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The Complete H-1B Guide For April 1, 2011 Filing Date

April 3rd, 2011 No comments
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The H-1B Program

U.S. businesses use the H-1B program to employ and petition for alien workers in specialty occupations and jobs that require theoretical or technical expertise in specialized fields, such as scientists, engineers, and computer programmers.

How USCIS Decides if an H-1B Petition is Subject to the FY 2012 Cap

The United States Citizenship and Immigration Services (“USCIS”) uses the information provided by the immigration attorney to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”).  Some petitions are exempt from the cap under the advanced degree exception provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher (or a foreign academic equivalent).

Cap Eligible Petitions

This is the number of petitions that USCIS has accepted for this particular type of cap.  It includes cases that have been approved or are still pending.  It does not include petitions that have been denied.

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B specialized occupation employees are subject to the annual cap. Please note that up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation which implemented the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.
When to File an FY 2012 H-1B Cap-Subject Petition

We will begin accepting H-1B petitions that are subject to the FY 2012 cap on April 1, 2011.  You may file an H-1B petition no more than 6-months in advance of the requested start date.

* Petitions seeking an FY 2012 H-1B cap number with an Oct. 1, 2011 start date can be filed no sooner than April 1, 2011.

Note:  If you request a start date for a FY 2012 cap-subject H-1B petition that is prior to Oct. 1, 2011 or submit a cap-subject petition prior to April 1, 2011, USCIS will reject your petition.

How to Ensure that USCIS will accept your H-1B petition

The H-1B filing process is a complex and timely set of steps. There are many forms and required pieces of evidence that must be included. The packet of documents must be filed with the correct USCIS location or the packet will be rejected by USCIS. A rejected petition can result in an employer not being able to employ the desired alien specialty occupation worker if the H-1B cap is reached.

Additional Documents Required With Your Petition

  • Labor Condition Application (LCA): You must submit a certified Department of Labor (DOL) LCA (Form ETA 9035) at the time of filing your petition.  A copy of the LCA is acceptable. Petitioners should keep DOL LCA processing times in mind when preparing the H-1B petition and plan accordingly.  If the LCA certified by DOL is for multiple positions, you must provide the name and USCIS case receipt number of any alien who has previously utilized the LCA. Petitioners should ensure that they have signed the LCA prior to the LCA being submitted with the petition to USCIS.
  • Evidence of Beneficiary’s Educational Background: You must submit evidence of the alien employee/beneficiary’s educational degree at the time of filing.
  • A copy of the beneficiary’s final transcriptIf you are indicating that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at time of filing.
  • A Duplicate Copy of the H-1B Petition: You must submit a duplicate copy of your H-1B petition at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad.  USCIS will not make a second copy if one is not provided.

You may also choose to submit a duplicate copy of the petition if the beneficiary is requesting a change of status to H-1B or an extension of stay in case the beneficiary later decides to seek visa issuance abroad or the H-1B petition is approved but the beneficiary’s concurrent change of status or extension of stay request is denied.

You may review the Department of State website to make sure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and for any other consulate-specific special instructions.
Multiple or Duplicative Filings

On March 19, 2008, USCIS announced an interim final rule on H-1B visas to prohibit employers from filing multiple or duplicative H-1B visas for the same employee. To ensure fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

Required Fees

There are different fees depending on the type of H-1B petition you are submitting.  Please refer to Fee Exemption and/or Determination of Form I-129 for detailed instructions on fees.

The following fees may be required with a cap-subject petition:

Base filing fee: $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee; (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B): $750 for employers with 1 to 25 full-time equivalent employees, unless exempt. $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection fee: $500 to be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner (does not apply to Chile/Singapore H-1B1 petitions)

Public Law 111-230: $2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.

Premium Processing fee: $1,225 for employers seeking Premium Processing Service (optional)

While petitioners are normally provided the chance to correct a fee error, pursuant to the regulations, the filing date is not set until the fee error has been corrected.  H-1B cap-subject petitions with non-payable fees will be given a new filing date the day the fee error has been corrected, as long as the cap has not been met.  If the new filing date is after the cap has been met, the petition will be rejected.
Premium Processing Service

H-1B petitions are eligible for the Premium Processing Service.  Petitioners may choose to file a Request for Premium Processing Service (Form I-907) to have their petition processed within 15 calendar days. The filing fee of $1,225 (this fee is in addition to the required base filing and other applicable fees and cannot be waived).

You can file the Form I-907 and corresponding fee:

* concurrently with Form I-129 or
* at any time after you file Form I-129 while it is still pending.

If filed after the Form I-129, include the receipt number (e.g., EAC 11 123 51234) of the Form I-129 in the pertinent section of Form I-907.

Note: USCIS will only accept the 08/10/09N (or later) edition of Form I-907.

A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, ACWIA fee, and Public Law 111-230) is preferred.  Applicable fees should be stapled to the bottom right corner of the top document.
Preferred order of documents at time of submission:

* Form I-907 (if filing for Premium Processing Service)
* Form G-28 (if represented by an attorney or accredited representative)
* Form I-129, Petition for a Nonimmigrant Worker
* H Classification Supplement to Form I-129
* H-1B Data Collection and Filing Fee Exemption Supplement
* All supporting documentation to establish eligibility
* Provide a Table of Contents for supporting documentation
o Tab items as listed in Table of Contents
o Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.
o SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
o SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
o Form I-566 if the beneficiary is a current A or G nonimmigrant
o DOL certified LCA, Form ETA 9035
o Employer/attorney/representative letter(s); and
o Other supporting documentation.
* Duplicate copy of the petition, if necessary.  Clearly indentify the duplicate copy of the petition as “COPY”, so that it is not mistaken for a duplicate filing.

How to mail multiple petitions together

If multiple petitions will be included in the same courier service or Post Office package, please place individual petitions into separate envelopes within the package.  Individual petition envelopes should be marked with the following labels to reference the type of petition:

* Master’s Premium
* Master’s
* Regular Premium
* Regular
* Chile/Singapore

Form I-129, Petition for a Nonimmigrant Worker

* Complete all sections of the form accurately.
* Ensure that the petition is properly signed.
* Provide the petitioner name and address on the USCIS petition form. It is critical that petitioners accurately provide their name and address on the USCIS petition form.  This facilitates USCIS in matching information from the petition with information received from the Independent Information Provider (IIP) through the Validation Instrument for Business Enterprises (VIBE). Listing an attorney or representative’s address in the “Petitioner Information” section of the form may result in the issuance of an RFE.
* Ensure the beneficiary’s name is spelled properly and that his/her date of birth is displayed in the proper format (mm/dd/yyyy).  Also, country of birth/citizenship and the I-94 number (if applicable) should be reviewed for accuracy.
* If the beneficiary will ultimately be seeking issuance of a visa at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing.  For cases where the beneficiary will be seeking a change of status or extension of stay in the United States, a copy is suggested, but not necessary.
* If the beneficiary is seeking an extension or change of status, the petition should include evidence (e.g. Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
* Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129)

* Be sure to complete all sections of the form accurately.
* In listing previous periods of stay in H/L classification (question 3), include the nonimmigrant classification held (e.g. H-1B or L-1).
* Petitioner must sign the form.

H-1B Data Collection and Filing Fee Supplement form

* Be sure to complete all sections of the form accurately.
* Enclose page 17 through 19 of the Form I-129 (with a revision date of November 23, 2010 or later).
* Be sure to answer appropriately in Part A, question 5 and Part C, question 2 if the beneficiary has earned a master’s degree or higher from a U.S. educational institution.

Form I-907, Request for Premium Processing

* Be sure to complete all sections of the form accurately with original signatures.  Note: We will accept the 08/10/09 edition of Form I-907 (or later)
* The representative may sign in both Parts 3 and 4 of the Form I-907 if there is a valid Form G-28 with the filing.  Otherwise, the petitioner’s signature is required.  Preferably, the signature(s) should be in blue ink.
* Include a copy of the Form I-129 receipt notice along with the Form I-907 when Form I-907 is filed after the filing of Form I-129.

If your company is considering the H-1B filing process, contact The Nunez Firm to discuss the options and strategies available to you. Managing attorney Jay Nunez will personally discuss your situation with you and help you better understand the applicable immigration laws and available options.

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