H-1B: early filing date vs. full three years of status--cannot have both

If you are seeking H-1B status, and you are subject to the cap, then you may want to know that

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 your 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. As yu may know, the LCA is the document in which your employer certifies that you are being paid at least the prevailing wage for your job and your geographic location.

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, 2013 (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, 2013 to September 30, 2016.  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, 2016.  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, 2013, you would need to submit your LCA no earlier than April 1, 2013.  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.

Your employer or attorney may not even offer you this decision, but knowing about these options still is important for you.
(note: this material previously appeared as part of a larger post, but I thought the topic was important enough to stand on its own.)