A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, March 7, 2012

H-1B Filing Season Important Reminders

The annual H-1B filing season is here again. For those H-1B petitions that are subject to the annual cap of 65,000, the first possible filing date is the first of April. If the petition is accepted and approved for the FY2013 H-1B program, the foreign worker may start working for the employer on October 1, 2012. As the economy continues to recover and unemployment rate decreases, the demand for H-1B visa is expected to increase substantially this year. The following are some important reminders for H-1B employers and applicants:

1) Apply Early: H-1B petitions should be filed as soon as the job offer is made by the employer. Although the H-1B cap was not reached until November 22, 2011 for fiscal year 2012, it was two months earlier than the previous year. The improving economy means that the visa numbers will be used sooner this year. Furthermore, earlier filing also means earlier decision for both the employer and employee. Be aware: April 1 this year falls on a Sunday, the first possible receipt date will be Monday, April 2, 2012. Petitions filed before April 1 will be rejected.

2) Follow regulations and policy instructions: H-1B program is highly regulated by Congress and USCIS policy. Other than the filing deadline, there are other strict legal requirements under the program. For instance, a public inspection file must also be prepared and kept either at the job site or the headquarter office of the company. It is extremely important to follow all regulatory and policy requirements to avoid rejection or denial of the petition.

3) Professional Occupation: H-1B visa is specifically designed for “specialty occupation” or jobs that are mostly professional in nature such as computer professionals, accountants, engineers, etc. There are positions such as sales professionals and business managers may or may not qualify for H-1B depending on the exact job duties. When in doubt, one should consult with a qualified immigration attorney to ascertain whether or not the position offered is a specialty occupation.

4) Know the CAP GAP benefits: The cap-gap rule confer many extra benefits to foreign students in the U.S. For F-1 students who are working in their Optional Practical Training (OPT) program, the cap-gap rule extends their status in the U.S. as well as their employment authorization after they’ve filed a legally sufficient H-1B petition. However, for those students who have completed their OPT and are in their F-1 grace period, filing of a petition only allows them to extend their lawful status in the U.S.

5) Filing fees: Make sure that the correct fees are paid. The basic filing fee for the I-129 petition is $325. For employers with 25 or fewer 25 employees, they must also pay a $750 ACWIA fee ($1500 if they have more than 25 employees) unless they are exempt. Petitioner must also pay $500 fraud prevention fee when sponsoring an applicant for the first time. Under Public Law 111-230, petitioners employing 50 or more employees with 50% or more are in H-1B or L-1 status must pay an additional $2000 fee if the petition is filed before October 1, 2014. Premium processing services will require an additional fee of $1225. Certain fees must be paid by the petitioning employer. Separate checks should be issued for each fee. Filing the petition with the wrong fees will result in rejection.

6) Premium Processing: To premium process or not? That’s the question asked by many H-1B filers. The answer depends on the individual situation. Premium processing service guarantees a decision with 15 days, but it does not improves the chances of approval. Generally speaking, it should be used if the foreign worker’s visa status is expiring soon and certainly of approval is desired. There are other factors to be considered too.

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