The process of applying for H-1B1 status is complicated, and both the candidate and the prospective employer need to be aware of potential pitfalls.
If you're a non-U.S. citizen and you want to work in the United States temporarily, one of the most common ways to do so is via H-1B1 status. It is designed for those involved in a "specialty occupation," and people with such status can work temporarily for an initial period of three years, plus potentially another three years. Many workers use this six-year period to apply for permanent residence status. But applying for H-1B1 status can be tricky. Here are some things to watch out for.
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1: You may be limited by the cap
65,000. Keep this number in mind. In many cases, you may be competing against 64,999 other candidates for H-1B1 status. If, as was true in recent years, the number of petitions exceeds 65,000, U.S. Citizenship and Immigration Services (USCIS) — the organization that manages this program — will conduct a lottery to determine which petitions are selected for consideration.
2: Watch the window
It's important to be aware of the window of opportunity to apply for H-1B1 status. You must file neither too early, nor too late. The annual cap of 65,000 resets every new fiscal year, which for the U.S. government is October 1. In other words, every October 1, you have a chance at a new batch of those 65,000. However, there is a limit on how early you can file your petition. The filing can occur no earlier than six months from the date you want your H-1B1 to be effective. For this reason, many candidates file their petitions on April 1 because that date is six months prior to October 1, the start of the new fiscal year and the chance at that next batch.
If you file before April 1, you might be rejected because the 65,000 allotment is gone for that year. If you file too long after April 1, you might be rejected because the next year's allotment is gone.
3: You might be exempt from the cap or have additional slots
Many H-1B1 candidates are subject to the cap, but some aren't. If you, the prospective employee (otherwise known as the "beneficiary"), work for certain types of employers (the "petitioner"), you could be "cap exempt." In other words, there is no limit on the number of H-1B1 approvals that can be issued to beneficiaries of such petitioners. The categories of such petitioners include:
- Institutions of higher education
- Organizations affiliated with institutions of higher education
- Nonprofit or governmental research organizations
Even if you don't work for one of these cap-exempt organizations, you might have another way to get around the 65,000 limit. If you hold a master's degree or higher in a field relevant to your specialty occupation, you have a chance at an additional 20,000 slots.
4: The employer should be paying your filing fee
The filing fee for the H-1B1 petition is the responsibility of the employer. These fees consist of a base amount of $320, plus an antifraud fee of $500. Most petitions will have an additional fee of either $750 or $1,500, depending on the size of the employer. So the filing fee could be as high as $2,320.
These fees are the responsibility of the employer/petitioner, not the employee/beneficiary. In fact, a petitioner who requires a beneficiary to pay these fees could be subject to sanctions. Furthermore, this practice would affect the labor condition application (LCA) of the petition. Basically, when doing wage determination analysis, the petitioner would have to reduce the beneficiary's wage by the amount of these fees, thus making it harder to satisfy the LCA conditions.
5: There are distinctions among computer positions
Within USCIS is an office known as the Administrative Appeal Office (AAO). This office hears appeals of employers whose H-1B1 petitions have been denied.
Historically, AAO has divided computer positions into three groups: engineers, systems analysts, and programmers. The first two groups, plus programming of scientific and engineering applications, generally have been considered specialty occupations. However, programming of business applications has not been considered a specialty occupation, because training is available outside college and because often, a bachelor's degree isn't required.
This view is changing because AAO is recognizing that the computer field itself is changing. If you program business applications, therefore, do not despair. You still might be able to qualify for H-1B1 status. The important thing is to show as much as possible that your work requires specialized knowledge. Also, the more you can show systems analysis-type duties, the better off you will be.
6: Enclose a support letter along with the petition
The form I-129, which is the actual petition form, contains little space to describe the position and the beneficiary. For this reason, many employers will write a separate letter giving additional details. In this letter, the employer should include information about the company, the job, and the beneficiary. Such a letter can be more persuasive than the I-129 information by itself.
7: Send your petition to the right service center
Make sure you send your petition to the right service center, either in Vermont or in California. If you send it to the wrong center, your petition may be delayed or denied. In many cases, that decision is based on the state where your job is located. However, any cap-exempt petitions should be mailed to California regardless of the job location. For the latest and most complete instructions, review the information that accompanies the form I-129.
8: Be sensitive to the versions of forms
It's generally best to use the current version of a form. Information about the version is usually located at the bottom right of each page of the form. Compare the date you see with corresponding information at the Forms link on the USCIS Web site. A table of forms will tell you the date of the most current one. It will also tell you which, if any, previous versions of the form are also accepted. So don't panic if you find that you are using or already filed an earlier version — it still might be accepted.
9: Calculate and remit the filing fees correctly
Sending in incorrect fees is a major reason a petition is rejected. Make sure you calculate the fees correctly. Also, submit the fees the way the instructions direct you to. For example, do not combine the base filing fee with the antifraud fee. The instructions clearly state that these two amounts must be on separate checks, even though both are payable to the same party.
10: Be consistent
Inconsistent information is another major reason for the rejection of a petition. Look over the petition carefully before submitting it. In particular, note the several places in the H-1B Data Collection and Filing Fee Supplement, where the petition asks about the master's degree of the beneficiary: Part A question 1.a.c.2, question 3, question 5, and part C question 7. Make sure your answers regarding master's degree are consistent in all of these places.
11: Provide supporting documentation regarding an organization if it's entitled to special treatment
Pay attention if you are exempt from the annual cap because of the organization you will be working for, or if that organization is exempt from certain filing fees. If those exemptions are based on certain characteristics of the organization, provide supporting documentation. For example, if you are claiming exemption because the organization is nonprofit, consider supplying a copy of the determination letter from the Internal Revenue Service (IRS). If you're claiming exemption because it is a research organization, consider supplying copies of actual research reports. Supplying such evidence at the time of your application may save you delays later on.