An early H-1B filing might mean less than full three years of H-1B time

Give up my daughter. That’s the price you pay for the life you choose.

The 1990 movie “The Godfather Part III” closes out the story of the Corleone family, and focuses in particular on the attempts of Don Michael Corleone to become legitimate, and on the transition in power from Michael to his nephew, Vincent. Treacherous enemies and an assassin are threatening Michael, who by now has become older and weary. But Michael has been concerned over a romantic relationship between Vincent and Michael’s own daughter, Mary (who therefore of course is Vincent’s first cousin). For this reason, Michael demands this ultimate choice from Vincent, before the latter can inherit command of the family.

You may never have to make this same choice between love for a first cousin versus control of a family. However, if you are seeking, for the first time, cap-subject H-1B status, you WILL have to choose between an early filing date for the petition, versus being able to have a full three years of H-1B time with that petition. 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 you 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, 2014.  Doing so would allow you an H-1B period of October 1, 2014 to September 30, 2017.  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, 2017.  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, 2014, you would need to submit your LCA no earlier than April 1, 2014.  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. In fact, as you probably know, in 2013 the cap ran out in the first five days of April.

If you are like my clients, you are unlikely to want a full three years of H-1B time, if having it means a late filing. In other words,

"Give up the full three years. That's the price you pay for the early filing you choose."

You are welcome to contact me at csun@calvinsun.com, 215-983-3723, 610-296-3947. This information is not legal advice and does not create an attorney/client relationship.