Beginning on April 1, 2014, the application period for capped FY-2015 H-1B petitions with work beginning on October 1, 2014 (the beginning of the government fiscal year 2015) will undoubtedly close as quickly as it opens. That means of course that unless something dramatically occurs, U.S.C.I.S. will again hold the H-1B lottery by computer to determine which of the petitions will be kept for consideration on their merits. The good news is that even though this is a lottery, most of those who apply are picked.

H-1B petitions are for work in a specialized occupation in which the employer must have a professional position requiring a baccalaureate degree or its equivalent which is fit for the specialized occupation. If the four-year degree is not available, U.S.C.I.S. may consider three years of specialized training/work experience to cover each year of missing education. Such situations require an educational evaluation by a recognized evaluation agency and an assessment of the covering training/work experience by a U.S.C.I.S. examiner. An evaluation covering both education and experience may be helpful in the determination of the beneficiary’s qualifications, but such evaluations in the past have met more positive response where the evaluators had authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training or work experience.

Under current H-1B rules, a petitioner cannot file more than one H-1B cap petition for any one beneficiary. Some are tempted to do so to give the beneficiary more chance of being selected in the H-1B lottery. However, such is precluded and the penalty is cancellation of all petitions. It should be noted that the prohibition does not include multiple employers filing H-1B petitions for the same beneficiary.

Cap-gap rules for F-1 students are expected to remain the same which means that any student with optional practical training (OPT) extending up to April 1, 2014, and beyond whose H-1B petition is filed by the date of the ending date of the OPT is allowed to stay in the country and continue work until September 30th or when the petition is denied. Those who are in the F-1 grace period on April 1, 2014, or when the H-1B petition is filed are allowed to remain but not work under the cap-gap authority. Those in cap-gap status without employment authorization documents (EADs) are not allowed to travel in and out of the U. S. during this period. If they do travel outside, they would likely only return under H-1B authority. The present rules allow approved H-1B beneficiaries to enter the country 10 days before they are eligible to begin work.

Many petitioners and beneficiaries debate among themselves whether to apply for premium processing. Such a request on form I-907 may have some benefit, especially to those who require or want knowledge as to the fate of their petitions at the earliest moment. Premium processing of course involves an additional fee of $1225 to U.S.C.I.S. and normally means that the agency will reach the petition within 15 days of receipt, and if there is a request for evidence (RFE), also respond to the RFE in 15 days. It should be noted that U.S.C.I.S. declared an exception last year expanding the premium processing period to 30 days instead of 15 for the H-1B season because of the inundation of petitions. Although one would think that there is little need for premium processing where the work is not slated to begin for another 6 months, U.S.C.I.S. has an annoying habit of taking 4 to 6 months and even longer to adjudicate many petitions. The extra fee does not favor chances of being included in the lottery, but it does give in addition to the above advantage a faster receipt which is no mean benefit to a worried organization and beneficiary.

Finally employer liability must be pointed out in the event that the H-1B petition is not handled properly. Liability can come from the Department of Labor, U.S.C.I.S., and the Department of Commerce. Where the labor condition application (LCA) package is not prepared properly or the employer does not comply with the LCA conditions, the Department of Labor can become involved. Where misrepresentations are made in the H-1B package, U.S.C.I.S. through its FDNS (Fraud Detection and National Security) teams can investigate and levy penalties. Where violations of The Export Administration Regulations (EAR) or International Traffic in Arms Regulations (ITAR) are present, large penalties can be assessed by the U. S. Department of Commerce. The employer is required to provide an attestation regarding the release of controlled technology or technical data to foreign persons in the United States. It should be noted that although ITAR generally regulates items on the U. S. munitions list, EAR regulates dual use items that may not necessarily be weapons related but could pose a potential risk to national security such as materials, chemicals, microorganisms, electronics, computers, information security, sensors and lasers, and propulsion systems. So although it may be tempting for petitioners and beneficiaries to spend as little as possible for H-1B legal assistance, they should ensure that either they (if not going through legal representation) or their attorneys are conversant with the rules of H-1B liability.

This article © 2013 Alan Lee, Esq.

About The Author

Alan Lee 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.

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