Watch Out for Potential Delays and Snafus in H-1B Cap Filing

Every year on April 1, USCIS begins accepting H-1B cap petitions from U.S. employers. Congress sets an annual limit on the number of new H-1B visa petitions that can be approved each year. During the last several years, the regular cap of 65,000 visas and master’s cap of  20,000 visas has been reached in the first week of April.

Unless an exemption applies, employers should plan on filing their H-1B cap petitions on April 1, instead of relying on the filing window. An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.

Although there’s still time for employers to prepare H-1B cap petitions for an April 1 filing, they need to watch out for potential delays and snafus.

1. Proving that the Foreign National Qualifies for an H-1B

To qualify for an H1B, the foreign national must normally have a bachelor’s degree in a particular field in or related to what USCIS will consider a “specialty occupation.”

A specialty occupation “requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and which requires the attainment of the equivalent of an American bachelor’s degree or higher in a specific specialty as a minimum for entry into the United States.”

If the employee does not have the equivalent of a U.S. bachelor degree, he must show progressive work experience in or related to the H-1B position to meet the requirements for bachelor degree equivalency.

Obtaining Credentials Evaluation 

Foreign nationals who did not obtain their degree from a U.S. educational institution must show that their education is equivalent to a 4-year U.S. bachelor’s degree. This requires a “foreign degree/education evaluation” from a qualified credential evaluation service.

Obtaining the credential evaluation can take several days or weeks, especially during the months leading up to the H-1B filing season, when the demand for qualified credential evaluators is really high. The result of the evaluation often determine if the foreign national is eligible for an H-1B.

The credential evaluation service generally needs the foreign worker’s resume, transcripts, degree certificates and all other documents related to education in the specialty occupation.

Proving Progressive Work Experience

In some cases, the foreign national might need to prove that he has the equivalent of a bachelor’s or master’s degree based on the combination of the credential evaluation and proof of relevant work experience.

This includes situations where:

  • the person has a four-year degree from a foreign college or university, but the degree is not in the same field as the “specialty”
  • the person has some college education or related coursework, but did not obtain a degree
  • the person has no college education, but has many years of experience.
  • the person has a “bachelor’s” diploma, but it involved less than four years of post-secondary academic study

Standard proof of work experience includes a letter from a previous employer, academic adviser, or professor, stating the job title, hours worked per week, dates of employment, and description of duties.   The letters must show that the person’s experience has been progressively more responsible and demonstrates expertise in the field, either during the employment at a single company or at successive employers.

Although USCIS has not clearly defined  “progressive” experience, the experience letters must show that the person “progressed” in his specialty during his employment, taking on more duties and responsibilities over time.

2. Submitting Labor Condition Application

The employer must first submit a Labor Condition Application (Form ETA 9035) to the U.S. Department of Labor and get it certified before it files the H-1B petition. USCIS will reject or deny an H-1B petition that does not include a an LCA certified by the DOL and signed by the petitioning employer.

The DOL typically takes at least 7 days to process the LCA, but could take longer during the busy filing season. The DOL may reject LCAs that are not properly filled out. The rejection notice includes a list of problems that the employer must correct before it resubmits the LCA.

The LCAs are currently filed through an electronic system, iCert, which is vulnerable to breakdowns and technological glitches.

Furthermore, if the petitioning employer is relatively new or has not previously filed H-1B, it is possible that the iCert system will not recognize the FEIN. In that case, the employer might need to be pre-certified, which will add several days if not more to the timeline.

3. Filing the H-1B Petition

Avoid multiple or duplicative H-1B petitions

To ensure fair distribution of available H-1Bs, USCIS prohibits employers from filing multiple or duplicative H-1B petitions for the same employee. This means employers must not file both a master’s degree cap petition and a bachelor’s degree cap petition for the same employee.  The employer should also avoid filing multiple H-1B petitions using multiple jobs for the same employee.

USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same person and will not refund the filing fees.

Submit all required forms and supporting documents

USCIS has tips for filing H-1B petitions on its website. The critical steps are to:

  1. Complete all sections of the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement.
  2. Include original signatures on all required forms, preferably in black ink.
  3. Provide all required documentation and evidence with the petition at the time of filing.
  4. Mail the petition to the correct USCIS service center.

Include required filing fees

In addition to submitting the required forms and supporting documents, the employer must also provide signed checks or money orders payable to U.S. Department of Homeland Security, signed and dated within the last six months, and include the proper amounts.

Employers should avoid submitting unnecessary excess fees and, more importantly, provide the required fees so that USCIS will accept the case and process the petition. USCIS will reject all petitions submitted with the incorrect filing fees.

The applicable filing fees are:

Base filing fee

  • $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee: (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B)

  • $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
  • $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection Fee

  • $500 to be submitted with a request for initial H-1B status or with a request for an employee already in H-1B status to change employers. (This fee does not apply to Chile/Singapore H-1B1 petitions.)

Public Law 111-230 Fee

  • $2,000 to be submitted by a petitioner that employs 50 or more employees in the United States, if more than half of those employees are in H-1B or L-1 nonimmigrant status (must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers).

Premium Processing Fee (optional, but generally recommended)

  • $1,225 for employers seeking Premium Processing Service

With premium processing, the employer receives a decision on the H-1B petition within fifteen days of the receipt notice , rather than wait several months for USCIS to process the H-1B petition.

Next Filing Season is in April; Other Visa Alternatives are Limited

H-1B visas are for foreign workers in specialty occupations, including scientists, engineers, computer programmers, accountants and teachers.

If the H-1B filing season is missed in the current year, employers will not be able to file H-1B cap petitions until April 1 (or earliest business day of April) in the following year, and cap-subject foreign workers will not be able to start employment in H-1B status until October 1 of that year.

Employers must prepare to file their H-1B cap petitions in early April to increase their chances of hiring foreign talent this year. Otherwise, they might need to look into other visa options, which are few and far between.

Get Help from an Experienced Immigration Attorney

Employers should get help from an experienced immigration attorney to avoid potential delays and snafus in their H-1B filings.

An experienced immigration attorney helps streamline the process by identifying whether a foreign national is eligible for H-1B; providing advice on the required information, forms and documents to submit; obtaining a foreign credential evaluation if needed; submitting the Labor Condition Application to the DOL; preparing the H-1B filing packet, and timely submitting a properly prepared petition to the appropriate USCIS office.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.


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Photo by: Jenni C

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