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FY2008 H1B
Filing : Importance of Timing
Posted
Mar 16, 2007
©MurthyDotCom
The time is drawing near for cases to be filed for the Fiscal Year (FY) 2008
H1B cap. At the Murthy Law Firm, we have been receiving questions related to
H1B cap filings and timing issues. In particular, people have been asking
when to file, how to obtain their labor condition applications (LCAs) for
the proper timeframe, whether premium processing is needed or beneficial,
and when we expect the cap to be reached.
©MurthyDotCom
When to File a Cap-Subject H1B
©MurthyDotCom
Regular MurthyDotCom and MurthyBulletin readers are aware that
FY2008 starts October 1, 2007. Those who have been following the H1B cap
issue also know that H1B cases can be filed up to six months in advance of
their employment start date. Therefore, the first date for filing H1B cases
in any given FY is generally April 1st. In 2007, however, April 1st falls on
a Sunday, when government offices are closed. Thus, the first business day
in April this year is April 2, 2007.
©MurthyDotCom
As
discussed in our March 2, 2007 MurthyBulletin article, entitled
USCIS on the First Filing Date for FY2008 Cases, on Monday, April
2nd, the USCIS will also process cases received on Saturday, March 31st.
Anything
filed before March 31st will be rejected as being filed too early or as an
untimely filing. Therefore, it is possible to send everything on March 30,
2007, and know that it will be accepted, even if delivered on Saturday,
March 31st. We would not recommend sending cases before March 30th, as there
is a possibility of early delivery. It has been our experience, when using
Federal Express or other delivery services, that selecting 2-day or 3-day
service does not prevent the package from being delivered more quickly. The
packages often are delivered faster than the requested delivery time,
although it is not guaranteed.
©MurthyDotCom
No Advantages to a March 31st Delivery
©MurthyDotCom
The USCIS states that there is no advantage to filing for delivery on March
31st rather than April 2nd. They state that all petitions filed on either
March 31st or April 2nd will be treated as if filed on Monday, April 2nd. If
the USCIS receives more petitions on March 31st / April 2nd than they have
cap numbers, the numbers will be allocated according to a lottery system.
The lottery is not based upon the order in which the cases are received.
Rather, it is a random, computer-generated lottery system. Therefore, having
a case reach on March 31 rather than April 2, 2007, or whether it is in the
morning or afternoon, does not enhance one's chances of approval.
©MurthyDotCom
Of course, many employers and attorneys will simply find it easier to send
all their cases from their offices on Friday, March 30th rather than
Saturday, April 1st.
In general, if it is at all possible, it is always better not to wait until
the very last minute. That way, if something goes wrong on Friday, March
30th, resulting in a delay in filing, there is still a bit of time to fix
the problem.
©MurthyDotCom
How to Obtain an LCA for the October 1st Start
Date
©MurthyDotCom
After reporting on the possibility of the March 31st delivery, we received a
lot of inquiries regarding the logistics of obtaining the required labor
condition application (LCA) covering October 1st for a case filed on March
31st. These questions came from employers, individuals, and other attorneys.
The problem is that LCAs can only be approved six months in advance. Thus,
if one tries to obtain an LCA on March 30th
for an October 1st start date, it will not work.
©MurthyDotCom
The solution is simple. The LCA should not request an October 1st start
date, but a start date shortly prior to October 1st,
instead. Since the LCA can have a validity of three years, an LCA that
starts a bit before October 1st will still be valid on October 1, 2007,
and for most of the three
year timeframe thereafter.
Example:
-
Request an LCA
on March 15, 2007.
-
The LCA can
request a start date six months in the future. So, the LCA could be
valid from September 15, 2007 to September 14, 2010.
-
The cap-subject
H1B cannot have a start date before October 1, 2007. There must be
an LCA underlying the H1B. So, the H1B could request validity dates
from October 1, 2007 to September 14, 2010.
Is Premium Processing Required to Obtain
an H1B Cap Case?
©MurthyDotCom
Many people assume that they need to use premium processing in order to
enhance their chances of obtaining an H1B cap number. This is not true. The
H1B cap numbers are allocated based upon date of filing, not date of
approval. Thus, all cases filed or received at the USCIS service center on
the same day have the same chance for a cap number.
©MurthyDotCom
Premium Processing has certain other advantages, however; including the
simple peace of mind once a case has been approved. But it is not necessary
to spend an extra $1000 on premium processing in order to get a cap number.
©MurthyDotCom
When will the H1B Cap be Reached?
©MurthyDotCom
No one knows when the H1B cap will be reached. There are rumors that it
could be reached on the first day of filing. This is purely speculation,
however, and until the cases are filed, there is no way of knowing. We know
that in FY2007, the "regular" cap was reached on May 26, 2006, and the
advanced-degree cap was reached on July 26, 2006. We certainly will be
watching this closely, beginning April 2nd and continuing until both the
regular and advanced-degree caps are reached.
©MurthyDotCom
Where to File : Note Changes
©MurthyDotCom
There have been changes in the rules as to where H1B cases should be filed,
starting April 2, 2007. This is covered in our MurthyBulletin article,
USCIS Update on Filing Procedures for Forms I-129 and
I-539, also published today, March 16, 2007 and available on
MurthyDotCom. Fortunately,
there is a grace period until April 16, 2007, so the chances of rejection
for improper filing are reduced. It is best to comply with all instructions,
however, rather than to rely upon grace periods. |
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