The upcoming quota for 2017 is expected to be filled by the beginning of April 2016, and this approaching date means that the H1B cap can create dual complexities for employers:
- First, to be considered in the H1B lottery, H1B petitions must be filed on time; and
- Second, to guarantee successful adjudication of H1B petitions selected during the lottery process, the filed H1B petitions must be thorough and compelling. Employers will quickly file H1B petitions on time, but frequently avoidable mistakes are made that have the potential to negatively impact the outcome of the cases.
Questions To Consider
When determining the validity of an H1B petition for 2017, consider the following questions:
- 1- Are the prerequisite skills and knowledge required for the position defined in the job description in detail for all of the duties and responsibilities?
- 2- Would the duties of this job require a specialty occupation?
- 3- Can you justify the need for someone with a Bachelor’s degree in a specific study field to perform each duty?
The following sections outline 5 areas of typical H1B cap filing mistakes make by employers with recommendations on how to avoid these submission errors.
Job Description Deficiency
The H1B visa category was established for individuals with a specialty occupation. That means that the qualifications for particular services can only be filed by individuals who have, at minimum, a bachelor’s degree, or its equivalent, in specific fields of study.Whether or not a position will qualify as needing a specialty occupation depends on more than a job title.
When determining if a particular job fits the needs of a specialty occupation, USCIS will take into consideration several factors such as the nature of the employer’s business and the exact duties to be performed in the offered position.
Without a detailed job description that strongly justifies that an offered position will qualify as a specialty occupation, the position description risks an adverse outcome from the H1B petition.
FEIN Mismatch causes Potential LCA Certification Delays
An employer risks an LCA denial if the iCert system used by the Department of Labor (DOL) detects a mismatch with the company’s tax ID number or the company’s FEIN. When the iCert system detects a mismatch, the submitting company needs to be pre-verified before an LCA can be successfully resubmitted. Pre-verification can delay a company’s submission by up to 5 days of additional time.To prevent potential delays during the H1B filing timeline for events such as a FEIN mismatch, employers need to organize and submit their LCAs earlier rather than a later submission.
LCA Posting Requirements
The following are requirements for posting the LCA which is required before an H1B petition can be submitted:
- 1- The LCA must be posted in two conspicuous employment locations by the H1B employer.
- 2- Before the LCA can be filed, the posting must have occurred on or within 30 days of the filing.
- 3- The employer risks fines or debarment from future H1B petition filings for willful violation of the posting requirement.
Proper Determination of a Person’s Previous H1B Status
The employer has the responsibility to factually determine whether or not a potential foreign national employee with previous H1B status was actually counted towards the H1B cap. The foreign national may not have been counted towards the H1B cap if the previous H1B status was due to an exempted employer or position.The employer must file a new cap-subject H1B petition by April 1, 2016 for any foreign national who is transferring from an exempt employer or position to an employer subject to a H1B cap.
Errors with H1B Filing Fees
Three USCIS filing fees are required for all new cap-subject H1B petitions. Employers need to include all 3 filing fees.The employer risks the rejection of a H1B petition if any of the fees is missing or not submitted in the correct amount.To ensure error free filing fees, do not combine all filing fees on one check, submit a different check for each filing fee, sign each check, and double check that the submission includes all of the checks.
What are the current H1B Filing Fees?
- 1-$325 USCIS Filing Fee;
- 2-$500 Fraud Prevention and Detection Fee; and
- 3-$750/$1500 ACWIA* Filing Fee ($750 if there are 1-25 full time employees and $1500 for 25 or more full time employees).
Note: There are some exemptions from the ACWIA filing fee for certain nonprofit organizations, educational institutions, and nonprofit/government research organizations.
Signatures Are Important
Do not mail an H1B petition package to USCIS before ensuring that all necessary forms have been included and originally signed. The USCIS does not accept photocopied or electronic signatures. The H1B petition will be rejected if there is any missing signature on any of the necessary forms.
Service Center Filing Errors
For identification and processing of H1B cap-subject cases, the USCIS established specific mailing addresses. These are the mailing locations that employer must use as they were developed based on the legal administration for those work addresses defined in the petition. A H1B cap petition will likely be rejected and returned if it is sent to an incorrect USCIS Service Center. This incorrect mailing may take weeks to be recognized and the employer may not be able to refile a petition before the cap is reached.
The new FY 2017 H1B cap filing season is expected to be more competitive and intense than in prior years. To avoid any possibility of a rejection or denial of a petition selection during the H1B lottery as a result of incomplete or improper filing, employers must strictly adhere to all of the H1B filing requirements and file the petitions well within the filing timeline. Our law firm can help eliminate filing errors and increase your chances for a positive H1B lottery selection. Individual and corporate clients around the world rely on our firm’s specialized service.
Contact KPPB Law Today
Our firm is offering consultation services for a FY 2017 H1B filing plan that will show H1B applicants and employers how to improve their chances of selection and approval in the H1B lottery process. Based on our attorneys’ near perfect success rates, we’ll discuss your priorities during the planning consultation and provide you with strategy recommendation for the FY 2017 H1B filing season. Call us today or send us a message online to get comprehensive and knowledgeable assistance for your FY 2017 filing strategies.
Beeraj Patel, Esq.
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