Monday, November 4, 2013

H-1B pitfalls to watch

So, Barzini will move against you first. He’ll set up a meeting with someone that you absolutely trust, guaranteeing your safety. And at that meeting, you’ll be assassinated….Now listen: whoever comes to you with this Barzini meeting, he’s the traitor. Don’t forget that.

The prudent see danger and take refuge, but the simple keep going and suffer for it. (NIV) Proverbs 27:12

The classic 1972 movie The Godfather portrays the Corleones, a New York crime family headed by Don  () Vito Corleone, and depicts the transition in power from Vito to his youngest son, Michael. In particular, Vito has been concerned about the rival Barzini family, which has long been plotting against the Corleones. Perhaps knowing that his end is near, Vito counsels Michael on what to expect in terms of treachery from Barzini. On the DVD version, this dialog appears in scene 20, “I Never Wanted This for You.”

You may never be in a position to become head of the Corleone family, nor may you ever need to fear assassination. Nonetheless, pitfalls await you during your stay in the U.S., particularly with respect to seeking H-1B status. I am not saying that any of these pitfalls will absolutely doom your petition, nor am I saying that heeding everything I say below will guarantee approval. Still, knowing about such pitfalls may increase your chances of success in this regard. I strongly suggest you pay heed even if your company has an attorney that is preparing your petition. A mistake by that attorney could be far less serious for that attorney than for you.

Here, like Michael Corleone’s Barzini meeting, are things to beware of:

-          Does the Department of Labor recognize your employer’s EIN?
Before your employer can file an H-1B petition, it must file and receive a certified labor condition application (LCA). In order to file an LCA, the employer’s employer identification number (EIN) must be recognized by the Department of Labor (DOL) computer system. In other words, simply having a valid EIN from the Internal Revenue Service (IRS) might be insufficient, because the system of Department of Labor is separate from that of the IRS.

A delay in having a recognized EIN will delay the filing, and hence the receipt of a certified LCA, and thus will delay your H-1B petition filing. Such a delay could be fatal if as a result you miss the “cap full” date. For further information, you are welcome to visit

I strongly suggest that ensuring a DOL-recognized EIN be the first step of your H-1B process. This verification can never occur early enough.

-          Premium processing might be irrelevant in the event of a lottery
In previous years, USCIS has stated that petitions that request premium processing receive no special consideration in a lottery. Assuming they are truthful, and assuming the same applies in the upcoming filing season, you may wish to consider your reasons, if any, for requesting premium processing. You might want peace of mind. Or, you or your employer might be cap-exempt, and you simply want to start work as soon as possible. On the other hand, if your sole reason is to have a better chance in the lottery, you might want to reconsider premium processing, because it might not give you a better chance at all. In that case, you would simply be wasting money.

-          Make sure of the filing address
The instructions for the H-1B petition will contain the address to which your completed petition and other materials should go. Read those particular instructions carefully, because filing at the wrong location could result in a delay or even a denial of your petition.

In general, those who work in the “east” will send petitions to the Vermont Service Center, while those who work in the “west” will send instead to California Service Center. However, historically, those petitions from an employer which is cap-exempt have gone to California regardless of work location, and the same might be true in the upcoming season. Furthermore, the respective service centers may have multiple addresses, in particular a street-and-number address as well as a post-office-box address. Be aware that most if not all courier services, such as Federal Express, will deliver ONLY to a street number/name address, NOT to a post office box address.

Therefore, read the mailing address instructions carefully.

-          Early delivery may kill your petition
The H-1B cap already is full for fiscal year 2014, that is, the fiscal year that ends September 30, 2014. For this reason, anyone subject to the cap who wishes H-1B status may begin only on October 1, 2014 or later—that is, fiscal year 2015. Under H-1B regulations, filing may begin a MAXIMUM of six months prior to a requested start date, so that the earliest one may file for an October 1 date is April 1, 2014.

Therefore, a petition that arrives at USCIS prior to April 1, which request an October 1 start date, IS SUPPOSED TO BE DENIED. That is, such a petition must arrive on April 1 or later, but no earlier.

For this reason, don’t get “cute” with trying to save money with courier services, by asking for “second day” or “third day” delivery. Keep in mind that generally speaking, a “third day” delivery, for example, doesn’t necessarily mean the courier will actually deliver exactly on the third day from your dropoff. Chances are, it means only that the courier commits to delivery NO LATER THAN that third (or second) day. In other words, if you mail three days before April 1, specify “third day delivery,” and expect delivery on exactly April 1, you might be rudely surprised. Depending on how busy the courier is, it might end up delivering early, say March 30 or 31. In most cases, customers would be happy at an early delivery. In your case, though, early delivery kills you. Therefore, I recommend you “bite the bullet” (that is, put up with the extra expense of next day delivery) and mail only ONE day before April 1, and make sure you AVOID same-day delivery. Trying to be “cute” with second- or third-day delivery is what Americans call being “penny-wise and pound foolish.”

By the way, in previous years, when a lottery arose, USCIS has stated that they accept petitions during the first FIVE days of April. However, none of my clients has ever been happy with, or wanted, anything later than April 1 delivery, and you probably are the same way.

-          Submit duplicate copies of the petition
Even if you request change of status to H-1B (from, for example, F-1) rather than consular processing (whereby you leave the US, or are already outside the US, and receive actual H-1B visa stamp at a US embassy or consulate), you STILL need to be concerned with embassies or consulates. One day, you might need to leave the US while in H-1B status, and therefore would need an H-1B visa in order to return. For this reason, you should submit a duplicate copy of your H-1B petition, and mark it clearly as such. This duplicate petition, assuming your original one is approved, will go to the Kentucky Consular Center, a facility of the US Department of State, and there it will be scanned into a computer system accessible by embassies and consulates worldwide. Therefore, when you have your visa interview, the consular officer theoretically will have access to your petition.

-          Separate checks for the filing fee
Your petition may involve as many as three separate filing fees: a base filing fee, a fraud prevention fee and an H-1B training fee. In addition, certain employers who have “many” H-1B or L-1 employees are subject to a separate additional fee. In any event, I recommend that you submit a separate check for each filing fee, even though the payee will be the same—US Department of Homeland Security. Having separate checks reduces the chances of an arithmetic error in calculating the total amount of a single check, and thus reduces the chances of denial on that basis. Of course, you will need to verify that you have accounted for all relevant fees and that your checks are in the correct amount for each fee.

-          Do you need a license?
Generally speaking, if your H-1B occupation requires a license or certificate, then you yourself must have such license or certificate at the time your employer files your petition. However, if for some reason you are exempt from any such requirement, be aware that simply relying on the boss’s “say so” might be insufficient for the petition. Americans will say that simply having the boss’s say-so “won’t fly.”  That is, simply having the boss say, in a letter, that you are exempt might not satisfy USCIS, and as a result you might get a request for evidence (RFE), asking for more proof of why you are exempt.

Rather, if you are exempt, you are better off if you can supply official documentation as to the reason, for example, a state statute or regulation. In other words, try to submit such evidence with the initial petition, thus reducing the chances (and resultant delays) of an RFE.

-          Certified translations
In the event you submit a document that is not in English, you must submit with it a certified translation. You may, but are not required to, use a professional translation service. In fact, you may even do the translation yourself. However, at the least you will need someone else to sign a statement to accompany the translation. That statement will certify that the signer is fluent in English and the other language, and that the document is truly what the certification says it is.

-          Official transcripts
In many, if not all cases, you will need to supply a transcript of your school work. Be aware that such a transcript must be official. That is, it should come from the office of your university that maintains the transcripts (generally the registrar). It should also contain the insignia of that office and be signed. Note, however, that while the transcript should be official, it need not necessarily be original. That is, a photocopy or scanned version is acceptable so long as, of course, the copy is accurate. I never have received any request to submit an original copy of a transcript.

I hope this information helps you.

Now listen: whoever comes to you with this Barzini meeting, he’s the traitor. Don’t forget that.

This information does not constitute legal advice and does not create an attorney-client relationship. You are welcome to contact me, Calvin Sun, at 610-296-3947 or 215-983-3723, or via email at My avvo profile is at