While handling H-1B
cases during the past few months, including unfortunately several “cap full”
situations, I reflected on some common questions and issues of those cases, and
share them below. Please note that this information is not legal advice.
Neither non-profits or
NGOs by themselves qualify for cap exemption
During the past few
months, several people said that they might be working for a non-profit
organization, or for a non-governmental organization (NGO). These people
wanted to know if working for such organizations would exempt them from the
cap. I explained to them that unfortunately the Immigration and Nationality Act
does not reference either type of organization with respect to H-1B cap
exemption. The federal regulations that govern H-1B status similarly make no
such mention. In other words, simply being non-profit or being an NGO is
insufficient, by itself, for such an exemption.
In order to be exempt
from the cap, an employer needs to be an institution of higher education as
defined by section 101(a) of the Higher Education Act of 1965, a government
research organization, a non-profit research organization or an organization
that has a qualifying affiliation with an institution of higher education.
Simply being non-profit, or simply being an NGO is insufficient for
an organization to have cap exemption.
You can
have an April 1 H-1B filing date, OR you can have a full three years of H-1B time, BUT
YOU CANNOT HAVE BOTH
Those of you who plan to
file a cap-subject H-1B petition as early as possible, i.e. on April 1, should
be aware that doing so will deprive you of time at the end of our H-1B period.
That is, you will not be able to get your full three years of H-1B time, but
rather will have that time reduced by about two weeks. Conversely,
if you want to have the full three years of H-1B time, you will not be able
file right on April 1, but would need to wait until perhaps April 10 or 11.
In other words: you can
have an April 1 filing date, or you can have a full three years of H-1B
time, but you CANNOT HAVE
BOTH.
The reason for this
situation involves the relationship between the labor condition application
(LCA) and the H-1B petition, as well as the processing time for the LCA.
Like the H-1B petition,
an LCA can be filed up to six months in advance. In addition, like the H-1B
petition, an LCA can request a period of up to three years. However,
the LCA must be filed and certified, and then included with the H-1B petition.
That is, the LCA filing and certification must occur before you can file the
H-1B petition. Furthermore, the LCA typically requires about six to
seven business days for the certification. This processing time
prevents you from getting a full three years of H-1B should you file on April
1. Here’s why.
Let’s say that you
wanted to file your H-1B petition on April 1, 2012 (and let’s pretend April 1
was a business day, even though it was really a Sunday). Doing so
would allow you an H-1B period of October 1, 2012 to September 30, 2015. However,
the H-1B filing would need to include a certified LCA . Therefore, in order to
have the certified LCA by April 1, you would need to submit the LCA
material about seven business days in advance of April 1, for example March 20.
If you submit the LCA on
March 20, then specifying an October 1 LCA start date (to match the H-1B start
date) would be IMPOSSIBLE, because October 1 is more than six months from March
20. Rather, the latest that the LCA period could start would
be September 20, and the longest it could run would be to September 19,
2015. The government will not allow you have H-1B time that exceeds
the end of your LCA time, so they will shorten your H-1B to end on September 19
rather than September 30. In other words, you would lose 11 days of
time at the end of the H-1B period.
If, on the other hand,
you wanted a full three years of H-1B time, starting from October 1, 2012, you
would need to submit your LCA no earlier than April 1, 2012. You
then would probably receive the certification around April 10, meaning that the
earliest you could file your H-1B petition would be April 10 or later. In
this case, you could get a full three years. However, you would not be able to
file right on April 1, but rather on April 10 or later, and therefore would run
a greater risk that the cap will fill up in the meantime.
Official transcripts
If, as a university
student, you are using a system such as Banner or Blackboard, you probably have
the ability of printing your own transcript. Be aware, however, that according
to regulations, such a transcript is insufficient for H-1B petition purposes.
That is, submitting such a transcript might not be convincing to the government
reviewer, and might result in a request for a “real” transcript—that is, one
that is issued by the university itself, generally by the registrar’s office.
I am not saying that every petition submitted with an unofficial
transcript will be delayed or denied, but rather that you are safer if you
comply with the requirement by submitting an official transcript.
For this reason, try to
take care of such matters earlier rather than later. An official transcript
typically comes from the registrar’s office of the university. They often
require a week or two to process a transcript request, and often they do not
take credit cards, only checks. The sooner you can supply an official
transcript, the sooner your attorney will be able to file, and the greater your
chances of “beating the cap.”
Photocopies rather than
originals
The government could ask
you to provide an original version of a document, such as a passport or transcript.
However, I have never received such a request. For this reason, save original
documents in your personal file, and submit only photocopies instead. More
importantly, make sure your photocopies are accurate ones of unaltered original
documents. Do not submit photocopies of altered original documents, because
doing so could get you into really serious trouble.
Certified translations
Any document you submit
that is not already in English must be accompanied by a certified English
translation. The person who certifies the translation must be someone who
is fluent in English and the other language, and must sign a statement
regarding their fluency and also that the translation is accurate. That
person also may be the one who actually does the translation, but need not be.
Therefore, for example, you yourself could translate the document, then have
another person merely review and certify the translation.
Use consistent email
address
If you send information
to your attorney via e-mail, try to be consistent with respect to the email
address you use. That is, avoid using more than one email address. By using a
consistent single address, you make your attorney’s job less complicated in reviewing
and looking for your previous e-mail. In addition, remember that email is not
secure. Therefore, you might want to avoid providing sensitive information such
as a social security number via email, but rather do so verbally or via fax or
regular mail.
Premium processing does
not gain you any cap advantage
Understanding the
limitations of premium processing is important, especially if you yourself will
be paying for it. In particular, a petition that specifies premium processing
gets no special treatment with regard to the cap. In other words, there
is no special set-aside, that is, no reserved number of cap spaces for premium
processing petitions. Put another way, only after a petition is counted
against the cap (assuming it even arrives in time) will its premium processing status be taken into account.
In general, the sooner
you can work following the petition filing, the more sense premium processing
makes. Conversely, the longer you must wait, the less sense premium processing
makes. If, for example, your employer is exempt from the cap, meaning that you
could work immediately upon approval, then you would want to consider premium
processing. Of course, you would need to make a financial calculation to
see if the approximately 1.5 months of time you save versus regular processing
(i.e. the 1.5 months of extra income) outweighs the extra $1225 fee for premium
processing.
On the other hand, if
your petition is filed on April 1, but you cannot work until October 1, then
premium processing does not benefit you financially. In this case, the
potentially faster time to a decision doesn’t allow you to work sooner. The
only potential benefit in this case is peace of mind.
Blue ink for signatures
Whoever signs any United
States Citizenship and Immigration Services (USCIS) form, such as the I-129
petition itself, the G-28 notice of appearance or the I-905 premium processing
request, should consider using blue ink. Because USCIS requires original
signatures, one in blue ink is less likely to be mistaken as a photocopied signature and
less likely to be questioned or rejected.
