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USCIS Expects H-1B Cap To Be Reached April 5

The USCIS announced last March 15 that more petitions than the H-1B cap may be filed between April 1, 2013, the start of the filing season and April 5. It is therefore recommended that employers file cap subject H-1B petitions within those first five days. A petition is considered accepted, not on the date the petition is postmarked, but on the date the USCIS receives it.

Each fiscal year, an H-1B visa quota of 65,000 is allotted for foreign workers in specialty occupations. An additional 20,000 H-1B visas are made available to graduates with advanced degrees from U.S. universities. For fiscal year 2013, the H-1B cap of 65,000 was reached on June 11, 2012.

The public will be notified of the final receipt date or the date when the quota is reached. When the number of petitions received by the USCIS exceeds the quota, the USCIS will conduct an H1-B lottery which will randomly select the petitions to be accepted for processing. Petitions not selected in the lottery will be rejected and returned. Petitions filed after the final receipt date will also be rejected. It was in 2008 when the USCIS last used the lottery system.

Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request. This year however the USCIS will start premium processing of H-1B petitions subject to cap on April 15, 2013. This is to address the expected high volume of premium processing requests and the likelihood that the cap will be met in the first five days of filing.

Before the filing of an H-1B petition on Form I-129, the petitioner must file with the U.S. Department of Labor, a Labor Condition Application (LCA). The certified LCA must be filed with the Form I-129 petition.

To be classified as a specialty occupation for H-1B purposes, the occupation requires at least a bachelor’s degree or higher in the specific specialty or its equivalent. In order to be eligible for a specialty occupation, the beneficiary must have at least one of the following: (1) US bachelor or higher degree, (2) foreign degree equivalent to a US bachelor degree or higher, (3) an unrestricted license or certification to practice profession or (4) experience equivalent to completion of degree.

The H-1B petition must be accompanied by proof that the beneficiary is eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluation and license to practice the profession, if required, among others.

The USCIS allows for the submission of other evidence if the degree has not been awarded yet but requirements for the degree have been met. The final transcript as well as a letter from the Registrar confirming that all degree requirements have been met may suffice.

A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.

There is a base fee of $320 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.

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