Tips for H-1B Season 2016


H-1B season is now in full bloom for the capped H-1B numbers which are expected to run out in the first 5 business days of April. Everything should be done to ensure that if selected under the numbers cap, the petition is not rejected for other reasons. Being rejected even erroneously by U.S.C.I.S. sounds the death knell of the case. Even if not rejected, the petition should not be so flawed as to preclude a good chance of success. So the following are 10 common sense tips (some of them hoary chestnuts) that petitioners should take into consideration when filing the H-1B petitions:

  1. Employer signature on the forms – facsimile signatures are not acceptable. Felt tip pen and marker signatures should be discouraged as they sometimes appear to be facsimiles. Employer stamps are never acceptable for forms or letters, although acceptable for checks. Employers should also sign with full signatures as an AILA panelist member in New York recently stated in a chapter meeting that initials were grounds for rejection.
  2. LCA’s (Labor Condition Applications) should be filed immediately to avoid problems with the Department of Labor system when time is running out to file the H-1B’s and to move quickly to complete the case. The loss of a month or more of employment time to the H-1B beneficiary because of the shorter time given on the back end of the LCA should not be an overriding concern.
  3. SOC (Standard Occupational Classification) codes should not be used which do not match the job in question simply because they present a lower wage. U.S.C.I.S. has the authority to challenge use of the codes to determine whether the H-1B petition is supported by an LCA which corresponds with the petition.
  4. Petitions must use the correct versions of the I-129 and I-907 forms (the latter if premium processing is requested). I-129 forms can be the 10/23/14, 3/26/15, and 8/13/15 versions, and I- 907 the 1/29/15 and 12/11/15 versions. There should be no mixing and matching of the forms with a page from one version mixed in with a page from another.
  5. Checks to the Department of Homeland Security should be examined for date of payment and correct amount. They should be separated instead of the entire sum placed on one check. U.S.C.I.S. fees are normally $325 filing fee, $500 fraud fee, and $750 or $1500 job training fee dependent upon whether the employer has 25 or less or 26 or more respectively. The job training fee must come specifically from the employer. If premium processing is requested, an additional $1225 must be included. Also companies with at least 50 employees with over half holding either H-1B or L-1 status must pay a further $4000 under PL 114-113, The Consolidated Appropriations Act of 2016.
  6. Petitions must be sent to the correct service center, either Vermont or California. Where the headquarter is in one state under Vermont jurisdiction but the worksite in an area under California jurisdiction, the petition must go to the California service center. A listing of states under both service centers’ jurisdiction is in the instruction sheet to the I-129 form.
  7. Petitions must have a start date of 10/1/16 to be considered cap cases. Also in the same recent AILA New York chapter meeting, a panelist suggested watching the back-end as well as the front-end – that U.S.C.I.S. will deny a case where the end date of the LCA is less than the end date of the I-129.
  8. Petitions by related companies for the same individual may encounter questions concerning the bona fide reason for which two petitions are being submitted, and may be subjected to RFE’s (Requests for Further Information) or NOIR’s (Notices of Intent to Revoke). Multiple petitions of course increase a beneficiary’s odds of being selected under the H-1B visa lottery. Tip-offs may be companies sharing the same space, having similar names, being of a small size, sharing employees, etc.
  9. Cap-gap status (which allows individuals to continue to work until September 30th as long as the H-1B petition was filed during the OPT period) is only available where the petition requests a change of status for the beneficiary. Where overseas processing is requested, the beneficiary is only allowed to work until the end of the EAD and to stay in the U. S. for the F-1 60 day grace period after the end date of the OPT.
  10. Premium processing is useful in the H-1B lottery, but does not change the odds of being selected. There it has no effect, but should be considered for other situations such as where the petitioner or beneficiary wishes to quickly know whether the petition is selected to have the capability to timely explore other options, to just stop the suspense of not knowing, to travel outside the U. S., or to renew an expiring drivers license. It must be noted that whereas U.S.C.I.S. must reach the matter within 15 days under premium processing or return the $1225 fee, the agency has traditionally declared an exception to the time limit in H-1B season due to the heavy number of cap subject petitions being filed. Nevertheless it can normally be expected to reach an H-1B case by May 1st. By that date, many petitioners with cases that have not requested premium processing are still waiting to hear whether they have been selected.

Good luck to you all in H-1B season!

Reprinted with permission.

About The Author

Alan Lee, Esq. Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. 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; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

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