Beating the Cap & Winning the H1B Lottery : Issues in Filing New H1B Petitions  Posted Dec 15, 2008
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This article was written by the attorneys of the Murthy Law Firm for Murthy's Corporate Bulletin. If you are an employer or HR manager, interested in the services offered by our firm, contact our Corporate Services Manager.
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The H1B visa is the work-horse of U.S. business immigration law. Employers typically look at this category when interested in hiring foreign nationals to work in the United States, because it is appropriate for professional positions and allows for a six year stay, in three-year increments. The problem, generally, as regular readers of Murthy's Corporate Bulletin will recall from our October 2008 article, ABCs of H1Bs : Getting Back to the Basics of the H1B Visa, is that, if an individual previously has not held H1B status, s/he is subject to an annual limit, or what is commonly referred to as the H1B quota or cap. While the basic concepts regarding the H1B category have been addressed by Murthy's Corporate Bulletin in a previous issue, and are familiar to many, there are questions that continue to be raised by many Murthy Law Firm clients. Following, we review some of the typical obstacles to winning the H1B lottery selection process or, as referred to here, the "H1B cap-subject cases." This is relevant to both sponsoring businesses and other entities interested in the annual effort to hire H1B workers.
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Who is subject to the H1B cap?
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This is one of the most important H1B questions to which attorneys from the Murthy Law Firm respond on a regular basis. First, an employer should determine whether their company is cap exempt, or whether the employment is cap exempt. These cap-exempt employers do not have to complete for one of the limited H1B cap numbers. Employment generally is exempt if it takes place at universities or their nonprofit affiliates. The same holds true for nonprofit and governmental research organizations. It is important to note that the law refers to employment "at" such organizations, and is not limited to employment "by" these organizations. Certain foreign medical graduate physicians who have been granted permission and agreed to work in medically underserved areas are also H1B cap exempt.
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Most employment at businesses does not fit within the cap exemptions. Thus, it is necessary to see if a foreign national who is a potential employee has been previously approved for H1B status. If so, and the prior employment was not cap exempt, then that person generally would not be subject to the cap. This could even be the case if the foreign national never actually used the previously-approved H1B case to come into the United States. In general, one who has been counted against the H1B quota within the previous six (6) years is not counted again until s/he has spent a year outside the United States. There can be some complexities with this issue, but if one has worked in the U.S. in H1B status for a cap-subject employer, then it is highly likely that the cap would not be a problem for the prospective employee.
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When should my case/s be filed? How does the timing work?
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The annual H1B cap numbers become available at the beginning of the U.S. government's fiscal year. However, H1B cases can be filed six months in advance of the requested start date. Since the fiscal year starts on October 1st, the earliest filing date for a cap-subject case is the April 1st preceding the new fiscal year. So, for the upcoming year, all H1B cap-subject cases will request an employment start date of October 1, 2009. These cases should be filed on April 1, 2009, due to competition for the limited cap numbers.
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The demand for H1B cap numbers significantly exceeds the supply. As a result, we at the Murthy Law Firm advise our clients to file their H1B cap-subject cases to arrive at the U.S. Citizenship & Immigration Services (USCIS) on April 1st.
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Can you explain more about the timing? When should I start my case?
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It is vital to plan ahead! The Murthy Law Firm has been taking H1B cap-subject cases for several weeks. We start accepting these cases well in advance, to avoid the typical mad rush that occurs as employers become aware of the cap deadlines, and foreign nationals secure employment offers that require H1B cap-subject numbers.
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Any cap-subject case should be started as soon as possible. Attorneys at the Murthy Law Firm are preparing these cases in advance, so that they can reach the USCIS on April 1st. We want to make sure that all cases are ready for the employer's signature in early March.
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Can the paperwork for the H1B case be taken care of quickly? How can I minimize my worry?
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We at the Murthy Law Firm use cutting-edge technology. Our clients benefit from our attorneys' experience and efficiency. Please understand that there are several steps involved in preparing an H1B case and it is always safer to carefully file a proper petition with all documents, rather than rush and make errors at the last minute.
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The Murthy Law Firm collects all of the necessary information and documents from both the petitioner (H1B sponsor) and beneficiary (foreign national worker) to prepare the petition. The H1B petition is comprised of a series of forms, letters, and supporting evidence proving, among other elements, that the job requires someone with the minimum of a bachelor's degree or its equivalent and that the potential employee holds these credentials. The prepared petition is sent to the employer for review and signature and the original, signed documents are returned to the Murthy Law Firm to be filed with the USCIS.
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The employer must also comply with the U.S. Department of Labor's Labor Condition Application (LCA) requirements, such as posting a Notice of the Filing, creating a pubic access file, and providing a copy of the LCA to the sponsored worker. Once all of the signed documents are received by our firm, the final package to be filed to USCIS can be readied for transmission on March 31st, for delivery on the first day of April.
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I operate an IT consulting business and have heard that other companies face problems with their H1B cases. How can these be addressed?
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The USCIS requires that the actual worksite/s where an employer is going to send a foreign national worker be identified at the time of filing the H1B case. If the H1B worker is to be placed at end-client site/s, the location/s of actual employment must be identified and listed on the H1B case filed with USCIS.
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The sponsoring employer is supposed to have labor condition applications (LCAs) certified for the place/s of employment with qualifying work when the H1B case is filed. Changed locations and new LCAs are not acceptable by USCIS in response to a mid-processing Request for Evidence (RFE). H1Bs may not be based on speculative or potential employment, to be determined at some point after the filing, once a suitable project is located.
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Is there any kind of evidence that I can give the USCIS to explain my business and show that I have jobs for these people?
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IT consulting companies that have been successful with their H1B cases and replying to USCIS RFEs are able to show work on specific projects, and such evidence as contracts, purchase orders, or statements of work with the actual end client. Without these documents, the cases are usually denied for not having H1B employment at the time of filing.
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The USCIS sometimes reviews previous H1B cases from the same company and conducts independent research online about the company's business, including the company's internal IT product development projects, if claims are made that the sponsored individual will work on such a project. Make sure that all the information submitted to the USCIS is consistent and verifiable with legitimate documents.
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It is also important to update an LCA for a worker relocated to a different job site/s; and that each current H1B worker has LCA/s for all locations where s/he is actually working. Of course, compliance with LCA terms, including proper payment, is also vital, as the USCIS may review the company's past history in assessing whether to approve new petitions.
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I found a foreign national who is in the U.S. and I would like to hire her. Can she change her status without leaving the country?
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A foreign national who is in the United States when the employer files the H1B petition potentially may be eligible to change his/her status without leaving the country. Typically, it is necessary for this potential employee's current lawful status to still be valid, at least until October 1st in order for USCIS to change the existing status to H1B.
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Someone in the United States in F-1 status - a student with status that will end before October 1st - may have options that individuals in other categories do not. An F-1 student will be eligible for an automatic "cap-gap" extension from the end of the student status until September 30th if a change of status to H1B is requested on the employer's petition to USCIS. However, if the H1B petition is rejected by USCIS or denied or revoked, the F-1 status extension will terminate.
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Can I still sponsor a foreign national to work for my business in H1B status if s/he cannot change status in the U.S.?
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Foreign nationals who cannot change their status can still be sponsored for an H1B, but they must wait abroad for the approval by USCIS and apply at their local U.S. consulate for an H1B visa. Upon admission into the U.S., with the new H1B visa, s/he will be in H1B status and permitted to start employment.
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Conclusion : Murthy Law Firm Services Clients' Business Needs Early
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As demand for the H1B visa has grown, we at the Murthy Law Firm have been able to assist clients in filing their H1B cases in time to be received by USCIS on the first day of filing. Through technology and the skill of our experienced attorneys and staff, we have a record of providing clients with the best possible chance of success in the annual H1B lottery system. While the lottery is completely random and our clients are not given any sort of preference, these cases are filed properly and in a timely fashion. Selection in the lottery alone is not enough. The case also must be approved. Approval requires that a case has been prepared correctly from the start, as it is often not possible to change strategies or reverse course once the case is filed. We understand that employers are looking for help in employing skilled, professional foreign nationals. By understanding the issues involved in the H1B process, and the nuances inherent in increasing the odds of beating the cap, our firm takes a proactive approach to representing clients in H1B cases. We look forward to assisting employers so that these business needs are met.
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