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APRIL 6, 2019

LEGAL NOTES

Cap-Subject H-1B Petitions for Fiscal Year 2020

by Atty. Reuben S. Seguritan

The H-1B program allows companies located in the US to hire foreign nationals for certain occupations which require a bachelor’s degree or higher. The jobs may be in the science, engineering, teaching, health and legal professions. The H-1B visa is a nonimmigrant temporary work visa.

There are 2 caps, namely regular cap and the advanced degree cap. The quota for the regular cap is 65,000 petitions in a year. The annual quota for the applicants with a US advanced degree is 20,000.

Since it is anticipated for there will be a lot more petitions than the USCIS can approve for the 2020 fiscal year, a lottery will be conducted.

There are important things to remember when filing the H-1B petition in order to ensure that it is accepted and hopefully approved by the USCIS. First, make sure that the H-1B petition is filed from April 1 to April 5, 2019; Second, use the correct edition of form I-129 Petition for a Nonimmigrant Worker.

Another important thing to remember is that all payments through check or money order must be dated, signed and in the correct amounts. The current base filing fee for the I-129 petition is $460. There’s an additional ACWIA fee of $750 or $1,500, depending on the number of full time employees and $500 fraud prevention fee. The payee must be indicated as “U.S. Department of Homeland Security”. It is advisable to have individual checks for each filing fee. This is to make sure that in case one of the amounts is incorrect, the application pertaining to that incorrect filing fee will be denied but not the rest. For example, if the amount for the premium processing fee which is $1,410 is incorrect, the petition itself can proceed but it will not be under premium processing anymore.

Premium processing will be offered in a two-phased approach during the FY2020 cap season so USCIS can best manage the premium processing request without fully suspending it as in previous years. The first phase will include FY2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY2020 cap-subject petitions.

A lot of times the petitions are denied because it was filed at the wrong office of the USCIS. There is a list on the USCIS website on uscis.gov which enumerates the filing addresses for I-129 petitions.

The form I-129 itself must be completely filled out and signed and dated by the applicant company. Make sure that all of the required information is provided and all of the boxes are appropriately checked. If an item is not applicable, “N/A” should be placed. The earliest start date that the foreign national can have is October 1, 2019. Furthermore, the petition end date should match the date on the Labor Certification Authorization (LCA) expiration. Other information must also match the LCA. These are the title, salary, and worksite location.

If a US degree is required for the job or title, it should be awarded by March 31, 2019. However, the USCIS has allowed H-1B petitions for foreign nationals who have completed all requirements for a US degree but the degree has not been conferred yet. For these applications, documents must be included to show that the foreign national has completed all degree requirements. These official documents must be issued by the Dean or Registrar or Department Head of the school. The foreign national can also be granted the H-1B visa even if he is not currently completing a US degree, as long as he can show that the education and/or experience that he already has is equivalent to a US bachelor’s degree.

A foreign national who is in the United States under the F-1 nonimmigrant student visa will be able to remain in the country if he is currently working on Optional Practical Training (OPT) and has timely filed a cap-subject H-1B petition and change of status request. Students whose OPT was valid at the time of filing the H-1B petition will remain in valid status and can continue to work through September 30 while the petition is pending or if it is approved. If the student’s OPT has expired at the time of the H-1B filing but he is still in a valid grace period, he will receive an automatic extension of his duration of status (D/S) admission. However, he can not extend his OPT anymore because it has already expired.

Lastly, the USCIS will deny all multiple petitions filed by the same employer for the same foreign national. However, the USCIS will accept petitions filed by related employers (parent company and subsidiary) for the same person for as long as they are for different positions and based on the business needs of each company and not duplicate petitions.

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REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at (212) 695 5281 or log on to his website at www.seguritan.com

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