H1B Cap FAQs : September 2004
Posted Sep 17, 2004
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We at The Law Office of Sheela Murthy, P.C. have been receiving questions about the impending H1B cap, looming large on the horizon. Since many of our MurthyDotCom and MurthyBulletin readers may be pondering these same frequently asked questions (FAQs), we take this opportunity to provide some answers.
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Question 1 : How do I know if I filed in time?
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Answer : Anyone subject to the H1B cap wants to know if the case that his or her employer just filed was in time for the cap. There are also variations of this question, mostly the nature of whether there is still time to file a cap-subject H1B case and whether premium processing is needed for such cases.
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The USCIS has stated that they will allocate a case against this year's H1B quota based on the date the H1B is filed. Thus, if a case is properly filed before the cap is reached it should not be rejected for reasons related to the cap. It is likely that, in the very near future, the cap will be reached and an announcement made. Cases received by the USCIS before the date the cap is reached will have an H1B number available against this fiscal year's H1B quota. Since the cap numbers are based on the date of filing, premium processing is not needed simply for cap purposes. It may be necessary for other reasons, however, including having valid employment authorization to permit an individual to work in the U.S. The only thing that we can advise to those who do not have a cap-subject H1B petition filed on their behalf, is that they will need to move very quickly.
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Question 2 : When will the H1B cap be met?
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Answer : No one knows exactly when the cap will be reached. No attorney can promise that a case can be filed in time for this fiscal year's (FY's) H1B cap. We can only advise that the cap announcement from the USCIS has not been issued as of this writing, so cases appear to still have a chance of being filed in time for this year's H1B quota.
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Question 3 : What will the USCIS cap announcement mean?  
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Answer : Variations on this question include whether the cap announcement will indicate that the cap was reached several days or weeks before the announcement. We do not expect this to occur.
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For last year's FY2004 cap, the USCIS announcement indicating that the H1B cap had been met was made within a day of the cap's being reached, so that it was too late to file any new H1B cases for FY2004 as of that date. Therefore, those who have properly filed H1B cases that have been pending for more than a few days at the time the announcement is made can be reasonably certain that they filed in time to meet this fiscal year's H1B quota. Properly filed H1B cases include the properly signed H1B petition and related documents and the correct filing fees, all in compliance with the procedural details.
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Question 4 : What if there is a delay in the receipt notice?
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Answer : There are also concerns about delays in H1B receipt notices and whether these would create problems in one's being considered as having filed in time for the cap. As long as a case is properly filed in time, a delay in the USCIS's issuing of the H1B filing receipt notice should not create a problem for filing within this year's H1B quota. Of course, until there is a receipt number or notice, it is not clear that the case was accepted for filing.
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Question 5 : Can I file two H1B cases?
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Answer : It seems that many people may have accepted H1B jobs about which that they are uncertain or not entirely satisfied, simply because of the pressure that has been caused by the need to have filed an H1B petition before the cap. We are receiving many inquiries essentially asking how to go about filing a second H1B case by a different employer if one is the beneficiary of a pending or previously-approved H1B petition with a start-date of October 1, 2004. People are concerned as to whether they need to actually work for the first H1B-sponsoring employer to avoid being counted against the H1B cap again.
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The answer is that the new H1B employer could file a new H1B petition, with an October 1, 2004 or later start-date for this fiscal year. Although we commonly hear people speak in terms of transferring their H1Bs, H1Bs are not actually transferred from employer A to employer B. It is always necessary to file an entirely new H1B petition with each change of employer.
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Once one has been counted against the H1B quota for this fiscal year, that person should not be subject to the cap for FY2005 on the second or other subsequent H1B petitions. The second H1B filing can go forward even if the first one is still pending, at least at this time. It may be a bit trickier once the cap is reached in cases where the first H1B case is filed in time but has yet to be approved by the time the person wants to have a second H1B case filed. Of course, in all of this we are presuming that the initially-filed H1B case was genuine, involving a bona fide job offer, and that it actually gets approved. If the H1B petition filed earlier is denied, then that person will not have been counted against the FY2005 H1B quota and will not be able to take advantage of obtaining an H1B against this year's H1B quota.
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Question 6 : How can I ensure an H1B approval?
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Answer : There is no way to guarantee an H1B petition approval. If the H1B employee has all the appropriate credentials, the job is considered complex and in a specialty occupation, and the employer is bona fide and has the financial ability to pay the prevailing wage and all other benefits, the H1B petition is likely to be approved.
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To reduce the possibility of rejection of an H1B petition, as mentioned above, we remind everyone to verify all matters. The filing fee needs to be in exactly the correct amount, with the check signed and properly dated. The dollar amounts written in numbers need to match the dollar amounts written in words. While this seems very basic, these mistakes can occur and can result in a case rejection. Case rejection means that the case is returned and treated as if it had never been filed. The employer needs to verify that every form requiring their signature has been correctly signed and dated. It is necessary to have an approved Labor Condition Application, with proper dates of validity, coinciding with the requested H1B approval dates. While this too may seem very basic, simple mistakes can cause big problems with the cap so close.
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We at The Law Office of Sheela Murthy know that the H1B cap is a major concern for many of our readers. We will continue to keep MurthyDotCom and MurthyBulletin readers updated on H1B cap issues as new information becomes available.