Addressing Frequently Asked H-1B Questions
H-1B season is once again upon us! H-1B petitions for the U.S. government’s 2016 fiscal year, which begins Oct. 1, 2015, should be filed by April 1, 2015. For fiscal year 2015, USCIS received approximately 172,500 cap-subject petitions. USCIS anticipates the volume of H cap petitions for fiscal year 2016 to be just as high, if not higher, and will far exceed the annual quota of 65,000 regular cap petitions and 20,000 advanced degree cap petitions.
Berardi Immigration Law assists numerous clients each year with the preparation and filing of these petitions and encourages any employers who wish to be ready to file by April 1 to start the process immediately. Below we will answer some of the most frequently asked questions regarding the H-1B category:
What is the H-1B category?
The H-1B category is used by some U.S. businesses and other organizations to employ workers in specialty occupations. Specialty occupations require theoretical or technical expertise in a specialized field. For example, architects, engineers, computer programmers, accountants, college professors and doctors may all qualify under this category.
When must cap-subject H-1b petitions be filed?
USCIS will receive petitions until it determines it has received more than the maximum allowed under the H-1B cap. The regulations state that if USCIS receives a sufficient number of petitions to reach the numerical limit during the first five business days in April, USCIS will conduct a random selection “lottery.” If there is a lottery for fiscal year 2016 (which is expected based on last year’s numbers and current projections), USCIS will issue an announcement. H-1B cap-subject petitions should be submitted for delivery to the service center with jurisdiction no earlier than April 1, 2015.
Can multiple identical petitions be filed for the same foreign national?
No, multiple identical petitions cannot be filed for the same foreign national. USCIS will either deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund filing fees for duplicate or multiple H-1B petitions. However, the rules do not prevent related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same foreign national for different positions, based on a legitimate business need. In this scenario, evidence or an explanation describing why the petition is not a duplicate must be included.
Will premium processing increase the chances of making the H-1B quota?
No, filing an H-1B petition via premium processing will not increase the chances of being chosen in the lottery. Due to filing volume, USCIS usually delays the 15-day premium processing window. For fiscal year 2015, premium processing began on April 28, 2014. However, one benefit of filing a cap-subject H-1B petition under premium processing is that a receipt notice may be issued faster than if filed under regular processing. Therefore, the petitioner and applicant may learn more quickly whether or not the petition has been chosen in the lottery.
What if an applicant’s U.S. degree will not be awarded by March 31, 2015?
USCIS has approved H-1B petitions for foreign nationals who have completed all requirements for a U.S. degree, but the degree has not yet been conferred. In this case, evidence should be submitted to confirm that the foreign national has completed all degree requirements from an official at the school who is qualified to provide that information, for example a dean, registrar or department head. It is important to note that USCIS will not accept letters prepared by unauthorized employees at the school stating that the student has completed all required coursework, when in actuality there are still examinations or papers to be completed after April 1. USCIS will also deny petitions arguing that a foreign national will have their degree by Oct. 1 (the H-1B start date).
Will an F-1 nonimmigrant student be able to remain in the U.S. if his or her F-1 status expires before Oct. 1, 2015?
On April 8, 2008, the Department of State issued a regulation extending the authorized stay for F-1 students who are currently working using Optional Practical Training and have timely filed an H-1B petition and change of status request. Students whose OPT was valid at the time of filing the H-1B petition, but for whom the OPT will expire before Oct. 1, will remain in valid status and can continue to work through Sept. 30 while the petition is pending at USCIS or if it is approved.
A student who completed his or her post-completion OPT and subsequently was in a valid grace period at the time the cap-subject H-1B petition was filed will receive an automatic extension of his or her D/S admission. However, employment authorization is not extended because it is already expired. The cap gap regulations do not serve to reinstate or retroactively grant employment authorizations.
If you are an employer or employee looking to file H-1B status, please contact one of our immigration attorneys today!