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.

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  (总) 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.” http://youtu.be/fuWkcKbBQkg

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

http://yi2min2.blogspot.com/2013/01/is-your-h-1b-employers-ein-recognized.html

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 csun@calvinsun.com. My avvo profile is at http://www.avvo.com/attorneys/19301-pa-calvin-sun-1935383.html

Make Sure About Your H-1B “Trapeze”

You probably have seen a flying trapeze act if you have ever been to a circus. Performers swing from a trapeze (that is, a swing) high above the floor. In particular, they will use multiple trapezes to move from one platform to another. To do so, of course, they must coordinate the trapeze they are on with the one they intend to change to. That is, at the time they let go of the first trapeze, they must make sure that the next one is right by them so they can grab it. Otherwise, they will fall.

This same situation pertains to obtaining more than three years of H-1B time. A person can have as many as six years of H-1B time, but any such petition for H1B status is limited to a maximum of THREE years. Therefore, a person who wishes more than three years must have an employer file a second “extension” petition later, as the time on the first petition is drawing to an end.

For purposes of the following discussion, assume that you have never had H-1B status prior to what I describe below.

Most of the time, the “second trapeze” of the H-1B extension already is waiting for you. For example, if your first status was with a cap-subject employer, then you would have been counted under the cap for that petition, so you would not be counted a second time. This cap-counted situation applies regardless of whether you remained with your same employer or whether you sought a new one. Furthermore, if your second employer itself is cap-exempt, you similarly would not have a cap problem.

You will need to be careful, however, if your first H-1B status is with a cap-exempt employer. Yes, you would have avoided, at the time of filing, many of the troubles your friends may have faced with their cap-subject petitions. They, for example, probably had to worry about whether their petitions were prepared and filed in time, whether they needed to face a lottery and whether or not they were selected in the lottery. However, if they got through those things, they generally would be “home free” with respect to the extension petition, because they have dealt with and conquered the cap problem already. They are like the person who had chicken pox as a child, and so need not worry about it later.

You, on the other hand, did not face these problems the first time, but you might face them the second time, i.e. with the extension. That is, you are like the one who still risks chicken pox through not having it as a child. Therefore, to reduce risk and the chances of problems, you might want to assess your situation and talk with your employer. Having assurance from your employer about continued employment would be helpful. Alternatively, having a second potential cap-exempt employer also would be helpful.

The WORST situation for you is to be caught off-guard near the end of your cap-exempt H-1B time, with no cap-exempt possibilities, and with the cap at that time already full. In this case, you will be leaving your current trapeze, but no second trapeze might be waiting for you. In this case, put another way, now you are facing your chicken pox.

This situation is occurring right now with a client who came to me recently. In 2012, before she knew me, she began H-1B status with a cap-exempt employer, and that status will end in the summer of 2014. The employer had made clear that it would offer only initial H-1B status, and no extension. However, the attorney who handled that petition apparently (and if so, then in my view, irresponsibly) never told her the implications of the summer ending date. As you probably know, the cap already is full for fiscal year 2014, that is, the year in which her initial H-1B is to expire. In fact, the cap filled up during the first five days of April 2013, the earliest time one could file to begin work October 1, 2013, that is, the first day of fiscal year 2014. At the present time, therefore, filing a cap-subject petition that would allow her to begin work in the summer of 2014 is impossible.

Be careful of this situation, if, like this client, your initial H-1B is at a cap-exempt employer. If you fail to find a cap-exempt status for your extension, you may even need to end your first H-1B time early, in order to have an October 1 start date at a cap-subject employer. In turn, in this case, an October 1 start date would require an April 1 filing date.  As you can see, careful planning and timing is critical. This process may be hard, but it might be the only way that you can begin your extension in time to avoid a cap problem.

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

Don't Get Dog-bit

Being bitten by a dog is rarely pleasant, but it is something I need to discuss.

A guy (call him Guy 1) sees another guy (call him Guy 2) with a dog. Guy 1 asks Guy 2, “Does your dog bite?” Guy 2 says, “No.” Guy 1 reaches to pet the dog, which promptly bites him on the hand. Shocked, Guy 1 shouts to Guy 2, “You said your dog doesn't bite.”

Guy 2 responds, “That isn't my dog.”

I thought of this old American joke the other day, after getting a call from someone who wanted answers to some green card and F-1 questions. After I explained arrangements, he emailed back the next day, saying that he found answers on the Internet and therefore didn't need my help.

I responded that I hoped his sources and his information were correct.

However, after thinking some more, I realized that for this person, simply having correct information was not enough. That information had to actually apply to the person, that is, it had to be relevant. Otherwise, this person would be like Guy 1, who received correct information (i.e. that Guy 2’s dog did not bite) but for whom that information was irrelevant (because the dog by Guy 2 was not Guy 2’s dog at all).

You probably have done much searching on the Internet for information, and if so, I hope your information is correct, particularly if it relates to immigration. However, as with the person who called, make sure that your information—even if it is correct—actually applies to you. Everyone's situation is different. Your green card options and waiting times depend, for example, on (among other things) where you were born, what type of degree you have and whether your work benefits the national interest. Your H-1B options depend on whether or not your employer is exempt from the cap, and whether you yourself might be exempt, even though your employer isn't.

If you care only about the correctness of your information, and ignore its relevance, you could end up like Guy 1: dog-bit.

*************************************

You are welcome to contact me at csun@calvinsun.com, 215-983-3723, 610-296-3947. This information does not constitute legal advice.

The dangers of using the term "H-1B transfer"

A few days ago, a client asked about changing jobs while in H-1B status. He asked if, when changing from employer A to employer B, he needed to file a new petition, or whether he could simply "transfer" his H-1B. 

His question made me wonder if he understood the requirements involved.  In particular, he seemed to think that changing H-1B jobs required no new filings or petitions. 

This understanding is incorrect. For this reason, I strongly recommend that you avoid talking about "transferring" H-1B.  An H-1B petition is specific to a particular employer and particular job. Therefore, that petition has no relevance with regard to a different employer. That is, the new employer will have to file a new petition for that employee and show that the employee and job do qualify for H-1B status.

On the other hand, changes in the immigration laws in recent years DO provide for "portability" of H-1B between jobs and employers. In a future post, I will talk about portability, and times you should consider or else avoid it. 

Understanding the OPT STEM extension

If you are studying in the US in F-1 status, you probably know about optional practical training (OPT). It is normally a one-year period that follows the completion of your academic program, during which you may work in a job related to your field of study.

You also may have heard that certain F-1 students may extend this one year by an additional 17 months, thus giving them a total of 29 months of OPT time. In this blog post, I will discuss important aspects of this available extension of OPT time.

Such an extension is commonly called a “STEM” extension, because it is available for students who study science, technology, engineering or mathematics. In addition, the employer must be enrolled in e-Verify, a special system that determines employment authorization of potential employees.

One important reason someone might elect such an extension is to give themselves an additional chance at H-1B status, should they fail to qualify during their regular one-year OPT. Or else, a student simply might want to have more experience in the job in the U.S., before leaving the US and not wishing to receive H-1B status.

Regardless of the reason, here are some things to watch for with regard to the STEM extension:

-          Avoid confusing the OPT STEM extension with the H-1B cap gap extension

These two extensions, while in some cases are related, nonetheless are separate concepts. The OPT STEM extension deals with making your OPT period longer. The H-1B cap cap extension provides a way for you to remain in status and possibly maintain work authorization between the original end of your F-1 status and the beginning date of an H-1B cap-subject job. A person can receive both extensions, neither extension, or one but not the other.

-          Avoid these INCORRECT ways to determine your eligibility

The following methods of determining eligibility are INCORRECT:

o   Looking solely at the name of your field of study

If your field of study contains one of the STEM subject names, the chances are high that you are eligible. However, this situation does not always hold. For example, not all types of engineering might really be STEM eligible.

o   Basing your conclusion on your type of degree

In the same way, do not automatically conclude that you are automatically eligible because your degree says “of Science.” Conversely, do not automatically despair that you are ineligible because your degree says “of Arts.” These degree names are determined by your institution, and need not correspond to your actual field of study. In fact, in some institutions, you might be able to select whether your degree is “of Arts” or “of Science.”

-          Follow this CORRECT way to determine your eligibility

To truly determine whether or not you are eligible for the OPT STEM extension, consult the top of page 3 of your I-20. There, you will see the name of your field of study, and following it will be a number, probably with a decimal point included. This number is called your “classification of instructional program” (CIP) code. To determine whether you are OPT STEM extension-eligible, compare this number with a table of STEM codes maintained by U.S. Immigration and Customs Enforcement (ICE). At the web site www.ice.gov, perform a search of “STEM” to find a spreadsheet or web page of eligible codes.

A few years ago, a friend, who received a Master of Arts degree in environmental science, told me she was upset about not being eligible for the STEM extension. She based her idea on the “of Arts” degree she received. After I told her the above correct way to check, she did so, and discovered she WAS eligible. She was so happy with me that she bought me a Starbucks.

If you too are so happy with this information that you wish to do the same, I will not be mad at you. In any event, I hope this information helps you.

You are welcome to contact me with questions. Please remember that this blog post, as with others, does not constitute legal advice.

csun@calvinsun.com
610-296-3947
215-983-3723

If you are driving a car in the U.S.

If you drive or plan to drive a car in the U.S., here are some things to consider. Please note that this blog entry is not intended to be an exhaustive guide, but merely to remind you of things you yourself need to check. This blog entry also is not legal advice. Driving and automobile laws vary from state to state, and may vary even across different cities in the same state.

When confirming requirements, you are better off checking the official web site of your state transportation department, bureau of motor vehicles, or similar state agency. Be careful if instead you are relying on message boards or blogs for official information.

Driver licensing

You will need a license for yourself to drive a car. Each U.S. state is supposed to honor driver licenses of any other state. Therefore, you do NOT need a separate driver license for each state you plan to drive in. Your state might also honor an international driver license, for at least a limited time if not indefinitely.

In any event, be aware that the validity period of your license, as well as any other requirements, may differ from those of U.S. citizens. Here, for example, is a chart from the Pennsylvania Department of Transportation:  http://www.dmv.state.pa.us/pdotforms/fact_sheets/pub195nc.pdf

If you need to take an actual road test in order to receive your license, know how your state or location does so. Some states or locations will test you on “real” streets. Others will test you on a specially constructed range. Or, still others may use a combination. If all or most of your test will be on a range, find out about the possibility of practicing on that range prior to your test, during off-hours. One such center is in Frazer, PA, in Chester County. I have seen cars on their range as late as 9:30 pm, long after their business hours are over.

Most likely, the car you use for a driving test will need to have proper registration, insurance and inspection. More on these topics below.

Vehicle requirements: insurance, inspection and registration

In addition to having, yourself, a valid driver license, your car must meet certain requirements. In general, states require that cars have insurance, be inspected and be registered. Please note that these requirements generally are separate and independent of each other.

You almost certainly will need to carry automobile insurance for your car. When you complete the insurance process and get a policy, the insurance company most likely will send you a document to prove that you have insurance, and most if not all states will require that you be able to produce this document upon request by a law enforcement officer or after an accident.

Your car will probably need to be inspected. That is, an authorized person will certify that your car meets certain minimum safety requirements, such as functioning headlights and horn, sufficient tread in your tires and other matters. In some states, private repair facilities will do this inspection. In others, the state will operate facilities. If you are in a populated area, your car also might have a separate test for exhaust emissions. Once your car passes an inspection, you probably will have a sticker placed on your windshield.

Your car will need to be registered with the state agency that deals with motor vehicles. You probably will need to supply the license tag number and possibly the title number, as well as information on insurance. After you register, you should receive a card to that effect. You also may receive some sort of sticker to place on your license plate or on your windshield. Please be aware that in certain places, motorists have had their registration stickers stolen from their license plates. The thief usually does so by actually cutting away the part of the license plate that holds the sticker.

Your registration and inspection stickers will probably show a month and year on them, to indicate when they expire. Having an expired sticker could result in your receiving a warning, or worse, a violation notice from a police officer. In some places, having such expired stickers, or lack of insurance, even could result in the confiscation of your car. Therefore, please be sure to have current stickers and insurance cards.

Other

I recommend you carry a set of battery jumper cables (also known as “booster cables”), particularly if you drive in places with cold winters. In such places, you have a greater risk that your battery will lose power and not be strong enough to start your car. In such cases, jumper cables, when attached to another car with a properly functioning battery, will allow you to start your car by using power from the battery of the other car. Such cables will come as a pair. One cable will be red (the “positive” cable), the other will be black (the “negative” cable). To help me keep the colors straight (positive red, negative black), I imagine that a LONG set of cables extends fromPuerto Rico to New Brunswick.

A flashlight can be a lifesaver. I recommend the “Mini Maglite,” available in many stores including Wal-Mart. It is renowned for its reliability and quality. In addition, people, particularly women, can carry it not only to provide light, but for self-defense. Its hard casing makes the Mini Maglite a good weapon for striking an attacker.

You also might want to purchase and have in your car a tire pressure gauge. The most convenient ones are those shaped like a pen. The tire gauges you might see at a service station, if you see any at all these days, often are unreliable.

I hope this information is helpful.

Calvin Sun, attorney at law 孙自成，律师
Immigration and nationality law

csun@calvinsun.com
610-296-3947