Category Archives: H-1B

FY 2018 H-1B Quota

H-1B quota season is here! We anticipate a very busy quota season and are working to ensure your cases move swiftly and easily. There are two options:

1) Regular/Full Filing: Full case documentation at full price.

2) Bare Bones Filing: No project documentation at a reduced rate; RFE likely.

Please note that you must choose one of these for all quota-subject filings.

REGULAR/FULL FILING

These are cases that include full project information and supporting documentation. They offer the best chance at approval, if accepted for processing, without RFE. However, given the high rate of rejection at the lottery stage (the majority of non-Master’s cases last year were rejected), these cases involve higher up-front attorney fees and labor to create a case that may never be processed by USCIS.

We will not accept Full Filing cases after March 23, 2017.

The rate to respond to an RFE with a Full Filing case will be your normal RFE rate. If you choose to expedite any individual RFE response, additional charges would apply. Overall, these are effectively the same cases you file throughout the year, on similar terms.

BARE BONES FILING

With the exception of individuals with U.S. Master’s degrees, only a fraction of the quota cases submitted are likely to be picked up in the lottery.

Given the high rejection rate, it does not make sense to put extensive time and energy into cases that likely will not be picked up in the lottery. Bare bones cases are streamlined and offered at a reduced price. If these cases are accepted under the lottery, remaining documentation can be submitted at the RFE stage. Up-front costs are lower, but the RFE (which should be expected, for these cases) will be billed at a higher price. The objective is to minimize your costs on cases that are NOT picked up in the lottery.

For these cases, we will not review or include any project-specific documentation. If you want to submit project-specific documentation and information with a case, please opt for a full filing, at full price.

IMPORTANT, PLEASE READ: Although we will NOT be including project information with bare bones filings, it is imperative that there be a project in place and that you provide project information for each of these cases.

Projects must have a start date on or before 10/1/2017 and be in place BEFORE the case was filed (i.e. – April 1, 2017). Only after USCIS accepts cases under the lottery will we accept and review supporting project documentation for the RFE stage.

Please note also that bare bones filings are generally limited to professions in systems analysis, programming, and software development. Petitions for jobs in sales engineering, accounting or other fields may not be acceptable for preparation under the bare bones model.

No attorney fee refunds or credits will be issued for cases not picked up in the H-1B lottery.

To Start a Bare Bones Case:

To initiate a bare bones H-1B petition, we need the following “initial information”:

• Quota-Specific Employer, Employee Questionnaires and One Time Employer Questionnaire filled out
• Job Title
• Exact Work location(s) (client address, and/or in-house)
• Confirmation that you want to file the case under the ‘Bare Bones’ offering
• Non-blank Passport pages
• Beneficiary’s status information
• Beneficiary’s educational credentials
• Filing fee checks, made out to the “U.S. Department of Homeland Security”
We will not consider the case ‘received in full’ until we receive all information/documentation listed above. Case pricing is assessed at the time the case is ‘received in full’.

FOR ALL QUOTA FILINGS: NO ATTORNEY FEE CREDITS OR REFUNDS WILL BE ISSUED ON CASES NOT ACCEPTED BY USCIS UNDER THE QUOTA.

Note, though: USCIS will not cash your filing fee checks on cases not accepted under the quota.

USCIS will accept cases under the quota over a range of days this year, as they have in years past. In previous years, this range has been the first five business days of April. Once that range is defined, cases received by USCIS during that range are treated equally for purposes of inclusion and selection under the lottery – there is no advantage to filing on the first day, once a multiple-day range for case acceptance has been defined. Accordingly, we file all cases on a first-in first-out basis.

In order to start a quota case, please send documents to our quota intake email quota@sgimmigration.com

We will be filing H-4 petitions after the lottery for cases picked up on the lottery where there are dependents in the U.S.

Again, please contact us directly if you should have any questions on the quota process, pricing, or case types.

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H-1B REQUESTS FOR EVIDENCE: The Basics

Requests for Evidence are issued by the USCIS service center where the petition was filed.  A Request for Evidence (RFE) may follow virtually any type of petition but the scope of this article will focus on requests for evidence on an I-129 Petition for an H-1B Nonimmigrant Worker.

First and foremost, the best way to avoid getting the dreaded RFE is to include enough documentation with the original H-1B petition to keep from getting one!  For this reason, we recommend working with an experienced immigration attorney.  Although the I-129 petition form seems simple enough to complete at first blush, working with an experienced immigration attorney will help to ensure not only that it is completed properly, but that the correct additional evidence is included, and is the best opportunity for getting an approval.  Most immigration attorneys agree, however, that there is no guarantee that even the most thorough I-129 petition will get approved without an RFE.    An RFE is issued if the USCIS feels that it has not received sufficient information to approve the case as it was originally filed.

Sample of an RFE cover page

Sample of an RFE cover page

An RFE may be issued on an I-129 that seeks a new H-1B classification filed in the quota, i.e. a new petition, seeking to grant a beneficiary H-1B status, as well as petitions that seek to:

  • Extend H-1B status
  • Transfer (change of employer)
  • Transfer and extend
  • Amend (changed project/position), and amend & extend

 

 

Time frames

Once a case is received by the USCIS, the service center will normally process the H-1B petition and come to a decision within approximately 5-8 months—which will result in an approval, a denial or an RFE.  If the petitioner elects to have the H-1B petition processed under premium processing, the time frame will be expedited and something will be issued within 15 calendar days.  Premium processing involves an additional fee but the fee will be refunded if the USCIS fails to act within the 15 day period.  There is always the danger with premium processing is that an RFE will be issued just to make the clock stop.  Once an RFE is issued, the clock stops until a response is sent back to USCIS.

Even though an RFE may not seem like good news, it is best to think of it as an additional opportunity to secure an approval.

Definitions

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers who have the equivalent of a US Bachelor’s degree to work in a “ specialty occupation”. An H-1B visa is granted for a period of up to 3 years, and is renewable once for an additional period of 3 years, for a total of 6 years.

A “specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Immigration and Nationality Act (INA) §214(i)(1)(A)-(B).

Two Most Common H-1B RFE Issues

The two most common types of Requests for Evidence on H-1B’s, are (1) Is this job a Specialty Occupation? And (2) Does the employer have control over the employee?

From the above definition of specialty occupation, two major issues arise.  First, whether the position itself qualifies as a specialty occupation position (one which requires that type of specialized education/knowledge), and second, whether the beneficiary qualifies for the position, in other words, does his education prepare him to work in that type of occupation, or does he have some work experience or training to qualify him.

The next additional common H-1B RFE issues include whether the employer is the actual entity which has the right to direct and control the person’s work, and arises most often in the context of IT professionals who are placed at a client site for temporary assignments.  The USCIS seeks proof that the employer who pays them has the right to control and supervise their work, even though they are not working at the employer’s office.

In order to address these concerns, we have developed a list of possible documents and proofs to demonstrate the appropriate level of control.  Our goal is to work with the employer and employee in question, and prepare the documents which are needed in order to assure the USCIS that the position qualifies for an H-1B.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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STEM OPT Extensions Update

In view of the recent changes announced by USCIS to the rules for student work authorization, we recap some options especially geared for international  students who are intending to stay and work in the US using the H-1B visa.  Here are some guidelines on possible extensions for STEM (Science, Technology, Engineering, Math) graduates.

Optional Practical Training (OPT)

  • As of May 10, 2016, STEM graduates will be eligible for a 24-MONTH extension of the Optional Practical Training (OPT), knows as a “STEM Extension.”  
  • Those with previously issued 17-month STEM extension can apply for an additional seven month extension between May 10 and August 8, 2016, IF they have at least 150 days remaining on their current STEM extension.  See the DHS page about STEM OPT for more information.
  • If you have an H-1B pending under the quota and are also eligible for a STEM extension, we recommend applying for it, even if your H-1B is picked up in the quota and is pending for the following reasons:
    • If your H-1B is denied, then you will be able to continue on F-1 status with the STEM OPT work authorization.
    • Your H-1B may not be approved by October 1, 2016.
Mind the Gap: OPT Extensions & H-1B

Mind the Gap: OPT Extensions & H-1B (click on image to enlarge)

Cap Gap Work Authorization

  • Cap Gap work authorization only extends until October 1, 2016.
  • IF your OPT expires before October 1, 2016 and Cap Gap extends your OPT until 10, 2016, you might still have a gap in employment until the H-1B approval date.
  • In some years, some quota cases are still pending into the January or February of the following year.
  • In order to apply for the STEM extension, you must work for an E-Verify employer.
  • The new STEM extension regulations, which go into effect in May 2010 have additional requirements.  See the DHS page about STEM-OPT for more information.
  • In the worst case scenario, USCIS will approve your H-1B petition for CONSULAR processing.  You will need to leave the US, and get the H-1B visa stamped in your passport.

CAP-GAP OPT  

  • IF your OPT is valid as of April 1, 2016 and expires before October 1, 2016 – CAP GAP
  • If your OPT is valid as of the date that your H-1b petition is submitted, then your work authorization will automatically continue while your H-1b petition is pending up until October 1, 2016 unless your petition is denied prior to this date.  However, it is advisable to get a new I-20 from your foreign student advisor that shows the extension.

Grace Period

  • If your OPT is expired and you are in your 60-day grace period when your H-1b is filed, then your grace period will be extended while the H-1b is pending
  • You may remain in the U.S. while the H-1b is pending.
  • You will NOT be work authorized while on your extended grace period.

If your OPT is expiring and your H-1b is still pending

  • The USCIS has been slow about adjudicating some regular processed H-1B petitions.  Therefore, your H-1B petition might NOT be approved before your OPT expires.  If your H-1B is still pending as of two months before your OPT expiration date (including the 10/01/2016 cap-gap extension date), then please alert your employer and consider converting the case to premium processing.

Curricular Practical Training (CPT)

The Immigration Agencies appear to have changed their opinion (and have conflicting opinions) as to when CPT is appropriate.  If you have CPT now (or had it in the past), then USCIS MIGHT consider that you have violated your status and you might have trouble getting a change of status from F-1 status to H-1B status.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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Infographic: An overview of the H-1B quota process (FY2017)

An overview of the H-1B Quota Process. (Click on the image above to enlarge.)

An Overview of the H-1B Quota Process

H-1B quota season for Fiscal Year 2017 is coming quickly—since cases must be filed by April 1, 2016.  We anticipate a very busy quota season.

In order to file an H-1B case, the position must normally require a Bachelor’s degree or its US equivalent, and the person being sponsored must have the equivalent (including a combination of education and experience) of a US Bachelor’s degree.

Your cases will need full project information and supporting documentation for filing. All filings for the Fiscal Year 2017 H-1B quota have to be received by USCIS in the first week of April, for a position starting on October 1, 2016.

USCIS will likely accept cases under the quota over a range of days this year, as they have in years past, (Usually the first five business days of April).  Once that range is defined, cases received by USCIS during that range are treated equally for purposes of inclusion and selection under the lottery – there is no advantage to filing on the first day, once a multiple-day range for case acceptance has been defined.  Accordingly, we file all cases on a first-in first-out basis.

After the last day for accepting the cases for inclusion in the selection process has passed, USCIS begins selecting cases. Again, cases received by USCIS during the acceptance period are treated equally for purposes of inclusion and selection under the lottery. Once the cases have been picked, USCIS sends receipt notices for them, and cashes the filing fee checks. USCIS does not cash your fee checks on cases not accepted under the quota, and starts returning the case documents and checks.

Once cases have been picked up, USCIS starts processing them. It means one of the following three things can happen; USCIS issues an approval, or USCIS denies the case; finally USCIS can also issue an RFE, which is request for additional evidence to establish eligibility for petition approval. USCIS suspends processing on cases it has sent out RFEs for till it receives the additional information it has requested, or the last day to submit additional information has passed. USCIS will either approve or deny a petition based on this additional evidence.

After USCIS approves a petition, it sends out an approval notice. The approval notice in itself does not grant the beneficiary admittance into the United States or authorization to work in the United States. The beneficiary has to make an appointment at a United States consulate in her/his country of residence to get a H-1B Visa. The wait time for visa appointments can be found here.

For H-1B visas approved for Fiscal Year 2017, the earliest an employee can start working is October 1, 2016. Also, H-4 petitions for dependents can be filed after the case has been picked up in the lottery.

In order to start a quota case, please send documents to our quota intake email   quota@sgimmigration.com

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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