By:  Thomas J. Joy, Esq.

Preparation of Cases

Starting April 1, 2009, the USCIS will accept filings of H-1B cap cases for employment in fiscal year 2010 starting October 1, 2009.  As in the past two years, it is expected that there will be more applications than there are H-1B visas available with the possibility of a random lottery to determine the recipients of the available H-1B visas.  As a result, it is critical that employers start preparing their H-1B cap cases now with the goal of delivery of the applications to USCIS on April 1, 2009.

Various steps in the preparation process, unless started now, may not be completed in time to file on April 1, 2009.  Diplomas and transcripts may need to be obtained from colleges and universities.  Experience verification letters may need to be obtained from previous employers.  English translations may need to be completed.  Foreign credential equivalency evaluations may need to be obtained.  Finally, the Department of Labor has announced that the processing of the required labor condition application (LCA) will take longer due to increased scrutiny.  As the April 1, 2009 filing date approaches, colleges and universities, translation companies and foreign credential evaluation companies become very busy and often can not guarantee that they can provide the requested service and documentation in time for an April 1, 2009 filing.

H-1B Cap Gap Cases

Regulations now provide that the lawful status of an F-1 student who is the beneficiary of an H-1B petition and request for change of status will be automatically extended along with OPT employment authorization to October 1.  This will allow an F-1 student with OPT expiring before October 1 to stay in the United States and work through October 1 when the H-1B status will take effect.

17 Month OPT Extension for STEM Graduates

Regulations now provide that graduates with Science, Technology, Engineering and Mathematics (STEM) degrees employed by employers enrolled in the E-Verify program, can obtain a 17 month extension of OPT beyond the 12 months already available.  This can be critical to keep recent graduates in the United States and working if they are not successful in obtaining one of the limited number of H-1B visas on their first attempt.  Note: The application for the 17 month extension must be filed prior to the expiration of the initial 12 month OPT period.  A timely filing results in an automatic extension of OPT up to 180 days while waiting for a decision on the 17 month extension application.

Conclusion …

As you can see, proper advance planning and preparation of H-1B cap cases can increase the chances of successfully obtaining one of the limited number of H-1B visas available under the quota.  In addition, proper use of the H-1B cap gap regulation and the 17 month OPT extension regulation for STEM graduates can maximize the time that recent graduates can stay and work in the United States while awaiting an H-1B.

Immigration Solutions is already working on H-1B casework.

If Immigration Solutions is not handling your H-1B case, our attorneys are available to consult with you as well as to offer a 2nd opinion.

Employers … it is not too soon in any way to be setting your hiring strategy in place for the April 1, 2009 commencement of the H-1B filing period to start employment October 1, 2009 (for fiscal year 2010).

USCIS expects to receive far more petitions for new H-1B employment than are needed to meet the annual quota of 65,000 as well as for the additional 20,000 H-1B numbers for candidates with US advanced degrees.

We cannot stress how important it is that employers seeking to hire new H-1B workers, identify all current or future employees who will need initial H-1B sponsorship as soon as possible. We encourage you to work closely with your immigration provider on the thorough preparation of your casework so that it will be ready to be sent by courier for delivery to USCIS on April 1, 2009.

160,000 cases were filed against H-1B quotas last year. It is anticipated, due to the economic downturn, that there may be fewer H-1B filings in FY 2010; however, it is still certain that USCIS will receive a very high volume of filings that will far surpass the annual quotas as employers submit petitions in anticipation of their future hiring needs.

USCIS will use a computerized lottery if an excess of H-1B petitions are received to choose the petitions that will be awarded a cap number. Planning in advance cannot be stressed enough. Employers must have their cases ready for arrival at USCIS on April 1 – and must know that they are approvable when submitted – to ensure that they are included in the selection process. Even with advance planning and timely filing – there is no guarantee that a petition will be awarded a quota number if USCIS receives more than enough petitions to satisfy the annual cap.

Immigration Solutions is already starting to gather relevant and required documentation to draft H-1B casework such as college or university degrees and transcripts, evaluations of foreign educations credentials, certified translations of foreign language documents, maintenance of status information, etc. Now is the time to do your strategizing and to gather all necessary information to assure that the casework, when filed, is complete and approvable upon submission to USCIS.

Labor Condition Applications should be obtained as soon as possible. DOL has announced its intention to more closely scrutinize LCAs beginning in early 2009. In the past, LCAs were processed very quickly online – in a matter of minutes; however it has been stated that DOL is expected to take up to 7 days or more to process LCAs. Planning concerning this is absolutely essential. Employers should not wait until the final weeks before April 1, 2009 to obtain certified LCAs. LCAs should be submitted to DOL as soon as possible so that H-1B petitions can be completed and ready to file on April 1st. Employers should note that obtaining an LCA early can shorten an H-1B worker’s initial period of stay, since LCAs can only be obtained six months before a requested start date and are valid for a maximum of three years. However, if applied for early, the certified LCA will be in hand and ready to file with the H-1B petition on April 1.

If Immigration Solutions is not handling your H-1B case, our attorneys are available to consult with you as well as to offer a 2nd opinion.

Contact us today!