MVP LAW GROUP – Immigration Q&A Forum, Friday, March 29, 2013

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – H-1B Nonimmigrant Work Visa
Are applicants with Master Degree’s given preference when filing for an H-1B under the yearly Cap?

Answer #1
The cap (the numerical limitation on H-1B petitions) for FY 2014 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.

*The applicant must have a U.S. Master’s degree or higher.

Question #2 – H-1B Nonimmigrant Work Visa
I recently read the H-1B cap quota may be filled in the first 5 days. When do my employer & I expect to be notified if my H-1B is accepted?

Answer #2
According to the USCIS FY2014 H1B CAP website:

Based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap. The lottery for the H-1B cap was last used in April 2008.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, in order to avoid delays in processing and possible requests for evidence.

Expect to be notified within the month of April 2013.

Question #3 – H-1B Nonimmigrant Work Visa
If my H-1B is not processed during the quota, what can I do to remain in the US?

Answer #3
Shortly after the quota is reached, our office will post a blog about other options – for instance, L1 nonimmigrant visa, O1 nonimmigrant visa, F1 student visa, etc. For more information about other options, please stay posted to our blog.

If you are interested in learning about other options now, please contact our office for more information.

Question #4 – H-1B Nonimmigrant Work Visa
What is the normal processing time for an H-1B visa? Does it change during the Cap?

Answer #4
Regular processing takes approximately 3-4 months from the date of receipt of filing. Premium processing takes 15 calendar days from the date of receipt of filing, for an additional USCIS filing fee of $1225.00.

Question #5 – H-1B Nonimmigrant Work Visa
My employer filed my case using Premium Processing. Will it help my case?

Answer #5
According to the USCIS FY2014 H1B CAP website:
Filing an H-1B petition requesting premium processing will not increase the chances of obtaining an H-1B under the quota. If you request premium processing and the case is accepted for processing, the 15 day premium processing window will start on April 15, 2013, according to the USCIS press release issued 3/15/2013. Please note that one perceived benefit of filing a cap subject H-1B petition with a request for premium processing is that a receipt notice may be issued faster than if filed under regular processing. Therefore, the petitioner and beneficiary may confirm sooner that the petition has been chosen in the lottery.

Question #6 – H-1B Nonimmigrant Work Visa
What is an LCA? Does my employer file it for me?

Answer #6
An LCA stands for a Labor Condition Application. It is a document that a sponsoring H-1B employer files with the Department of Labor (DOL) – Employment & Training Administration (ETA), when it seeks to employ nonimmigrant workers in a specific job occupation in an area of intended employment for not more than three years.

Question #7 – H-1B Nonimmigrant Work Visa
How can I check on the status of my H-1B case?

Answer #7
Once you receive a receipt number, you can go online and check the status of your case by going to http://www.uscis.gov and using the receipt number. The case status mechanism is located on the left hand side of the website.

Question #8 – H-1B Nonimmigrant Work Visa
My current H-1B is going to expire in 4 months. Can my employer file an extension for me to remain on H-1B?

Answer #8
Yes, if you are eligible for an extension. Extensions and transfers are not subject to the Annual CAP. Your employer may submit an extension filing up to 6 months in advance of the current expiration of your visa.

Question #9 – H-1B Nonimmigrant Work Visa
Right now, I am on a Student Visa and my employer has filed for an H-1B Visa for me. May I leave the country to attend my sister’s wedding?

Answer #9
Our law firm strongly recommends that you do not travel once your H-1B visa petition has been submitted to the USCIS.

For more information, or to discuss your particular situation, we recommend a scheduled consultation with one of our Attorneys.

Question #10 –H-1B Nonimmigrant Work Visa
While on an H-1B visa, can I immigrate permanently to the U.S.?

Answer #10
The H-1B nonimmigrant visa is a temporary work visa, only granted in 3 year increments for a period not to exceed 6 years, unless you have initiated the Green Card process prior to your 6th year in H-1B nonimmigrant visa status. The H-1B nonimmigrant visa is the only nonimmigrant visa that allows you to possess ‘dual intent’, to work on a temporary work visa and then eventually seek permanent residence in the U.S.

MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, April 12, 2013!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!