Because the cap-subject H-1B filing season for fiscal year 2013 has begun, I thought I might share some suggestions for any of you who are in the fortunate position of having an employer petition for you. These suggestions are important regardless of whether or not an attorney is involved with your petition.
1. Make sure to match the labor condition application (LCA) and H-1B dates
Make sure, when completing the LCA, that you keep in mind the (presumed) October 1, 2012 desired H-1B start date. A common mistake with the LCA in this situation is to specify the current date as the start date, and this date would probably be right now, i.e. April. The LCA period, like H-1B is three years. However, if you (accidentally) request that the LCA begin six months earlier than H-1B period, then the LCA also will END six months earlier than your specified H-1B period. In this case, United States Citizenship and Immigration Services (USCIS) will simply reduce your H-1B period to match the LCA period. In other words, you may end up with only two and a half years of H-1B status rather than three.
2. Pre-verify the employer’s federal employer identification number (FEIN) with Department of Labor
The LCA requires your employer’s FEIN. However, the system the Department of Labor uses to validate the FEIN is their own system, not one from the Internal Revenue Service (IRS). Often, the Labor system is incomplete, meaning that even though the FEIN you entered was a “real” one, the Labor system might still not recognize it, and therefore will deny your LCA. In that case, you will have to notify the Department of Labor and give them FEIN documentation, then wait for them to verify the FEIN, then you will have to resubmit the LCA.
A better approach is to pre-validate the FEIN with Department of Labor even before you file the LCA. Doing so could save you two weeks.
3. Diploma is probably insufficient evidence of degree
You will need to submit evidence of at least a bachelor degree. However, a diploma by itself is probably insufficient evidence, because the H-1B regulations require that the evidence show the courses you took, the periods of time you attended and that the evidence be attested to by the keeper of records of the educational institution. A diploma probably will not show these things.
4. If employer is nonprofit research organization, provide evidence of it
A nonprofit research organization is one type of employer which is exempt from the cap. However, make sure you provide evidence of nonprofit and of research.
5. Make sure you use the most current form
Make sure you use the most current I-129 petition form, or at least an acceptable earlier one. The date of the form is on the bottom right corner of the first page. Using a current form is crucial, because the form now requires your employer to certify that he/she has read and will comply with deemed export rule, with respect to release of controlled technology to a foreign national in H-1B status.
These suggestions are for information only, and should not be considered legal advice.
Calvin Sun， attorney at law 孙自成，律师
610-296-3947, cell 215-983-3723
csun@calvinsun.com
Pr. 17:15, 箴言17:15
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