H-1B Article 21: Preparing and Filing the H-1B Petition - Part 2
Of particular importance in the post 9/11 environment is attention to detail in entering the correct spelling of the H-1B beneficiary's full name and the correct date of birth. Starting in early 2002, INS implemented a procedure of background checks for all individual petitioners, applicants or beneficiaries in the "Interagency Border Inspection System" (IBIS) database, which contains a variety of law enforcement, customs and immigration records. If any of the beneficiary's identifying data in the petition is incomplete or incorrect it will at minimum slow down the IBIS record check process and may cause an unintended "hit" in the database that will take weeks or months resolve. INS advises that to speed the IBIS process the petitioner should spell out all first and middle names in full, rather than using initials, and include copies of identifying documentation on the beneficiary such as the passport data page and (where applicable) a social security card and driver's license.
Other questions in Part 5 and on the "H Supplement" to the form seek information about the petitioner's business and its gross income and number of employees, the title, salary, and description of the job, and the beneficiary's credentials and work experience. The petitioner should prepare concise, well-thought-out answers to these questions to quickly establish for the INS, in summary fashion on the face of the petition, that the employer is a viable enterprise, that the position is a specialty occupation, and that the beneficiary has the appropriate qualifications for the occupation.
Part 5 also requires specification of the address where the person will work. If this address differs from the one on the front of the form, perhaps representing a particular client site or a separate office of the petitioner in another city, the appropriate work location should be entered. If the position involves a known itinerary of multiple locations, the itinerary should be included, with all the dates and locations where services will be performed. If the position involves the potential for relocation to multiple unanticipated locations based on business needs, without a known itinerary, the petition should identify the initial location, or if the initial location is unknown, the location constituting a permanent home base, and include a statement about the potential for reassignment. Such scenarios arise where a large company has multiple office locations around the country and wishes to retain flexibility to transfer H-1B workers between its offices, or where a consulting or staffing company has clients in multiple locations and expects to reassign H-1B workers at the conclusion of a project. When the beneficiary is outside the U.S., often the actual location where he or she will perform work after entering the country is unknown when the petition is prepared. Then it is appropriate to insert the "permanent home base" location on the petition.
The form also requires specification of the "dates of intended employment" in Part 5, another matter needing careful attention. The requested period for an initial petition or an extension may be up to three years, or until the end of the validity period of the LCA, whichever occurs first. It is important to be aware that the H-1B worker's initial period of stay in the U.S. in H-1B status may not exceed six years. Therefore, if a full three-year petition validity would exceed the foreign national's six-year maximum stay, the requested period must be shortened accordingly. It then becomes important to list with precision on the H Supplement all the foreign national's prior periods of stay in the U.S. in H classification. If the foreign national has spent time outside the U.S., the periods of stay should be broken out by entry and exit to reflect only the time actually spent in the country. The exact number of months and days in the U.S. in H-1B status can then be totaled and used to calculate the full balance of time available to make up the six-year maximum. That period of time is then used for the requested petition period. In this manner, the petition ensures that time spent outside of the U.S. is "recaptured" so that the person is granted a full six years in the U.S. ["Recapturing" time will be discussed further in a later article in this series].
When the foreign national has reached the six-year maximum period of stay in the U.S. in H status, he or she may then qualify for additional periods of extension of stay in one-year increments, if an employer has taken steps in a permanent residence process for the person under AC 21 and additional amendments enacted in November 2002. H-1B nonimmigrants may extend H-1B status in one-year increments beyond six years if 365 days or more have elapsed since:
(a) the alien's employer filed a labor certification application for the alien with the DOL or,
(b) in cases where labor certification is not required, the employer or the alien filed a Form I-140 Immigrant Petition with the INS.
Extension of H-1B status beyond six years is also available to foreign nationals who have not been able to file an Adjustment of Status application because per-country limitations have prevented their priority date from being current. The foreign national must have an approved INS Form 1-140 petition to qualify for the extension. The extension lasts until the Adjustment of Status application is adjudicated.
If the H-1B nonimmigrant does not qualify for a seventh-year extension pursuant to the AC 21, then H status will be unavailable until the foreign national has resided and been physically present outside the U.S. for a full year. Brief trips to the U.S. for business or pleasure are allowed and are not interruptive of the year, but such time spent in the U.S. may not count toward fulfillment of the required time abroad.
It is important to read all of the form instructions carefully because they are expressly incorporated into the governing regulations for the petition process.
Finally, the petition forms must be signed by an authorized official of the employer, such as a human resources representative, a manager in the department where the foreign national will work, or a company executive. By signing, the official attests under the penalties of perjury (1) that all information in the petition is true and correct, (2) that he or she expressly agrees to abide by the terms of the labor condition application during the petition period, and (3) that the company will be liable for the reasonable costs of return transportation of the foreign national abroad if he or she is dismissed from employment by the employer before the end of the period of authorized stay.
It is also important to complete the I-129W form carefully. This form collects data on the education level, field of study, and salary of the alien, and is used to (1) report whether the employer is H-1B dependent or a willful violator, and, if so, to claim any applicable exemption from the additional LCA attestations associated with such status, (2) claim exemption from the $1,000 education and training portion of the filing fee, and (3) claim exemption from the H-1B cap annual numerical limitation.
If any of the forms are not completed and signed properly or the proper fee is not attached (see below), then the INS service center will "reject" the petition and mail back the entire filing.
If the petition materials were prepared by counsel, the employer must sign Form G-28, on which the attorney enters his or her appearance as the employer's representative. Most employers have their own attorney prepare the petition papers, but some direct the foreign national beneficiary to hire his or her own attorney or otherwise to manage the process. This is permitted under law, but the employer should remember that any attorney the foreign national hires would be representing the company before the DOL and the INS, regardless of who pays the fees, because the Labor Condition Application and H-1B petition process is, legally, the responsibility of the company sponsor, not of the foreign national. The employer might not be comfortable being represented by an attorney with whom it does not have a regular relationship and who prepares forms and other documents for it which, when signed, create binding legal obligations to the government and to the foreign national. As a result, most employers retain their own corporate immigration attorney.
There are petition filing fees to be paid. In most circumstances the petition filing fee is $1,130, which consists of a base filing fee of $130 plus an additional fee of $1,000 mandated by ACWIA and AC 21, also known as the "education and training" fee. This total is normally remitted in a single payment. Certain categories of employers, and certain types of petitions, are exempt from the "education and training" component of the fee:
(1) The following categories of employers are exempt from the $1,000 education and training fee:
It is important to note that the employer must pay the $1,000 education and training component of the filing fee. The INS will accept the fee only from the employer or its authorized representative, and the employer may not require the foreign national to reimburse or compensate it for the fee, nor may the employer accept any reimbursement or compensation offered by the foreign national.
The petition must include a Labor Condition Application certified by the Department of Labor in the occupational specialty. Where the LCA has been certified by DOL for multiple position openings, the petitioner should attach a "Detail Sheet" listing the beneficiary names, date of filing, and INS file numbers for all prior H-1B petitions that the LCA has been filed with, to demonstrate that all the "slots" have not been used.
If the requested action for the H-1B petition is an extension, amendment, or change of status in the U.S., the petition package must include evidence establishing that the beneficiary was lawfully admitted to the U.S., that said beneficiary has maintained his or her nonimmigrant status since admission, and that the petition is timely filed before expiration of the prior status and any applicable grace period. This typically includes copies of the foreign national's most recent I-94 admission record card, any INS approval notices for H-1B or another status, documents showing student or exchange visitor status, any INS employment authorization (such as an EAD card), and documents outlining the foreign national's activity in the prior status, such as copies of pay statements showing employment with a prior authorized employer, or a school diploma and transcripts. If the prior status was H-4 or another derivative status as the dependent of a principal foreign national, the documentation must also include evidence of the principal's maintenance of status.
The H-1B petition package should include a supporting letter from the petitioner on company letterhead, describing in greater detail than fits on the forms: (1) background information about the petitioner and the nature of its business, (2) the position offered and its requirements, and (3) the foreign national beneficiary's qualifications to perform the position offered. The purpose of the letter is to present in detail the petitioner's case for approval of the petition, clearly addressing all applicable legal requirements. Like the forms, the letter is typically signed by a human resources official or a manager/executive in the area where the foreign national will work.
The statements in the company letter should be substantiated with supporting documentation. At a minimum, the petition must include independent evidence generally showing (1) the nature and viability of the employer's business, (2) that it is capable in good faith of making the job offer, (3) that it has the financial ability to pay the wage stated in the petition, and (4) that the foreign national has the appropriate academic and/or professional credentials to qualify for the specialty occupation. The actual quantity and variety of supporting documentation the petitioner includes may vary, subject to the judgment of petitioner and counsel and depending on the extent to which the petition is straightforward or presents unique or unusual circumstances calling for special evidence or additional argument.
In general, all petitions will include at least the petitioner's annual report and general promotional literature, and a resume, academic degree, and transcript of the foreign national, with evaluation of the education credentials if they were earned outside the U.S. Smaller and less-established or start-up businesses should submit additional evidence concerning operational status and finances of the company. If the foreign national does not possess a straightforward academic degree normally required by the specialty occupation, the documentation should include professional training certificates, letters verifying prior employment experience, other evidence of qualifications, and/or college official or "recognized authority" evaluations. The employer may also wish to include special evidence concerning the "specialty occupation" status of the job, such as an expert report evaluating the position and its requirements.
Copies of supporting documents may be submitted rather than originals. Where the petitioner or attorney has access to original documents, it is good practice to submit "certified" copies prepared by the attorney.
The petition package is submitted in duplicate signed originals of the relevant forms accompanied by duplicate copies of the other materials. The INS will forward the duplicate petition package to any U.S. consulate for which the petitioner requested that INS provide notice of approval.
Finally, if the foreign national is in the U.S. and seeks to change or extend status, and is accompanied by dependent family members, there will normally be a separate application of the family members to change to or extend H-4 status. This application should be filed even if family members already have H-4 status for some extended period based on the principal's H-1B approval with a prior employer, in order to keep the family members' H-4 status periods co-extensive with any new period of H-1B status that is granted to the principal. Failure to take this step often leads to the family members' inadvertently overstaying their legally authorized stay in the U.S. The Form I-539 application of the family members is submitted as part of the overall H-1B petition package, and should include copies of the passport, visa, and I-94 admission record cards, any prior extension or change of status approval notices, evidence of the family relationship with the H-1B principal such as marriage and birth certificates, and a separate filing fee of $140.
Next Week: Filing the Petition with INS
 Indeed, the regulations expressly provide that the beneficiary is "not a recognized party" in the petition proceeding.
 Having an arrangement where the beneficiary pays legal or other costs associated with the preparation and filing of a Labor Condition Application and/or H-1B petition is also inadvisable because it complicates the "required wage" analysis in the LCA process. DOL regulations characterize such costs as the "employer's business expense" and specify that any imposition of the costs on the beneficiary, whether by payroll deduction or by the beneficiary directly paying the costs outside the payroll system, constitutes an "unauthorized deduction" from the employee's wages that are used in satisfaction of the "required wage" obligation. As discussed below, there is a separate express, absolute prohibition on the employer imposing payment of the $1000 education and training portion of the filing fee on the beneficiary.
George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.
This article is the twenty-first in a series by George N. Lester IV of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
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