H-1B Filing Tips for FY2019
With less than a month before H-1B petitions are being accepted by USCIS, we have compiled a list of filing tips to make this H-1B season as smooth as possible.
Overview of H-1B:
The H-1B program allows companies in the United States to temporarily employed qualified foreign workers in occupations that require specialized knowledge and a bachelor’s degree or higher in the specific area of expertise. The H-1B cap petition is subject to a congressionally mandated numerical limit of 65,000 each fiscal year (also known as the “regular cap”). An exception to this cap are beneficiaries who have earned a U.S. master’s degree or higher (also known as the “advanced degree exception”) until it exceeds 20,000.
Historically, USCIS has always received more H-1B petitions than required for the actual cap count. In order to select the petitions for processing, the ‘H-1B lottery system’ is used where USCIS runs a computer generated random selection process to choose petitions that would fall within the numerical limit.
If your petition is not selected for lottery, a rejection letter is sent and the filing fee is returned to the employer.
• Complete all sections of the I-129, including H supplement and DC supplement;
• Ensure required fees are submitted;
• Original signatures are required, preferably in black ink, are required ;
• Ensure LCA properly corresponds to the requested position;
• Correct spelling of name, proper format of DOB (XX/XX/XXXX), country of birth, I-94 number;
• Approval Notices for change of status or extensions;
• Recent pay records should be submitted;
• A copy of the H-1B petition should be provided if the beneficiary will be applying for a nonimmigrant visa abroad; If you receive an RFE or NOID, then you should also submit a copy of your response;
• Clearly label all H-1B cap cases on the top margin of Form I-129 with red ink:
o Write ‘Regular Cap’ on petitions subject to the 65,000 regular cap;
o Write ‘C/S Cap’ on Chile/Singapore H-1B petitions;
o Write ‘U.S. Master’s’ on petitions subject to the 20,000 exemption for beneficiaries with U.S. master’s degrees or higher.
Common Requests for Evidence (RFE):
Common RFE requests include:
• failure to provide availability of work throughout the requested period;
• failure to provide evidence of the H-1B specialty;
• failure to provide maintenance of status;
• failure to provide evidence of recapture dates;
• failure to provide evidence that LCA corresponds to the position; and
• failure to evidence legitimate Employer-Employee relationship.
Frequently Asked Questions:
1. When can I file an FY 2019 H-1B Cap-Subject Petition?
USCIS will begin accepting H-1B petitions subject to the FY 2019 cap on April 2, 2018.
2. How long is the Lottery Period?
The lottery period begins on Monday, April 2, 2018 and ends on Friday, April 6, 2018.
3. Will Premium Processing be suspended?
USCIS does not anticipate suspending Premium Processing at this time. The 15-day processing period for Premium Processing will begin on a set date to be released by USCIS.
4. Can the LCA be a photocopy?
Yes, the LCA can be a photocopy. It must be signed and dated upon receipt by the Employer and before submission to USCIS.
5. What are the filing fees?
• The base filing fee for the I-129 Petition is $460
• American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee:
o $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
o $1,500 for employers with 26 or more full-time equivalent employees, unless exempt
• Fraud Prevention and Detection Fee
o $500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers. (This fee does not apply to Chile/Singapore H-1B1 petitions.)
Given the limited number of H-1B visas available, it is crucial that the above filing tips and tricks are followed carefully. For additional questions or inquiries regarding specific H-1B filings, please contact our team of seasoned immigration attorneys at Nguyen and Chen, LLP.