailing wage, whichever is higher; that the working conditions of similarly employed U.S. workers will not be adversely affected; and that there is no strike or lockout at the worksite or the occupation for which the foreign worker is sought to be hired.
If the employer has to file the LCA before April 1, he/she has to make sure that the employment start date on the LCA will be six months from its filing. The employment start date on the I-129 form petition for H-1B will however be October 1, 2008 which is six months from April 1. The expiration date for employment indicated on both the LCA and the I-129 should jibe and not be more than three years from the start date indicated on the LCA.
Second, the H-1B beneficiary should be qualified for the specialty occupation offered and should provide proper supporting documentation, particularly a U.S. equivalent of a bachelor’s degree or higher.
For beneficiaries with master’s or higher degrees from U.S. institutions, the USCIS has allotted 20,000 H-1B slots. If the prospective H-1B employee does not have a diploma yet, but can prove that he/she has “earned” the degree and just waiting for graduation, the USCIS will accept the H-1B petition upon other satisfactory proof of completion of course requirements.
It is important, however, that the document/s submitted should be from a verifiable authorized official of the school. Questionable documents may lead to charges of document fraud with serious implications.
Third, correct filing fees must be paid by check or money order to the USCIS. The current fees are $320 for H-1B basic filing fee; H1B Data Collection and Filing Fee Exemption Supplement (ACWIA) fee in the amount of $1,500 if the U.S. employer has more than 25 full-time employees, or $750 for employer with 25 or less full-time employees; $500.00 Fraud Detection Fee; and $1,000 for Premium Processing fee to expedite the processing.
While payment of fees may be combined in a single check, the USCIS prefers that separate checks be issued for each applicable filing fee (I-129, Premium Processing and ACWIA fees.) A separate check must be issued for the Fraud Detection fee of $500.
Lastly, it is important that complete forms, documentation and fees be filed in a timely manner with the appropriate USCIS agency having jurisdiction over the application. The I-129 H-1B petitions should be sent through proper postal or courier services that provide verification of exact dates of delivery and receipt to the applicable USCIS Service Center.
The H-1B petition should be sent to either the USCIS California Service Center in Laguna Nigel, California or to the USCIS Vermont Service Center in St. Albans, Vermont, depending on the work location.
In the Vermont Service Center, deliveries by the United States Postal Service (USPS) are handled differently from courier deliveries. In these cases, the receipt date for USPS delivery is the date the letter is picked up by the USCIS at the post office in St. Albans during the scheduled pick-up time on that day. Mails received at the post office after the second pick-up time are considered to have been received the following day.
Editor’s 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 www.seguritan.com