Filing Pointers for FY 2015 H-1B Cap Petitions

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The number of H-1B cap filings for fiscal year 2015 during the first five business days of the filing season (April 1-7) is expected to exceed the annual quota of 65,000 for foreign workers in specialty occupations and the 20,000 allotted for graduates with advanced degrees from the U.S.

 

If the USCIS receives H-1B petitions that exceed the numerical cap, the USCIS will conduct a lottery which would randomly select the number of petitions required to reach the cap. It must be noted that petitions postmarked on the fifth day may not be included in the lottery. Only those properly filed petitions with the correct fee that are received by the USCIS by April 7 will be considered. Thus, it is best to file the H-1B petition on April 1.

Petitions not selected during the lottery will be rejected along with those filed after April 7. The petition and fee shall be returned.

Multiple filings by an employer for one H-1B worker will result in the denial of all petitions. USCIS will not refund filing fees in this case. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B worker so long as it is for different positions and based on legitimate needs of the employers.

If the H-1B petition is accompanied by a request for premium processing, it will not increase the chances of obtaining an H-1B number. However, applications filed under premium processing will be issued receipts faster than those filed under regular processing. If the USCIS conducts a lottery, the petition filed under premium processing will know more quickly whether or not it was included in the lottery. Premium processing will not start until April 28.

Aside from early filing, the H-1B petition should be carefully reviewed to avoid rejection. Mistakes made on H-1B petitions may result in the rejection of the petition in the USCIS mailroom.

Also, in preparing the H-1B petition, employers are reminded to indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, they must indicate it in the petition. The Department of Homeland Security (DHS) has filed criminal cases against employers who indicated their headquarters as the work site in the petition even though the true intention was to put the H-1B worker in another worksite.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the work site at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied by documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2014.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during this period.

 

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)