Preparing and Filing the H-1B Petition - Part 3
Filing the Petition with INS
The H-1B petition is filed by mail or express delivery, with the INS service center having jurisdiction in the area where the foreign national will work. There are four service centers in Vermont, Texas, Nebraska, and California with jurisdictions roughly in the eastern, southern, central, and western states, respectively. If the petition refers to multiple locations where the foreign national will work and includes an itinerary, the petition is filed with the service center having jurisdiction where the petitioner lists an address on the I-129 form. Similarly, if an H-1B beneficiary plans to perform services at multiple client sites which are not known at the time of petition filing, the petition should be filed with the service center having jurisdiction over the employer's corporate headquarters or other "home base" for the worker, as shown on the petition.
In the past, large employers have qualified for centralized filing of all petitions with one service center regardless of the job locations in an arrangement known as "sole jurisdiction." This generally required the petitioner to have its corporate headquarters or a major operating center in the jurisdiction of the particular service center, and to be a filer of a "substantial" number of petitions. Petitioners accepted into this program must include a copy of the letter from INS granting "sole jurisdiction" with each petition filing. The INS is no longer accepting new participants in this program, but will continue to honor the program for participants who are already accepted.
After a petition has been filed, the service center will send counsel for the petitioner, or the petitioner if he or she is pro se, a "Notice of Action" acknowledging that the petition has been received. This will include an INS petition file number and a telephone number for checking the status of the case through an automated system or with an "Information Officer" during business hours. Using the receipt number, the status of a petition may also be checked on-line through the INS web site at http://www.ins.usdoj.gov, in a new "Case Status On-line" feature added in October 2002. The Notice of Action will also include a range of time it "usually takes" for processing the particular type of case. These estimated processing times, which are also reported on the automated systems can be inaccurate. Actual processing times for H-1B petitions fluctuate widely through the year depending on factors such as whether the petition is subject to the cap, the point during the annual fiscal year H-1B cycle at which the petition is filed, competing short-term resource allocation priorities at the service center, and directives from INS headquarters. A service center may suddenly stop processing a category of petition for several weeks or even months. These delays are usually unforeseen and cause extreme frustration as petitioners wait for a seemingly interminable period for processing to resume. There is also variation in processing times among the service centers.
The INS has developed an information system whereby the service centers now release "Just in Time" reports at least once a month to the American Immigration Lawyers Association which describe their progress in processing various categories of petitions and applications. The Information Officers also provide this information over the telephone. These reports are usually more accurate than the "official" processing times stated in the receipt notices. Most H-1B petitions are processed to the initial response stage within one to three months, except when the cap quota has been reached for that fiscal year. Occasionally, however, particularly at the California service center, processing times have reached five months or more.
Petitioners frequently have an urgent business need for the services of the H-1B professional and feel they will be harmed by waiting an unpredictable and lengthy processing time and, for this reason, they wish to have petition processing expedited. To address this need, Congress authorized a "premium processing" program for filing of employment-based petitions with INS whereby "business customers" may receive certain enhanced services in return for paying an extra $1,000 fee, to be used by INS for additional staff and infrastructure improvements. This process was made available for H-1B petition filings effective July 30, 2001. In a "premium process" filing, the petition is submitted with the additional fee and a new form I-907, to a special address established at the Service Center solely for such filings. The petitioner will receive a guaranteed response to a petition filing within 15 calendar days, either an approval, request for additional evidence or notice of intent to deny, and will have fax and/or e-mail access to the service center for responding to an RFE and receiving notification of actions taken. If the response is a request for evidence, a new 15-day guarantee period will begin when the additional evidence is submitted. The petitioner can include a self-addressed overnight delivery service envelope for immediate shipment of the Approval Notice.
Premium processing has proved popular despite the high fee because it enables petitioners and beneficiaries to engage in regular planning for a start date, in scenarios where employment cannot begin until petition approval. "H-1B portability" was also designed to alleviate the frustrations of lengthy adjudication and consequent harm to employers, at least in "H-1B transfer" cases, by allowing such beneficiaries to begin work for the new company much earlier, and does not require any additional fee. Premium processing is thus most useful in out-of-country cable notice petitions, or change of status petitions where the previous status does not allow the employment. In all cases though, premium processing has the benefit of getting an answer from INS promptly and eliminating long periods of uncertainty in the process.
Prior to the availability of "premium processing," each service center had a defined procedure to request expedited handling for urgent petitions. These procedures have now been discontinued for all but non-profit petitioners. In making the request, such a petitioner must be able to demonstrate a true humanitarian emergency such as a life-or-death need for the beneficiary's services, or a truly extraordinary business need, tied to specific dates, with a major, demonstrable loss of revenue or similar harm that will result if the person is not able to perform the services requested without delay. The petitioner must also be able to show that the expedite request does not result from its own failure to take timely action when it became aware of these circumstances. In practice, expedite requests that state generally that a person is needed "as soon as possible" for an "urgent project" are almost never granted, no matter how vociferous the petitioner's protestations that the project is vital to the company. If the petitioner can afford it, premium processing is the only way to be sure to have the urgent need addressed.
Requests for Evidence
After its initial review of the petition, the service center may send the petitioner a "Request for Evidence" ("RFE") indicating that certain required initial evidence is missing, or that the evidence submitted either does not fully establish eligibility for the requested benefit or raises underlying questions regarding eligibility. The petitioner is given twelve weeks from the date of the notice to respond. No extension of this twelve-week response time is possible, nor are interim benefits granted during the period prior to the submission of additional evidence. During the twelve-week response period the petitioner may (1) submit all the requested initial or additional evidence, (2) submit some or none of the requested evidence and ask for a decision based upon the record, or (3) withdraw the application or petition. If the petitioner does not respond within the time limit, the petition will be considered abandoned and will then be denied.
The RFE will list the specific areas of eligibility under the applicable standards about which the INS adjudicator has concerns, quoting liberally from the regulations and listing categories of additional evidence the INS requests in order to respond to its concerns. In recent years practitioners have complained to the INS about overly broad "shotgun"-style Requests for Evidence which do not give a clear picture of the specific areas of concern but vaguely advise the petitioner that it must submit additional evidence in all areas, or recite very long, standard lists of documents, many of which the petitioner might have already sent, or which might be completely inapplicable to the case. In response, INS has stated that it will train its officers to be more focused in their requests.
Nevertheless, the requests can go on for several pages and appear to impose a daunting burden. Many petitioners' first reaction is to call the INS and complain, or try to speak to someone to clarify the request. The service centers will not discuss the requests over the telephone, and Information Officers are instructed to tell petitioners to prepare the response as best and thoroughly as they can and to argue in a letter if they feel certain of the requests are inappropriate or unnecessary. Under the regulations, the petitioner has only one opportunity to respond.
The petitioner should resist the temptation to hastily prepare an application because of an urgent need for the beneficiary's services. It is prudent to take the time to compile thorough supporting documentation and/or prepare additional argument. An RFE invariably requires submission of more documentation on a particular issue than that which might have been sufficient in the initial submission, and this can cause significant delay and expense. For these reasons, in the initial submission it is best to err on the side of more thorough preparation so that the case will be approved upon initial submission without the need to respond to a Request for Evidence.
Regular practitioners in the H-1B field tend to share information and can thus spot trends in service center issuance of RFEs. Periodically, one service center or another will seem to be issuing more RFEs or will seem to be concentrating them on particular issues. Sometimes this comes from a shift in personnel in the H-1B adjudications area, where newer examiners tend to apply evidence criteria more strictly, and other times from a service center initiative to focus on a particular area of concern in the H-1B program.
In submitting the petitioner's response to the RFE, it is important to return the RFE itself with the evidence, which will facilitate the new submission being matched up at the service center with the file for final review.
If there is a request for change or extension of status pending and the beneficiary's prior status has expired, the foreign national may continue to wait legally in the U.S. throughout the RFE process. Similarly, work authorization arising under the H-1B provision of AC 21 will continue.
The Notice of Approval
After consideration of all the evidence, the service center may approve the petition. It will then send the petitioner a written notice of the approval on INS Form I-797 ("Notice of Action") containing the beneficiary's name, the classification approved (H-113), and the petition validity period. The notice will specify the U.S. consulate that was notified if the petition requested such action. If the petition requested a change or extension of status for the beneficiary in the U.S. and the service center finds the beneficiary eligible for change or extension of status, it will approve that request at the same time. In such a case the notice of approval will include a tear-off section at the bottom specifying the new or continued H-1B status for the person in the U.S. and the period of stay authorized. A portion of the tear-off section constitutes a new "Form I-94 Departure Record Card" to replace the I-94 card the person would have been issued upon his or her last entry into the U.S.
It is important to check all the details on the notice of approval right away, particularly the spelling of the beneficiary's name, his or her birth date, the petition validity period, and the I-94 Departure Record Card number (which should match the number on the prior card). If any errors are discovered, a new notice of approval should be requested immediately to correct the mistakes. Each service center has its own procedure.
In some circumstances, the service center may approve H-1B classification for the beneficiary but not a requested change or extension of status. The petition is then "converted" to a general petition, and the petitioner is usually given the opportunity to request notification to a particular consulate. Expert counsel should be sought before the foreign national departs the U.S. to apply for an H-1B visa at a U.S. consulate, however, because the underlying reason for denial of the change or extension of status may also cause problems at the consulate with the visa application, leading to the foreign national being denied permission to return to the U.S. at that time (or permanently).
Normally, the service center processes any application for change to or extension of H-4 status for family members along with the H-1B petition for the principal beneficiary, and will send a separate Form I-797 Notice of Action approving the H-4 status for each family member at the same time as the H-1B notice of approval. All details on these notices should be checked carefully, particularly the H-4 validity period to make sure it is co-extensive with the principal's H-1B period. Sometimes the application for change or extension of H-4 status becomes separated at the service center from the primary H-1B petition, and it therefore takes longer to process. It is important to take any necessary follow-up steps to make sure the H-4 application is properly approved, and that each family member receives his or her appropriate notice, to avoid any problems of inadvertent overstay or unlawful presence.
The H-1B Visa Application and Entry into the United States
For a beneficiary located outside the country, the next step is to apply for an H-1B visa at the U.S. consulate in his or her country of residence. This generally requires submission of a passport, certain visa application forms, original INS notice of approval, copies of the I-129 Forms, the LCA, a company supporting letter and other petition supporting documents, an original academic diploma and transcript, other relevant professional credentials, photographs, and a fee. The foreign national must report for an interview to answer basic questions about the company, its job offer, and the foreign national's claimed credentials. The purpose of the visa interview is not to readjudicate the petition but to verify through face-to-face questioning that all the representations about the job and the foreign national's qualifications contained in the petition are, in good faith, true.
Actual procedures at U.S. consulates around the world for visa applications vary based on the volume of applicants who are seen at the consulate, concerns with fraud, and other local practices. In some posts, for example, an applicant must make an appointment for an interview several weeks in advance, whereas in others interviews are conducted on a walk-in basis or are not required at all unless the consulate specifically requests one after initial review of the application which is submitted by mail, courier, or through a drop-box on consular premises. The actual level of documentation that must accompany the application also varies. Some consulates will issue a visa based on the Notice of Approval, without additional materials, or even based only on the INS cable notification. Others require all the materials listed above and scrutinize them carefully. Generally, consulates in western European countries are more flexible and "user-friendly," whereas consulates in India, China, Russia, and Ukraine, among other locations, have more strict policies and procedures due to the high volume of applicants and concern over alleged patterns of applicant fraud.
It is important to understand that the relevant government agency the applicant reports to at a U.S. consulate is the U.S. Department of State ("DOS"), not the INS. DOS has its own guidelines, policies, and regulations for issuance of visas stated in the "Foreign Affairs Manual" ("FAM"), a reference governing all operations at the consulates.
The consulate will generally not question a decision INS has made in an H-1B petition based on the evidence before it. However, petition approval does not per se establish that the foreign national is eligible to receive a visa. If the consular officer is not satisfied with the answers provided in the interview, he or she can refuse the visa. The typical reasons for visa refusal that consulates give are: (1) the employer is not making a bona fide job offer, because it does not have sufficient operations or financial resources to show a need for the alien's services or ability to pay the wage offered, (2) the job offered is not in fact a specialty occupation, (3) the alien does not have the proper qualifications for the specialty occupation, or (4) there has been some other fraud or misrepresentation.
There are two types of refusal actions taken by consulates: (1) the consulate might simply inform the person that he or she has not presented sufficient documentation to warrant issuance of the visa, advises as to what is needed to satisfy the concern, and allows the person an opportunity to return later with the requested items, or (2) in the more problematic scenario, the consular officer learns, during the interview or a follow-up investigation, of specific information "unavailable" to INS in its adjudication process that contradicts information in the petition filing. In this case, the consulate can deny the visa application and refer the petition back to the INS with a report summarizing the officer's concerns and recommending that the petition approval be revoked. In some consulates, a large percentage of H-1B visa applicants are, after an initial screening interview, referred for a more detailed interview specifically designed to investigate potential fraud in the foreign national's credentials. Most fraudulent representations concern failure to possess academic degrees or appropriate experience and/or technical skills. Consulates scrutinize the bona fides of a company and its job offer carefully if the company is small or a start-up. The consular officer may require more information than the INS did regarding the company's "ability to pay" the wage, for example, such as quarterly tax returns and current financial statements, and the officer may look very closely at the documented level of gross income compared to the number of H-1B applicants being processed. If the consulate is not satisfied that demonstrated cash flow will immediately support salaries for the entire group of workers, it will refuse the visas. This stems from a concern that a peson not be admitted to the U.S. and then become a "public charge" due to the employer's nonpayment of a promised salary. This concern is more acute where there are H-4 family members applying with the principal, all of whom will require support from the putative salary.
In the wake of the 9-11 terrorist attacks, Congress and the State Department have enacted several measures to enhance national security in the visa application process. Under the Enhanced Border Security and Visa Reform Act of 2002 ("EBSVRA"), for example, consulates must conduct a special background check on all visa applicants from certain countries designated "state sponsors of terrorism" (currently North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya), which can add significant delays to the normal visa processing period. On its own initiative, through most of 2002, the State Department imposed a special 20-day background check for all male applicants aged 16 to 45 from a broader list of 26 predominantly Muslim countries, which in practice caused months-long delays in visa processing. That procedure has ostensibly ended, but at its discretion the State Department may impose additional visa-screening procedures at any time. Applicants should plan accordingly and be prepared for delays.
Any spouse or dependent children under twenty-one years of age planning to accompany the principal H-1B foreign national to the U.S. may apply for H-4 visas at the same time as the principal, or they may apply at a later date and "follow to join." Note that persons in H-4 status are not authorized to accept employment. They may, however, engage in study at a public or private school.
The H-1B and H-4 visas are normally issued for a period coextensive with the petition approval. Usually, the visas are valid for multiple entries into the U.S. At some consulates "reciprocity" issues with the host country dictate that these visas be issued for a shorter period or for fixed numbers of entries.
If the H-1B visa is granted, the foreign national and any family members who have H-4 visas may then travel to the U.S. At the port of entry, they may request admission for the period of the petition approval plus ten days. The ten days, if it is added to the period of admission, allows a grace period at the end of the petition validity for a person to wind up affairs and leave the U.S. It does not extend authorization to work for that period. The beneficiary may also seek entry up to ten days before the beginning of petition validity to get settled before beginning work. Having an H-1B or H-4 visa does not guarantee admission, however; the INS inspector at the port of entry may interview the foreign nationals and refuse admission if grounds of inadmissibility are identified.
Canadian citizens, who are visa exempt, may use the Notice of Approval to apply for admission directly at the border without going through the visa process.
In another new procedure added in the wake of 9-11, certain entering H-1B and H-4 nonimmigrants will be subject to "special registration." These persons will be fingerprinted and photographed at the time of admission, and then must report to INS, in person, 30 days after arrival, every 12 months, upon a change of address, employment or school and when departing. At the present time, those subject to the procedure upon entry are all nationals of Iran, Iraq, Libya, Sudan and Syria. Males 16 or older who are nationals or citizens of those countries as well as an expanded list of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates or Yemen, who entered the U.S. prior to certain dates in September 2002 must also report to INS for registration.
Next Week: Entering the U.S. and Beginning Work, Post Approval Travel and Visa Processing
 Department of State (DOS) Form DS-156, and for males aged 16 to 45, DS-157; Form DS-157 is a new form added this year asking a variety of background information on education, training, career experience, travel history and any participation in armed conflict.
 Most consulates have web sites which can be accessed through http://usembassy.state.gov or http://travel.state.gov/links.html to review local information n procedures and requirements. A directory of other consular contact information may be found at http://travel.state.gov/visainfo.html.
 A useful table of visa reciprocity may be accessed at http://travel.state.gov/visa_services.html.
About The Author
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-second in a weekly 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.
For the latest updates from the Foley Hoag Immigration Practice Group, including weekly Process Time Updates from the Vermont Service Center, click here.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
Share this page
Bookmark this page
The leading immigration law publisher - over 50000 pages of free information!
© Copyright 1995- American Immigration LLC, ILW.COM