Last Minute Filing Tips for H-1B
Reuben S. Seguritan, May 18, 2008
The United States Citizenship and Immigration Services (USCIS) has clarified certain last-minute issues regarding H-1B filing that starts on April 1.
In a conference call with the American Immigration Lawyers Association (AILA) on March 19, the USCIS said that it has transmitted for publication a final interim rule that would prohibit multiple filings by the same employer for the same employee.
But related employers would be allowed to file separate petitions for the same employee.
The USCIS also said that cap-subject H-1B petitions received through April 5 would be included in the random selection process that would be held if the number of petitions exceeded the quota.
The lottery process will also be modified so that the 20,000 advanced degree cap cases will be selected first and if there are any such cases left, they would go into the 65,000 pool.
With the mad rush in H-1B filing, here are some pointers in order to meet the deadline with timely submission of complete and correct paperwork and fees to the appropriate agencies.
First, obtain a labor condition application (LCA) from the U.S. Department of Labor.
An LCA is a prerequisite to an H-1B filing. The LCA certifies that the employer will pay the prospective employee the actual wage given to similarly employed individuals or the prevailing wage, whichever is higher; that the working conditions of similarly employed U.S. workers will not be adversely affected; and that there is no strike or lockout at the worksite or the occupation for which the foreign worker is sought to be hired.
If the employer has to file the LCA before April 1, he/she has to make sure that the employment start date on the LCA will be six months from its filing. The employment start date on the I-129 form petition for H-1B will however be
Second, the H-1B beneficiary should be qualified for the specialty occupation offered and should provide proper supporting documentation, particularly a
For beneficiaries with master’s or higher degrees from
It is important, however, that the document/s submitted should be from a verifiable authorized official of the school. Questionable documents may lead to charges of document fraud with serious implications.
Third, correct filing fees must be paid by check or money order to the USCIS. The current fees are $320 for H-1B basic filing fee; H1B Data Collection and Filing Fee Exemption Supplement (ACWIA) fee in the amount of $1,500 if the
While payment of fees may be combined in a single check, the USCIS prefers that separate checks be issued for each applicable filing fee (I-129, Premium Processing and ACWIA fees.) A separate check must be issued for the Fraud Detection fee of $500.
Lastly, it is important that complete forms, documentation and fees be filed in a timely manner with the appropriate USCIS agency having jurisdiction over the application. The I-129 H-1B petitions should be sent through proper postal or courier services that provide verification of exact dates of delivery and receipt to the applicable
The H-1B petition should be sent to either the
In the
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Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at