The H-1B Cap Mess

Question: I will be filing an H-1B case on April 1, 2008. Last year, I understand that all H-1B's were used up in about 16 hours after filing. What might happen this year?

Answer:USCIS just published some rules to attempt to make the 'lottery' process for the H-1B's filed to be more fair this year. Under the interim final regulation, if the USCIS receives a sufficient number of petitions to satisfy the cap at any time during the first five business days on which petitions for the upcoming fiscal year may be received, all cap-subject petitions received during the first five business days will be included in the random-selection lottery. This should at least make it more fair in that it will give 5 days of filings for all cap cases to be considered for the lottery.

Question: How should the H-1B's be filed?

Answer: You can use various delivery services (e.g., DHL, FedEx, UPS, other approved couriers, etc.) through close of business from April 1-7, 2008. Close of business means 5:00 pm local time at the location of the service center. However, on the last day (April 7, 2008), USCIS will accept deliveries from couriers until 7:00 pm local time. Other than that last day, USCIS will accept deliveries from 6:00 am through 5:00 pm, local time.

Question: How are petitions filed via U.S. Postal Service (USPS) handled?

Answer: Unfortunately, USCIS does not consider the package received or timely filed until it is actually on-site at the Service Center. The service centers pick up correspondence delivered to the P.O. Box at one or more scheduled times during the day. Therefore, while customers may file applications by USPS at the P.O. Box, delivery to that P.O. Box does not ensure that the filing will be picked up by the USCIS the same day it is placed in the P.O. Box by the USPS, and thus, will not be considered timely filed.

Question: What about an H-1B petition that is aboard a delivery truck and in line for delivery prior to the time the CSC and VSC stop accepting deliveries, but does not get to the front of the line until after closing on April 7, 2008?

Answer: If at 7:00 pm on April 7, 2008 there are still trucks attempting to delivery packages, USCIS has indicated that the Service Centers will work out a process to get those packages into the system.

Question: What if I need a professional license to perform the position, but I cannot either get the license without an approved H-1B?

Answer: In this type of situation, the USCIS must see that the applicant is fully qualified to get the license and that it is only the policy of the licensing committee of that particular area of work that has created this 'catch 22' situation. USCIS can then approve the petition with the understanding that the applicant has one year to get the license and file an amended petition to show that he or she in fact got the necessary licensing.

Time is quickly running out for H-1B's. Therefore, if you can file, you should be preparing everything at this time.

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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th and 11th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.