News Update - March 7, 2009
By Alan Lee, Esq.†‡
H-1B Visa Petitions for FY2010 (October 1, 2009 – September
30, 2010) May be Filed Starting April 1, 2009
The following is a summary of the American Immigration Lawyers
Association’s H-1B Filing Tips for FY2010:
Obtaining Labor Condition Application (LCA) before April
1, 2009 – You cannot submit an LCA for certification
to the Department of Labor (DOL) earlier than 6 months before the
start of the intended employment. So you must set the employment
start date before October 1, 2009 if you want to have an LCA before
the filing period for H-1B cap subject petitions begins on April
1, 2009. The LCA end date cannot be more than 3 years from the start
date. Use a start date of October 1, 2009 on the I-129 and an end
date that is the same as the end date used on the LCA. You can submit
a copy of the signed LCA with an I-129 H-1B petition.
No U.S. Degree before March 31, 2009 - The U.S.
Degree does not have to be awarded before March 31, 2009 if the
H-1B beneficiary has completed all requirements for the degree but
has not yet received the degree. Evidence that the beneficiary has
completed all requirements must come from a school official who
is qualified to provide that information.
Multiple identical H-1B petitions - Multiple identical
H-1B petitions filed by an employer for the same alien will be denied
or revoked. Filing fees for multiple petitions will not be refunded.
This applies even if you are filing a duplicate petition because
you cannot confirm receipt by USCIS. However, related employers
can file petitions on behalf of the same alien for different positions
as long as the petition is based on legitimate business need. Include
evidence or an explanation as to why the petitions are not duplicative.
F-1 expiration prior to October 1, 2009 - A F-1
student whose status expires before October 1, 2009 can remain in
the U.S. if the student timely filed an H-1B petition and change
of status request. The student is in valid status and can continue
to work while the petition is pending. If the case is rejected,
the student’s ability to stay in the U.S. will be determined
by the F-1 Visa. If the case is accepted under the quota, the student
will be granted an extension which will last until H-1B petition
requested start date begins.* You must mark change of status in
Section 3 of the I-129 to ensure this protection.
When to file - USCIS will accept H-1B petitions
starting April 1, 2009, until they determine they have received
more than the H-1B cap quota. In the past the quota has been reached
on the first day. If the numerical limit of H-1B petitions is reached
within the first 5 business days, USCIS will conduct a “lottery”
to randomly select petitions to review. USCIS will make an announcement
if this occurs.
Premium Processing - Filing under premium processing
does not increase the chances of making the H-1B quota. If you request
premium processing, the 15 day premium processing window begins
on the day USCIS accepts the case.
Filing Fee Checks – USCIS prefers separate
checks for each applicable filing fee. An employer can submit one
check for the base filing fee and the ACWIA training fee. The fraud
fee and premium processing fee checks must be separate. If you use
only one check and the amount is calculated incorrectly the petition
will be rejected. Make checks payable to the Department of Homeland
Security.
* This appears to be poor word choice. In reality, better wording
would be that if the H-1B is approved, the student will be given
an extension which lasts until the H-1B starting date begins. If
the individual is selected under the quota, but ultimately denied,
the student’s ability to remain in the U.S. again becomes
dependent upon his/her F-1 status.
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