March 23, 2011 | 10:49 am
Posted by Cedric M. Shen
As discussed in my previous blog post, the annual H-1B cap quota starts anew on April 1st. Last year, the cap did not get filled until late January (taking almost 10 months), while in previous years - when the US economy was good - the cap was filled within the first few days. Since the USCIS begins accepting H-1B petitions on April 1st, most employers and their attorneys aim to file the petitions via overnight mail on March 31st. In fact, the USCIS usually rejects petitions that were received prior to April 1st.
I’m sure there are a lot of employers out there who are curious about the H-1B process. While I won’t bore you with the details, I do want to offer a few tips. First of all, any employer looking to file an H-1B petition on April 1st should have started the process at least one month prior - if not more. The first step, filing the Labor Condition Application with the Dept of Labor, usually takes a week for approval. This does not factor in the 10 days the employer has to post the LCA at the workplace. However, that’s assuming the LCA doesn’t get rejected for a variety of reasons. One of the most common delays does not even originate from the employer or the attorney. There have been many instances where the DOL does not recognize the FEIN number (aka Tax ID Number) of the employer - causing the LCA to be denied and requiring the employer to submit written documentation to prove the FEIN. It could take several days for the DOL to confirm the FEIN and another several days to get the re-submitted LCA approved. By then, at least three weeks have already passed and you still have to prepare the I-129 and all supporting documents.
In my experience, it’s always best to start the H-1B petition in February if you want to have it filed on April 1st. As of today, there are only 10 more days before the start of the FY2012 H-1B cap. I do not anticipate the cap to fill up within the first month (though you never know). So if you’re still contemplating filing an H-1B petition, it’s certainly not too late to do so. If you start the process today, an experienced lawyer will probably be able to get it filed by the second week of April.
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