The FY 2023 H1B cap filing season is here.
With the FY 2023 H1B registration period set to open on March 1, 2022, the H1B cap presents twin challenges to employers:
- Filing H1B registrations on time to stand a chance of being considered in the H1B petition lottery; and
- Filing strong H1B petitions to ensure successful adjudication of petitions selected in the H1B lottery.
In the rush to get H1B petitions timely filed, employers often commit avoidable mistakes that can seriously affect the outcome of the case.
We present 5 common H1B cap filing mistakes made by employers and how to avoid them.
I. Deficient Job Description
The H1B visa category is for people who perform services in a “specialty occupation” – an occupation that requires the person to have at least a bachelor’s degree or its equivalent in a specific field of study.
A job title by itself does not determine whether a particular position qualifies as a specialty occupation. USCIS looks at the specific duties of the offered position in conjunction with factors like the nature of the employer’s business when considering if a job is in a specialty occupation.
The job description must clearly demonstrate that the offered position qualifies as a specialty occupation and job descriptions that fail to do so often have an adverse impact on the outcome of the H1B petition.
QUESTIONS TO ASK YOURSELF
1. Does the job description contain a detailed position summary that includes duties and responsibilities?
2. Do the job duties describe a specialty occupation?
3. Can you describe or show how each job duty can only be performed by someone who has earned a Bachelor’s degree in a specific field of study?
II. FEIN Mismatch: Overlooking Possible Delays In LCA Certification
A common reason for LCA denials is the Department of Labor’s (DOL) FLAG system’s inability to recognize a company’s FEIN or tax ID number.
If the FLAG system does not recognize a company’s FEIN, then the company needs to be “pre-verified” before an LCA can be submitted successfully. This pre-verification can take anywhere from 1-5 days.
Early preparation and submission of LCA’s will allow employers to take corrective measures like pre-verification should an FEIN “mismatch” arise. It will also help employers avoid any possible delays arising out of the sudden increase in the volume of LCA’s submitted for certification during the H1B cap filing season.
LCA Posting Requirements
1. The H1B employer must post the LCA at two conspicuous locations in the place of employment for at least 10 days.
2. The posting must be carried out on or within 30 days before the date the LCA is filed.
3. Willful violation of the posting requirement can result in fines or debarment of the employer from filing future H1B petitions.
III. Failure To Properly Determine Previous H1B Status
When looking to hire a foreign national who has previously been in H1B status, the employer must actually determine whether or not the foreign national has actually been counted towards the H1B cap.
If the foreign national had previously maintained H1B status through an exempt employer or position, he or she may not have been counted towards the H1B cap.
A foreign national transferring from an exempt employer or position to a cap-subject employer must have a new H1B registration submitted on his or her behalf by the employer between March 1 and March 18, 2022.
IV. Selecting Incorrect Data or Start Date on Form I-129
Entries made on the Form I-129 are critical. Employers often commit fatal errors while entering details in the form including errors related to start date, wages, or failure to select the appropriate options, or even using an incorrect version of the form, leading to undesirable consequences.
A.FY 2023 begins on October 1, 2022. Requesting an H-1B start date any earlier than October 1, 2022 in the Form I-129 will result in the petition being rejected.
B.USCIS also periodically updates its Forms with newer editions. Using an outdated version of the Form I-129 may result in the USCIS summarily rejecting the petition.
Petitioners must ensure to verify that their H-1B Cap petitions are being filed using the correct edition of Form I-129, and must seek a start date no earlier than October 1, 2022.
If the Beneficiary is currently in the U.S. on F-1 OPT and the work authorization is set to expire before October 1, 2022, then the petitioner must make sure to request a change of status to H-1B with an October 1, 2022, start date on the Form I-129 to enable the Beneficiary to qualify for a ‘cap-gap’ extension.
V. Filing With The Incorrect Fee or At The Incorrect Service Center
Another common error made when filing the H1B petition is in relation to the USCIS filing fees and filing location.
A. H-1B Filing Fee Errors
For all new cap-subject H1B petitions there are at least 3 required fees that must be submitted. An H-1B petition will be rejected if even one of the required fees is not included or is issued with an incorrect amount.
B. Filing At The Incorrect Service Center
USCIS generally establishes specific mailing addresses for purposes of identification and processing of H-1B cap-subject cases. Cap-subject H-1B petitions must be filed at the correct USCIS Service Center listed in the Selection Notice.
If an H-1B cap petition is sent to the incorrect USCIS Service Center, it is likely to be rejected and returned. This can take few weeks and can be most detrimental if you are unable to re-file timely before the filing deadline.
To avoid H-1B petition filing errors:
- Include a separate check for each filing fee – DO NOT COMBINE the filing fees into one check;
- Verify and re-verify that the checks have been signed and that you have included every single check, in the correct amount;
- Verify that all the necessary forms are included in the package. Lack of signatures on all the necessary forms will result in the rejection of the H1B petition.
- Verify and re-verify that the petition will be sent to the correct service center.
What are the H1B Cap 2022 Filing Fees?
- USCIS Electronic Registration Fee of $10
- USCIS Filing Fee of $460
- ACWIA fee of $750/$1500 ($750 if the employer has 1-25 full-time employees, $1500 if there are more than 25 full-time employees)
- Fraud Prevention and Detection Fee of $500
- Additional fee of $4,000 for employers that employ 50 or more employees in the U.S. if more than 50% of those employees are H-1B or L-1 status
Note: Certain educational institutions, nonprofit organizations, and nonprofit/government research organizations may be exempt from the ACWIA fee.
The competition for new H1B’s this FY 2023 H1B cap filing season is going to be even more intense than the previous years.
Along with timely filing, strict adherence to relevant H1B filing requirements is essential to ensure that a petition selected in the H1B lottery is not rejected or denied due to incomplete or improper filing.
VisaPro Law Firm can help increase your chances of H1B lottery selection and approvals.
VisaPro specializes in serving individual and corporate clients in various countries all across the world. Our experienced Immigration Attorneys are experts at handling complex immigration matters and can provide you with expert assistance necessary to achieve successful H1B cap filings.
To help H1B employers and applicants improve their chances of H1B lottery selection and approvals, VisaPro is offering a FREE 2023 H1B Filing Plan Consultation. In the planning discussion, we’ll talk through your priorities and recommend strategies for H1B 2023 filings based on our attorneys’ near 100% success rates.
To receive assistance with your FY 2023 H1B filing strategies, give us a call today! Our experienced attorneys will be happy to assist you.
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