Monday, June 25, 2012

Reflections on the 2012 H-1B filing period

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.