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There Is Still Time To Prepare H-1B Cap Cases For April 1 Filing. By Roger Algase

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With the April 1, 2015 filing date for H-1B cap subject petitions rapidly approaching, many employers who are making last minute decisions to sponsor someone for H-1B may be wondering if there is still enough time to prepare the case in time to meet the deadline.

The answer is - yes, as long as one moves quickly. What action does an employer need to take in order, not only to file the petition in time to make it into this year's virtually inevitable "random selection" lottery, but to make sure that the petition is supported by everything necessary in order to give it the best chance of being approved if it is picked for processing?

Nothing could be more frustrating than to have the petition picked in the H-1B lottery, only to run up against an RFE or denial later on. Here is a checklist which can help to avoid unnecessary complications after an H-1B case is chosen for filing.

First and foremost, the case must be carefully planned. Is the H-1B beneficiary (employee) qualified for H-1B? Does he have a US or foreign bachelor degree in a particular field in or related to what USCIS will consider to be a "specialty occupation" If the degree is a foreign one, is it equivalent to a US four year degree, and does he/she have an equivalency evaluation from a US evaluator?

If the employee does not have a bachelor degree, does he/she have enough progressive work experience in or related to the H-1B position to meet the requirements for bachelor degree equivalency? Has this work experience been properly documented by letter(s) from the previous employer(s)?

Second, equally important, if not even more so, does the offered position meet the USCIS requirements for a "specialty occupation". In many cases, answering this question is like trying to hit a moving target, because whether a specialty bachelor degree is normally required for entry into the particular field is something that can fluctuate over time, depending on the often mysterious pronouncements of the US Department of Labor's Occupational Outlook Handbook ("OOH").

As I have noted previously, the OOH, which most USCIS H-1B examiners follow blindly, often reads with all the clarity of the ancient Delphic or Sibylline oracles, or Shang Dynasty oracle bones. No matter how well prepared the ship of the H-1B petition may otherwise be to venture out on the high seas of USCIS adjudication, if there are any leaks in the specialty occupation planning and job description, the H-1B ship may run aground or even sink.

In addition to making sure that the H-1B position is a specialty occupation as defined by USCIS, it is also important to justify the employer's need to hire someone working in that position, based on its own business activities. This is especially true if the H-1B employer is a new or small company.

Another important issue is the LCA, which depends in turn on choosing the appropriate prevailing wage. I have seen some cases where the employer (or its attorney) purposely chose a job title below the level of the actual offered position in order to come up with a lower prevailing wage for LCA purposes.

There may have been a time when USCIS did not pay much attention to what was in the LCA. That time, if there was one, is now long past, and if the LCA is for a lower job title or salary than is appropriate for a specialty occupation, there is a high risk that the H-1B petition will be denied, no matter how much other evidence there may be that the offered position is indeed a specialty occupation.

To turn to the mechanics of filing an H-1B petition, the first step is to file an LCA (Labor Condition Application) with the US Department of Labor's Office of Foreign Labor Certification (OFLC). This is done online through the OFLC's icert system.

It normally takes at least seven calendar days (though the OFLC's guidance says seven business days) for the LCA to be certified, which is a prerequisite to filing the actual H-1B petition with USCIS.

It is important for an employer, large or small, which has never filed an LCA before to make sure that its Federal Employer Tax ID number (FEIN) is properly registered with the OFLC before filing the LCA; otherwise, the LCA will not be certified.

The way to do this is to email a copy of the IRS notice assigning the FEIN to the employer on the basis of its Form SS-4, together with a request to the OFLC to verify the FEIN to LCA.Chicago@dol.gov

The message should reference: Attn: LCA Business Verification Team. Normally, an email will come back within a few days from the OFLC confirming that the FEIN has been verified and that the employer may now file an LCA.

With only a short time remaining before the April 1, 2015 filing date for H-1B cap petitions, it is important for employers which have never filed LCA's before to take this time period into account.


________________________________
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more that 30 years, concentrating in H-1B and other specialty and professional work visas and green cards. His email address is algaselex@gmail.com


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Updated 02-27-2015 at 12:00 PM by ImmigrationLawBlogs

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