News & Updates

Preparing To File: H-1B Cap Petitions

2019-03-12
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With the H-1b cap season fast approaching, it is important for companies to start preparation towards the filing of H-1b petitions for prospective employees as well as continuing employees as soon as possible. This is of particular importance since the H-1b cap has been reached within a week for the past six years

OVERVIEW:

1- Quick Checklist

2- Applying and obtaining LCA before April 1.

3- Completing the H1B cap subject petition 

4- Filling multiple H1-B Petition for the same benificiary

5- Filling a H1-B petitions when benificiary's U.S. Degree is yet to award.

As I reported during the latter part of last year, the DHS proposed the use of a new electronic registration process as well as modifying the random selection process so as to favor foreign nationals with an advanced U.S. degree. This electronic process is designed to take place before the actual filing and may help make the filing process easier. While this electronic pre-registration process will take not be used this year it is expected to go into effect next year (after the USCIS concludes required testing), a reversed selection process will be used for the upcoming cap season. According to the USCIS, this reversed selection process will allow for the selection of more petitions with beneficiaries holding advanced U.S. degrees.

Since the electronic pre-registration process will not be implemented for the FY 2020 H-1b cap season, which is the upcoming one, It is advisable that businesses/employers prepare to file as they usually do.

Filing the H-1b petition in a timely manner is of utmost importance especially considering how fast the cap has been reached in the past few years. If at the end of 5 business the cap is surpassed, no further petitions will be accepted. As such it is advisable to file within the first four days. Filing on the fifth business day is unadvisable since if the petition is delivered after USCIS picks up the mail for the day, the petition will be deemed as received on the following day.

QUICK CHECKLIST :

A- Only Form I-129 with edition dates 01/17/17, 12/23/16, 08/13/15; 03/26/15, and 10/23/14 will be accepted by USCIS

B- About from the LCA, all signatures must be original (not scanned) and included on all the necessary forms.

C- Double check information entered on the forms. These include signatures, required fees, and dates. Small errors can lead to a rejected filing. On that note, it is important that the start date listed on the petition form is after or on October 1, 2019. Also, all boxes must be completed. NO sections should be left uncompleted as this can lead to rejection.

D- The job details on the Form I-126 must match that of the LCA.

E- You must file duplicate copies of all documents and forms into the PIMS system (Petitioner Information Management Service) to avoid delay in the issuance of the H-1b visa.

F- In cases where there are dependents, the request dates on the Form I-539 must match that of the Form I-129. Also, documents evidencing relationships (such as birth and marriage certificates) and evidence of nonimmigrant status must be included.

G- Although it isn't required by USCIS that the Form G-28 be print on a blue paper, it is advisable to do so for easy identification.

H- Petitions that are not filed at the correct center can be rejected. It is important that you double check the filing location. Check the USCIS website to ensure you have the right address:: https://www.uscis.gov/i-129-addresses.

APPLICANT / EMPLOYER'S PETITION APPLICATION

1. Filing for the LCA (Labor Condition Application)

Since the employer is responsible for filing a petition on behalf of the potential employee, they must ensure that all necessary documentation has been taken care of. The first step is to file for the LCA (Labor Condition Application). This is done with a DOL Form ETA-9035. The form must be submitted using the DOL iCERT web portal or through mail if physical disabilities prevent the employer from filing electronically. The processing of the application can take as much as seven working days. In addition, an additional four days should be set aside in case an administrative issue occurs.

2. Completing the H-1b Petition

Petitioners must file a USCIS Form I-129, including the H-1B Data Collection and Filing Fee Exemption Supplement, and H Classification Supplement. These can be found on the USCIS Form I-129. The approved DOL Form ETA-9035 also needs to be filed alongside. Required documents and evidence that will need to be provided along with the petition include - (1) evidence that the proposed job position is a specialty occupation, (2) copies of educational certificates such as required degree as well as evidence of work experience, (3) copies an unrestricted state license, or certification or registration that permits the beneficiary to perform the specialty occupation, and (4) copy of contract between employer and employer as well as a summary of the terms of the oral agreement under which the beneficiary will be employed. Filing of H-1b petitions for the 2020 fiscal year will begin on April 1, 2019.

For beneficiaries to qualify for the Master’s cap exemption, the Master’s degree has to be conferred by an institution of higher education which isn’t for-profit and private or unaccredited.

It may take several weeks and even months before applicants know if their beneficiary's petition has been picked in the random selection process for further processing.

FILLING MULTIPLE H1-B PETITIONS FOR SAME PERSON

Over the past years, the cap has always been greatly surpassed. This means that not every beneficiary will be selected for processing. A random lottery system is used to select beneficiaries. As such, having more than one petition can increase a beneficiary’s chance of being selected.

While it is permissible for a beneficiary to have more than one petition filed on his/her behalf, there are conditions attached. For instance, the petitions can be from separate unrelated entities.

Situations where it is acceptable to have more than one H-1b cap petition

( i ) Separate unrelated businesses/companies can file H-1b petitions for the same employee for separate job positions; as far as they are legitimate businesses who can establish that they need the skill that can be provided by the beneficiary.

( ii ) Separate but related companies can file H-1b petitions for the same employee, as far as related companies are a legitimate business and they can establish that they need to file separate H-1b cap-subject petitions. The job opportunities, these companies wish to provide has to be separate, unique and well documented. If such need is not established, petitions will be denied. Such petitions are diligently examined by the USCIS. The applicants have the responsibility to convince the USCIS that they are not trying to gain an unfair advantage by filing more than one H-1b petition.

Situations where it is not acceptable to have more than one H-1b cap petition 

( i ) A single business/company cannot file more than one petition for one beneficiary.

( ii ) Affiliated or related businesses/companies cannot file separate petitions for the same individual unless they can prove that they are filing for separate job opportunities.

( iii ) Also, cases, whereby separate companies - which are not related - file H-1b petitions for a singular position at the same 3rd party site with the same beneficiary, are scrutinized by the USCIS. These petitions can be denied if the USCIS decides that the companies are acting in concert.

While there are several situations where it is acceptable to for a beneficiary to have more than one petition filed on the behalf, it is crucial to understand when it is acceptable and when it is not. In such cases, legal counsel is prudent and necessary.

FILLING A H1-B PETITIONS FOR BENEFICIARY WHOSE U.S DEGREE IS YET TO BE CONFERRED ALTHOUGH ALL REQUIREMENTS HAVE BEEN COMPLETED

It is common to find that a beneficiary has completed a course of study for a U.S. degree but the degree is yet to be awarded. As many of us already know, a degree is not always awarded right after completion of the program but rather some weeks/months later. For such a beneficiary, adequate evidence has to be provided that states that the beneficiary has completed the course of study and all requirements have to be met. This information must be provided by authorized personnel of the institution such as the Head of Department, Registrar, or Dean. If the beneficiary is yet to complete the course of study and as such has not met all necessary requirements (for instance yet to completed all examinations and papers), the filed petition will be rejected.

FILLING A H1-B PETITIONS FOR BENEFICIARY BASED ON WORK EXPERIENCE

Work experience can be used as an equivalent to a degree. This work experience needs to be in the related field equivalent to the completion of a degree in the specialty occupation. Evidence has to be provided for this.

Similarly, a filing based on an education and work experience equivalent must include adequate evidence.

 

 

 

Sources:

1. U.S. Citizenship and Immigration Services. (April 3, 2017). H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models. Retrieved February 28, 2019

2. U.S. Citizenship and Immigration Services. (April 3, 2018). H-1B Fiscal Year (FY) 2019 Cap Season. Retrieved February 28, 2019

3. U.S. Citizenship and Immigration Services. General Requirements for H Petitions. Retrieved February 28, 2019

4. U.S. Citizenship and Immigration Services. (March 23, 2018). Policy Memorandum SUBJECT: Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018). Retrieved February 28, 2019

5. U.S. Federal Register. (January 31, 2019) Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens. Retrieved February 28, 2019

6. American Immigration Lawyers Association. (March 6, 2019). Filing Tips and Resources for FY2020 Cap-Subject H-1B Petitions - AILA Doc. No. 19030601

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