H-1B Filing Reminders

Although the U.S. economic downturn and the new H-1B restrictions imposed on recipients of economic stimulus funds would probably lead to less H-1B petitions this year, employers should play it safe by filing on April 1.

In the past years, the annual H-1B quota was reached on the first day of filing. If this happens again, all properly filed petitions will be subjected to a random selection “lottery”.

To petition an H-1B worker, a labor condition application (LCA) from the U.S. Department of Labor must be obtained first.

The LCA certifies that the employer will pay the prospective employee the actual wage given to similarly employed individuals or the prevailing age, 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 lock-out at the worksite or the occupation for which the foreign worker is sought to be hired. There are additional attestations required by the stimulus bill.

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 October 1, 2009, which is six months from April 1. The expiration date for employment indicated on both the LCA and the I-129 should jibe and not be more than three (3) years from the start date indicated on the LCA.

The documentation for the petition must show that the alien-worker is qualified for the specialty occupation and the particular job offered by showing that he/she has earned the appropriate academic degree in the field of work or a combination of education and experience equivalent to that degree.

If the degree has not yet been conferred but the beneficiary can show that he/she has completed all the requirements and thus “earned” the degree, a statement or documentation by the authorized school official/s may be presented. Only authorized school officials qualified to give this information may provide this statement.

An employer cannot file multiple petitions for the same H-1B worker. This will result in the denial and forfeiture of the filing fees. However, related employers (principal and subsidiary or affiliate) may file different petitions for the same worker for different positions as long as the petitions are based on a legitimate business need, and they can prove that the worker is qualified for these positions.

F-1 students whose status will expire before October 1, which is the start of the 2010 fiscal year, will be allowed to remain in the U.S. pending the adjudication of the H-1B petition and change of status request.

The documents must be accompanied by proper filing fees including the base fee of $320.00, ACWIA fee of $750 or $1,500 (as applicable), fraud fee of $500.00 and optional premium processing fee of $1,000. The USCIS prefers separate checks. Incorrect fees may result in denial of the petition.

A request for premium processing will not increase an applicant’s chance to be included in the quota. But it will make the notification of his/her selection faster.