Labor Immigration Law

We have written before about the H-1B quote of 65,000 which opens on April 1, 2008 for starting employment date of October 1, 2008. We anticipate that the entire quota will be used on the first day of the filing. In light of such a small filing window, it becomes critical that the H-1B petition be completed and filed correctly.

Here are few helpful H-1B filing tips.

1. Clearly label all H-1B cases in red ink on top margin of Form I-129 petition. Use the following codes:
   • Reg. Cap (65,000 regular cap cases)
   • C/S Cap (Chile or Singapore H-1B1s)
   • U.S. Masters (20,000 cap exemption for Master’s degree or higher holders)
   • Exempt (for petitioners filed by certain institutions of higher education; nonprofits; and research organizations. Also, note new filing address for this category.)
2. Fill out Form I-129 and supplements correctly, consistently, and competently. This is an obvious one but it is worth mentioning again.
3. Employer must submt the correct filing fee:
   • Base filing fee: $320
   • American Competitiveness and Workforce Act of 1998: $750 for employers with 1 to 25 full time employees unless exemption applies or $1,500 for employers with 26 or more full time employees unless exemption applies
   • Fraud fee: $500
   • Premium Processing Fee: $1,000
4. Send only one petition per envelope.

Note that incorrectly completed or filed petitions may result in rejection or denial of the petition.

Many non-U.S. Citizens residing in the U.S. consider the change of address obligations imposed by the USCIS as unimportant and of no significance.  This is a mistake.  In a recent meeting between the National Benefits Center (NBC) and the American Immigration Lawyers Association (AILA), the NBC reminded all immigration attorneys and their clients that a change of address is an important procedure and it must be done in two separate ways.

First, the foreign national must file form AR-11 with the USCIS in Washington, DC.  Under the current regulations, all foreign nationals, including permanent residents), and without regard to whether they have petitions or applications pending with the USCIS must file the AR-11 form within 10 days of change of address.  This is a separate requirement which is not related and does not automatically affect the USCIS address change (see below).  The AR-11 form can be filed on paper or online.  It is important to keep a proof of filing such change of address.

Second, if the foreign national has current pending immigration-related petitions or applications, they must notify the USCIS of their new address by calling USCIS (at 1-800-375-5283) or by using their online system.   USCIS recommends these two methods as the best ways to update an address with regard to pending applications and petitions. The requested change will be processed within three days of receipt.

As a conclusion, we would like to underscore the importance of timely filing address of change with the USCIS whether or not the foreign national has pending petitions with the USCIS.  Failure to do so may result in long delays in processing or even denial of immigration benefits.