Time to Prepare for H-1B Cap Filing!

The annual FY2019 H-1B cap filing season is almost here.  This year, it is more important than ever for applicants to start early and plan things right, in light of last fiscal year's policy changes such as suspension of premium processing services, Level I wage challenges and case processing delay.  Despite tightened adjudication standards, early evaluation of the facts, careful planning, and providing sufficient supporting documentation are still key to a successful H-1B case. 

While the memories of last year's requests for evidence are still fresh on our minds, we must also start preparing for the upcoming H-1B filing season that begins on April 1, 2018.  Because April 1 falls on a Sunday this year, USCIS is expected to begin accepting H-1B filings on Monday, April 2, 2018.
April 2 may seem far away, but it is actually not.  There are several key stages to properly preparing for an H-1B petition, and one may encounter delays and issues in each stage.  Hence, our practice is to try to get things done as early as possible to ensure timely and accurate filing of petitions for our clients.
Case Evaluation:  The initial evaluation is the most important phase of the case.  All information and documents from the employer and applicant must be carefully reviewed and evaluated to confirm eligibility.  Is the employer qualified to file an H-1B petition?  Is the position a "specialty occupation"?  Does the employee meet all job requirements?  Is it a master cap case or otherwise cap-exempt? Other issues to be considered include: applicant's visa status, wage level, employer-employee relationship, travel plans, premium vs. regular services, cap-gap extension, etc. 
Documentation/Information Collection:  Once eligibility is confirmed, all required documents and information need to be collected as soon as possible.  Some applicants' qualification documents need to be translated or evaluated.  Employers may also be required to provide documents to prove their corporate identity, if they are filing H-1B petitions for the first time. Due care must be exercised here when handling documents. Incomplete or incorrect information could lead to delay or even denial of the H-1B petition.
Preparation of H-1B Petition:  The next step is to prepare for the H-1B petition.  The process starts with the preparation of the Labor Condition Application (LCA). Since there are sometimes glitches with the LCA online system, it is highly advisable to file the LCA well in advance.  The employer must also fulfill certain related documentation and posting requirements.   The H-1B petition (Form I-129) must also be prepared, along with the H-Supplement and Data Collection forms. The employer support letter is another important document, which needs to carefully drafted.  All documents must be reviewed and confirmed before signing. 
Final Review and Submission:  After the application documents have been prepared, signed, organized, and packaged according to USCIS standards, it is time for final review and submission. It is also important to double-check the correct filing address and application fees (base fee, fraud fee, ACWIA fee, premium fee, etc.)  Overnight delivery services with tracking mechanism should be used.  A duplicate set of application should be submitted if overseas visa stamping is desired.  
Visa Lottery:   This is also the nerve-racking phase. Clients would be calling us daily asking for updates.  In previous years, the visa lottery was usually completed in early to mid April. Last year, data entry was not completed until May 4th.  Receipt notices - confirmation of one's selection in the lottery - would be mailed out gradually in the following weeks.  Cases not selected in the lottery would be returned at the end.  

Request for Evidence:  Although USCIS may outright deny an H-1B petition, the more common practice is to issue a formal Request for Evidence (RFE) with problematic cases.  Employers should be extra careful when responding to a RFE, as this is the last opportunity to provide evidence and present arguments before USCIS makes a decision.

Even after approval, the employer and employee must continue to follow the H-1B regulations.  Any material changes must also be reported to the government through amendments.  The parties should also pay attention to any policy changes.

The current red-hot economy means that competition for the limited H-1B visa numbers will be intense.  Interested foreign workers and employers should take actions immediately to ensure that a timely and complete H-1B petition can be filed by April 1st.

For more information about the application steps, follow this link or call our office to schedule a legal consultation at 732-632-9888.

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We serve clients from all countries and walks of life from investors, professionals, skilled labourers, and people wishing to join their family members in the USA.

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1-732-632-9888

Paul Szeto LLC.
190 State Route 27
No. Edison, NJ 08820 USA
info@szetolaw.com

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Bar Admissions:
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