H-1B Fiscal Year 2012 Summary

Overview of the H-1B Program

The H-1B program allows U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. These businesses must meet a variety of qualifications in order to bring foreign workers into the US under this program. In addition, there is a limit as to how many people can qualify for the H-1B program. This is known as a “cap”.

How USCIS Determines if an H-1B Petition is Subject to the Fiscal Year 2012 Cap

By looking at the information in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement, it can be determined whether a petition was subject to the H-1B cap of 65,000. Some petitions are exempt from the cap, such as those applying with an advanced degree like a US master’s degree. Even within this exception, there is a cap though and once the cap is met, those applying with an advanced degree will be counted against the general cap.

Fiscal Year 2012 H-1B Cap Count

As of November 22, USCIS received a sufficient number of petitions to reach the statutory cap for the year. By October 19, USCIS had received more than 20,000 petitions under the advanced degree exemption. As such, USCIS will reject all further cap-subject petitions received after November 22. USCIS will continue to accept cap exempt petitions, DOD petitions and Chilean and Singaporean H-1B petitions.

H1-B Cap Amounts

Currently, the annual cap on the H-1B category is 65,000. Of these 65,000 visas, up to 6,800 visas are set aside from the cap each fiscal year under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. If, at the end of the fiscal year, there are unused visas, they will be made available for H-1B use for the next fiscal year.

Ensure USCIS Considers Your Petition Is Properly Filed

USCIS continues to accept H-1B petitions that are not subject to annual numerical limitations. For example, H-1B amended petitions,  H-1B extensions for individuals who have already been counted against the cap within the last six years, DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2012 are all free from the annual cap.

In order to ensure that your petition is properly filed, please comply with the following guidelines:

• Make sure you complete all sections of the Form I-129 petition, including the H Classification Supplement to Form I-129 and the H-1B Data Collection and Filing Fee Exemption Supplement. USCIS accepts Form I-129 with a revision date of November 23, 2010, or later.
  • Original signatures, preferably in blue ink in order to differentiate from the type, are required on each form.
• Include a signed check or money order and ensure that the fee is made for the correct amount.
• In order to ensure timely processing, include all required documentation and evidence with the petition at the time of filing.

It is the petitioner’s responsibility to ensure that Form I-129 is completed accurately.  Failure to complete Form I-129 with the correct information and provide the required fees or documentation may result in the rejection or denial of the H-1B petition.

Additionally, make sure that you are filing the petition at the correct USCIS Service Center. You can find the Service Center that serves your area on the USCIS website.

Additional Documents That Must Be Submitted With Your Petition

Labor Condition Application (LCA)

A certified Department of Labor (DOL) LCA (Form ETA 9035) must be submitted at the time of filing your petition.  A photocopy of the LCA is acceptable.

USCIS encourages petitioners to consider DOL LCA processing times when preparing the H-1B petition and to plan submission of your petition with this in mind.  If the LCA certified by DOL is for multiple positions, you must provide the name and USCIS case receipt number of any alien who has previously utilized the LCA.

Make sure that the petitioner has signed the LCA prior to the LCA being submitted with the petition to USCIS.

You can check the Department of Labor’s Office of Foreign Labor Certification website for more information.

Include Evidence of Beneficiary’s Educational Background

All evidence of the beneficiary’s educational degree must be submitted at the time of filing.  If the physical degree has not yet been awarded, but all of the requirements for the degree have been met, the following alternate evidence may be submitted in place of the degree:

• A copy of the beneficiary’s final transcript; or
• A letter from the Registrar (or person with control over student records) confirming that all of the degree requirements have been met.

If you are indicating that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at time of filing.

A Duplicate Copy of the H-1B Petition

A duplicate copy of your H-1B petition must also be submitted at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad.  It is not the responsibility of USCIS to make a second copy if one is not provided.

A duplicate copy of the petition may also be submitted, even if the beneficiary is requesting a change of status to H-1B or an extension of stay in case the beneficiary later decides to seek visa issuance abroad or the H-1B petition is approved but the beneficiary’s concurrent change of status or extension of stay request is denied.

The Department of State’s website has all of the information needed to ensure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and any other consulate-specific special instructions.

Multiple or Duplicative Filings

As of March 19, 2008, an interim final rule on H-1B visas was issued that prohibited employers from filing multiple or duplicative H-1B visas for the same employee. In order to make sure that H1-B visas are distributed fairly and in an orderly fashion, USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

Mailing Your H-1B Petition

As previously mentioned, it is important that you file your petition at the correct Service Center. This will be dependent upon the jurisdiction of the H-1B beneficiary’s work location as specified in your petition.  USCIS has established specific mailing addresses for purposes of identification and processing of H-1B cases.

To determine which jurisdiction you are in, see the USCIS Direct Filing Addresses for Form I-129, Petition for Nonimmigrant Worker.

Certain educational or nonprofit organizations which file H-1B petitions on behalf of beneficiaries that are exempt from the H-1B numerical limitations. have a separate mailing address.

It is important that you read the filing instructions very carefully.  If you file your petition incorrectly, the petition will be rejected and will not retain a filing date.

Required Fees for Different H1-B Petitions

The type of H-1B petition you are submitting will determine how much the fee is for your submission.  Please refer to H-1B Data Collection and Filing Fee Exemption Supplement found on pages 17-19 of Form I-129 for detailed instructions on fees.

The base filing fees for an H-1B petition is $325.

American Competitiveness and Workforce Improvement Act of 1998 fee:

This information is found in the H-1B Data Collection and Filing Fee Exemption Supplement, Part B:

• $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
• $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection fee:

• $500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers. This does not apply to Chile/Singapore H-1B1 petitions.

Public Law 111-230:

• $2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.
• must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers

Premium Processing fee:

• $1,225 for employers seeking Premium Processing Service

Use of Checks

If you are using a check to pay your fee, make checks payable to the Department of Homeland Security or U.S. Citizenship and Immigration Services, dated within the last 6-months, and include the proper guarantee amount and signature.

Use of Money Orders

Money orders must be properly endorsed in order to be used to pay your submission fee.

Non-payable Checks or Other Financial Instruments

USCIS will reject all applications or petitions submitted with the incorrect filing fee or using an incorrect instrument.  Rejected petitions and petitions in which the check or other financial instrument used to pay the filing fee is returned as non-payable will not retain a filing date. See 8 CFR 103.2(a)(7)(i).

While petitioners are generally given the opportunity to correct a fee deficiency, pursuant to the regulations, the filing date will not be established until the fee deficiency has been corrected. If the fee is not corrected, then a filing date will not be provided.

Premium Processing Service

Premium processing allows a petition to be processed within 15 calendar days. H-1B petitions are eligible for this Premium Processing Service.  In order to request premium processing submit:

• the Form I-907 and
• the filing fee of $1,225. This fee is in addition to the required base filing and other applicable fees and cannot be waived.

You can file the Form I-907 and corresponding fee:

• at the same time as Form I-129 or
• at any time after you file Form I-129 while it is still pending.

If the I-907 is filed after the Form I-129, you must include the receipt number (for example, EAC 11 123 51234) of the Form I-129 in the appropriate section of Form I-907.

USCIS will only accept the 08/10/09N or later edition of Form I-907.

Organizing Your H-1B Package Before Submission

A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, ACWIA fee, and Public Law 111-230) is preferred.  Applicable fees should be stapled to the bottom right corner of the top document.

Preferred order of documents at time of submission:

1. Form I-907, if filing for Premium Processing Service

2. Form G-28, if represented by an attorney or accredited representative

3. Form I-129, Petition for a Nonimmigrant Worker

4. H Classification Supplement to Form I-129

5. H-1B Data Collection and Filing Fee Exemption Supplement

6. All supporting documentation to establish eligibility

7. Provide a Table of Contents for supporting documentation

• • Tab items as listed in Table of Contents
  • Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.
  • SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
  • SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
  • Form I-566 if the beneficiary is a current A or G nonimmigrant
  • DOL certified LCA, Form ETA 9035
  • Employer/attorney/representative letter(s); and
  • Other supporting documentation.

Make a duplicate copy of the petition, if necessary.  Clearly indentify the duplicate copy of the petition by writing “COPY” at the top, so that it is not mistaken for a duplicate filing.

Mailing multiple petitions together

If you will be mailing multiple petitions in the same courier service or Post Office package, please place individual petitions into separate envelopes within the package.

Tips for Filing:

Form G-28: Notice of Entry of Appearance as Attorney or Representative

A properly executed G-28 should be included if the petitioner will be represented by an attorney or other accredited representative.  Ensure that each section of the Form G-28 is completed and includes the following:

• The printed name and signature of the representative
• The original signature of the petitioner.

Form I-129: Petition for a Nonimmigrant Worker

• Accurately complete all sections of the form.
• Properly sign the petition.
• In Part 1, question 3, petitioners should enter their own address so the original I-797 receipt and approval notices are sent directly to the petitioner.
• USCIS generally discourages entering another person’s address for mailing purposes. However, petitioners submitting the Form I-129 who would prefer that an attorney or representative of record receives original I-797 notices may use an attorney’s address as the mailing address on the petition.
  If you do use an address other than the petitioner’s, there may be processing delays due to the Validation Instrument for Business Enterprises (VIBE). VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If the petitioner decides to use an attorney’s address as the mailing address on the I-129 petition, it is advised that a cover letter is included with the filing that clearly indicates the current address of the petitioner. Including the cover letter will assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address. In addition, if the petitioner uses an attorney’s address as the petitioner’s mailing address, the petitioner will not receive any I-797 notices so make sure that your attorney knows to contact the petitioner regarding any notices received.
• Make sure the beneficiary’s name is spelled correctly and that his or her date of birth is displayed in the proper format (mm/dd/yyyy).  Also, country of birth and/or citizenship and the I-94 number (if applicable) must be accurate.
• If the beneficiary is looking to have their visa issued at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing.  In cases where the beneficiary is seeking a change of status or extension of stay in the US, you may still choose to submit a duplicate copy in the event that the beneficiary will be seeking issuance of a visa at a consular office abroad subsequent to the approval of the change of status or extension of stay.
• If the beneficiary is seeking an extension or change of status, the petition should include evidence (for example, a Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
• Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129 (found on pages 11 and 12 of Form I-129)

• Complete all sections of the form accurately.
• In listing previous periods of stay in H/L classification (this is question 3), include the actual nonimmigrant classification held (H-1B or L-1, for example).
• Petitioner must sign the form, preferably in blue ink, to differentiate from the type on the form.

H-1B Data Collection and Filing Fee Supplement form (found on pages 17 through 19 of Form I-129)

• Complete all sections of the form accurately.
• Enclose pages 17-19 of the Form I-129 (make sure that your form has a revision date of November 23, 2010 or later).
• If the answer to the first question in Part D on page 19 is “No,” indicating that the beneficiary will not be assigned to work at an off-site location, please note that responses to the remaining two questions in Part D are not required.

Form I-907, Request for Premium Processing

• Complete all sections of the form accurately with original signatures.  USCIS will accept the 08/10/09 or later editions of Form I-907
• The representative may sign in both Parts 3 and 4 of the Form I-907 if there is a valid Form G-28 with the filing.  Otherwise, the petitioner’s signature is required.  Preferably, the signature(s) should be in blue ink.
• Please include a copy of the Form I-129 receipt notice along with the Form I-907 when Form I-907 is filed after the filing of Form I-129.

If you need help with your H-1B petition, please contact our offices at 949-228-3922 for a free consultation.