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  • Article: H-1B Petitions For 2014 and What You Should Know - Part 3 By Alan Lee, Esq.

    H-1B Petitions For 2014 and What You Should Know - Part 3

    by


    (This is the third of a 4 part article based on a talk given by Alan Lee, Esq., at the Queens Borough Public Library in Flushing, Queens, on March 10, 2014. Today’s topics are the H-1B filing process and strategies of filing. The remaining part will discuss common misperceptions of premium processing benefits, the cap gap, and problems after the H-1B petition is approved and before October 1st.)

    4 The Filing Process and the Strategies of Filing.

    A When should the petition be filed?

    As we strongly believe that there will be a lottery this year, petitions should be filed and received by U.S.C.I.S. within 5 business days of April 1st. I would not suggest, however, timing your delivery for the 5th business day due to the possibility that the case may not get there on time. What about using private couriers? We strongly encourage their use as they are generally more reliable than the post office.

    B What should the H-1B petitions contain?

    They have to contain the correct payment and all the forms. One must be very mindful of the payment to U.S.C.I.S. The agency prefers checks made out to the title “Department of Homeland Security”, 3 checks – one each for the filing fee, fraud fee, and job training fee. The checks must be in the correct amounts in both the written and numerical sums, the date must be correct, and the checks signed. If written by hand, the handwriting must be legible. The job training fee cannot be given by the alien. If the petitioning organization has over 50 and over half are on H-1B or L1 statuses, the 4th check for $2000 must be given by the company. The petitions must contain all the forms, the H-1B data collection sheet, I-129, I-129 supplement for H-1s, copy of the labor condition application (LCA), qualifications of the person, company letter describing what the job is all about, information about the organization itself which can be in the form of pamphlets, brochures, or even the employer’s website, and proof of the applicant’s legal status - possibly a copy or electronic printout of the I-94, I-20 forms, and OPT optional practical training card. In addition, the employer signature must be original. What happens if you have something wrong with the checks or the forms? Immigration will probably send the case right back to the attorney or petitioning organization. In a lottery year like we expect this one to be, that would unfortunately mean the end of the case given the time sensitivity. What happens if the case is missing documents? If the missing document is a transcript, diploma, or proof of legal status or entry, Immigration will send a request for further information to the employer asking for the information instead of denying or rejecting the petition. That is not the end of the case. What about a missing signature? The case gets bounced right back to the representative or petitioning employer. U.S.C.I.S. will not accept any cases in which the check or petition forms are not signed by the employer. So if the employer is missing the signature on the checks or I-129 petition form, the case of course will be returned.

    C Why Use an Attorney?

    Many H-1B potential applicants think that the application is not difficult, and that they can do their own petitions since they themselves are fairly smart. So if the employer is not paying for all of the H-1B processing, why shouldn’t they do all of their own paperwork and avoid the lawyer’s fees? The short answer is that the H-1B is many times not so simple, there are many points at which a person not versed in H-1B petitions can get tripped up, such as the few that we’re describing here. In a year involving a lottery, it is not only the substance of the case, but also the correct process that counts. If you miss an important step and your case gets rejected, it does not matter how great your case is on the merits. No talk or discussion regardless of how informative (like the one here tonight) can help as much as an attorney experienced in H-1B petition filings.

    The applicant is only one party in the H-1B petition process with the other being the employer. So the same question applies as to whether or why an employer should or should not allow applicants to do an H-1B application by themselves? Our belief of course is a little biased and we think that the petitioning employer should use an attorney for purposes of the organization’s liability exposure. With H-1B petitions, possible liability can come from U.S.C.I.S. even if the H-1B petition is approved if there is fraud or misrepresentation, from the Department of Labor under the same circumstances or even if the requisite documentation is not present in support of the LCA, or from the Department of Commerce for violations of the Export Administration Regulations (EAR) or International Trade in Arms Regulations (ITAR). Examples are lack of the LCA package for public examination or lack of recruitment information for a dependent employer or a prevailing wage for the applicant which is less than the wage for similar positions in the organization and there being no explanation for the difference.

    D Strategies of filing

    Filing during the first 5 business days of April is of course a great strategy. If you do, you have good chances of being selected. Other than that, what are the things you can do to maximize your chances? One way is to have multiple H-1B sponsors. For example, you interview at a bunch of companies, and a couple of them are willing to sponsor you for H-1B status. That doubles your chances right there. Can you have 2 companies sponsor you for 2 full-time H-1B positions? Yes you can. You can then pick the best job if both petitions are selected, or take the one that is selected if only one of the 2 is drawn. Is it possible for you to have a part-time H-1B petition? Yes of course it is, and if you are selected for 2 part-time H-1B positions, you can work at both of them. Is there a minimum number of hours to work on a part-time H-1B? There is none under the regulations. Please note, however, that you are not allowed to have the same employer file two petitions on your behalf. Discovery of such invalidates both petitions.

    Where do you file the petitions? Generally speaking, the West and most of the northern states file at the California Service Center while the East and most of the South file at the Vermont Service Center. A list of the states along with the filing locations of both service centers are as follow:

    California Service Center:

    If the work site will be in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin or Wyoming, the petition should be filed to the California Service Center.

    Non-premium processing

    U.S. Postal Service:

    Persons without U.S. master's degrees:

    U.S.C.I.S., California Service Center,

    ATTN: H-1B Cap,

    P.O. Box 10129,

    Laguna Niguel, CA. 92607-1012.

    U.S. master's or higher degree holders

    Same address with the different legend:

    ATTN: H-1B U.S. Master's Cap

    Private Courier

    Persons without U.S. master's degrees

    U.S.C.I.S., ATTN: H-1B Cap,

    California Service Center,

    24000 Avila Road, 2d Fl., Rm. 2312,

    Laguna Niguel, CA. 92677.

    U.S. master's or higher degree holders

    Same address with the different legend

    ATTN: H-1B Masters Cap

    Premium processing

    U.S. Postal Service:

    Persons without U.S. master's degrees

    Premium Processing Service, U.S.C.I.S.,

    ATTN: H-1B Cap

    California Service Center, P.O. Box 10825,

    Laguna Niguel, CA. 92607.

    U.S. master's or higher degree holders

    Same address with the different legend

    ATTN: H-1B U.S. Master's Cap

    Private Courier

    Persons without U.S. master's degrees

    Premium Processing Service,

    U.S.C.I.S., California Service Center,

    ATTN: H-1B Cap

    24000 Avila Rd., 2d Fl., Rm. 2312,

    Laguna Niguel, CA. 92677

    U.S. master's or higher degree holders

    Same address with the different legend

    ATTN: H-1B U.S. Master's Cap

    Vermont Service Center

    If the work site will be in Alabama, Arkansas, Connecticut, Delaware, Washington D.C., Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Virgin Islands, or West Virginia, the petition should be filed to the Vermont Service Center.

    Non-premium processing

    U.S. Postal Service and Private Courier:

    Persons without U.S. master's degrees:

    U.S.C.I.S., Vermont Service Center,

    ATTN: H-1B Cap,

    4 Lemnah Drive,

    St. Albans, Vermont 05479-0001

    U.S. master's or higher degree holders

    Same address with the different legend:

    ATTN: H-1B U.S. Master's Cap

    Premium processing

    U.S. Postal Service and Private Courier:

    Persons without U.S. master's degrees

    Premium Processing Service, U.S.C.I.S.,

    Vermont Service Center,

    ATTN: H-1B Cap,

    30 Houghton St.,

    St. Albans, VT. 05478-2399

    U.S. master's or higher degree holders

    Same address with the different legend

    ATTN: H-1B U.S. Master's Cap

    What are the fees for H-1B filing:

    $325 – Basic fee for the I-129 petition.

    $500 – Fraud prevention and detection fee.

    $750 or $1500 – American Competitiveness and Workforce Improvement Act (AC WIA) fee dependent upon employer size. Petitioners with 25 or less full-time employees pay the lesser amount.

    $2000 – Petitioners with 50 or more employees and 50% in H-1B or L status pursuant to Public Law 111 – 230.


    This article © 2014 Alan Lee, Esq.


    About The Author

    Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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