| 1. | What is the H-1B cap? |
| Each year, coinciding with the start of the government’s fiscal year on October 1, the USCIS makes a predetermined number of new H-1B visas available to those who qualify. New H-1Bs may be obtained for those nonimmigrant foreign workers who will work in the US in a specialty occupation and have not previously been in the US in the same visa category in the past year. This is the most popular work visa category for foreign professionals in the US and during the last few years, the number of first time individuals requesting these visas has outnumbered the visas allotted. The H-1B Cap, as it is known, is presently set at roughly 58,000 with an additional 20,000 H-1Bs available to those who have already earned a master’s degree from an accredited US institution.
Back to Top |
|
| 2. | How soon will the H-1B cap be hit? |
| Based on the previous year’s filings, the USCIS should expect to receive more than enough petitions to meet the regular H-1B cap of 58,000 on the first day that filing is allowed, April 1, 2009. It is also likely that the demand for master’s cap H-1Bs will exhaust that cap shortly thereafter.
Back to Top |
|
| 3. | What happens when the H-1B cap is hit? |
| H-1B petitions received on the day numbers are exhausted will be subject to a random selection lottery to determine which filings will be eligible for adjudication. Any petitions not selected in the lottery or received after the caps are met will be returned and have their filing fees refunded by the USCIS. To guarantee that an H-1B petition subject to the cap will take part in this year’s potential lottery, it must be sent via overnight courier to the USCIS on March 31, 2009 for delivery on April 1, 2009.
Back to Top |
|
| 4. | How do I get started filing an H-1B for the new cap? |
| To get started, The Bae Law Group requests that the employer and the H-1B candidate each complete a questionnaire designed to provide us all of the information needed to complete a successful H-1B petition. Questionnaires will include a list of documents we need as quickly as possible, including passport copies, university transcripts, and documentation of any current and prior immigration/visa status or employment authorization.
Back to Top |
|
| 5. | How long does it take to prepare an H-1B for filing under the new cap? |
| Once we receive all the requested information and documentation from employer and candidate, The Bae Law Group prepares the forms and employer support letter for the petition. This takes anywhere from 1 to 5 days, depending on current case loads and the complexity of the case. Once these items are prepared, they are sent to the employer to review and sign and return to us to prepare the petition. For cases that are received by The Bae Law Group several weeks before the April 1, filing deadline, we will work on the cases, but will not send forms for review and signing until we are closer to the filing deadline, in mid-March.
Back to Top |
|
| 6. | Do I need to obtain an education evaluation? |
| If the H-1B candidate has a university degree from a foreign institution or has the equivalent of a US bachelor’s degree based on a combination of foreign education and professional experience, we will be required to obtain an education evaluation that states that the candidate’s foreign degree or combination of foreign education and work experience are the equivalent of earning a US bachelors or higher degree. To do so, our office will need good quality copies of the candidate’s diploma(s) and academic records, along with English translations, if necessary. It can take from 2 to 10 days or more to obtain a completed evaluation and the evaluator charges a fee for evaluations based on the level of service requested.
Back to Top |
|
| 7. | How soon does an H-1B petition need to be filed under the new cap? |
| To ensure that a new H-1B petition is included in any potential lottery, it must be prepared and sent from our office on March 31, to arrive at the appropriate USCIS service center on April 1.
Back to Top |
|
| 8. | How will I know when my H-1B cap case has been filed? |
| The Bae Law Group sends an email to the employer and the candidate when their petition has been sent from our office.
Back to Top |
|
| 9. | How will I know if my case is selected for adjudication? |
| After about one week, the USCIS should confirm whether or not they received more than enough petitions to meet the cap and provide information about any necessary random selection lottery for all the petitions received. During this period we will keep the employer and candidate informed by email about the lottery and whether or not your petition has been selected in the lottery. If a case we filed is selected in the lottery, we should receive a receipt notification from the USCIS in one to five weeks, a copy of which will be forwarded to the candidate and employer.
Back to Top |
|
| 10. | When a petition is selected for adjudication, how long will it take for a decision? |
| Those petitions that are selected for adjudication will take anywhere from 30 to 120 days or more to process.
Back to Top |
|
| 11. | Will filing a request for Premium Processing on my case improve the chances that it is selected for adjudication? |
| Contrary to rumor, requesting the USCIS premium processing service for cap affected cases does not increase one’s chances for adjudication and approval. Further, the service comes with an additional $1000 filing fee. Given that petitions selected for adjudication should be processed long before their October 1 start date, it is generally unnecessary to request premium processing service. Please be aware that if circumstances arise where it becomes necessary to obtain a decision on a pending case within 15 days, premium processing service can be requested at anytime during the processing of an H-1B petition after the receipt notice arrives.
Back to Top |
|
| 12. | What happens if my case is not selected for adjudication? |
| If your case is not selected for adjudication by the USCIS because they receive more H-1B petitions than there are numbers available, we will be notified by the USCIS, and the employer’s filing fees will be returned. Such notification and returning of filing fees can take several weeks.
Back to Top |
|
| 13. | What happens after a cap case is approved? |
| When an H-1B case is approved, our office is usually notified by email on the day it is approved and an Approval Notice (Form I-797) is sent to our office. We notify the candidate and employer immediately when we know that their petition is approved, and send information about how and when the original approval notice will be sent to the employer and candidate. Typically, the original approval notice and a copy of the petition will be sent to the H-1B employer to be forwarded on to the candidate.
Back to Top |
|
| 14. | Do I need to leave the US and re-enter as part of the H-1B process? |
| If you are currently in the US in a nonimmigrant status (such as F-1, TN, L, etc.) that is valid through October 1, 2009 and not from Canada, we will request a change of status for you to H-1B, which will be valid as of October 1. This means that your approval notice will include a new I-94 card denoting your H-1B status for your employer, with validity dates noted. You will be eligible to remain in the US in valid status as long as is noted on the I-94 card. It will not be necessary for you to leave the US and reenter to “enact” your H-1B status. However, if you leave the US and reenter after October 1 in H-1B status and you are not a Canadian citizen, you will likely need to apply for and be issued a valid H-1B travel visa before reentering the US after October 1.
If your current status is not valid through October 1, 2009 or you are Canadian, it is possible that you must leave the US at the end of your currently valid status. With the exception of Canadian citizens, you must apply for a valid H-1B travel visa at a US consular post abroad using your H-1B approval notice and enter the US in H-1B status no sooner than September 21.
Back to Top |
|
| 15. | If I leave the US before the start of my H-1B status or I am not currently in the US, how soon can I enter the US to start working in H-1B status? |
| You will be allowed to enter the US 10 days before the start of your H-1B (no sooner than September 21). You may commence work on October 1.
Back to Top |
|
| 16. | Does any paperwork need to be filed for my spouse or children? |
| H-4 status is for the spouses and minor children of H-1Bs. If you have dependants that accompany you now in the US in another status valid through October 1, 2009, we will file a request for a change of status for your family along with your H-1B petition. If your petition is selected for adjudication and is approved by the USCIS, your family’s request for a change of status to H-4 should also be approved, valid for the same dates as your H-1B status. If you are not currently in the US or you must leave the US before October 1, 2009, it is not necessary to file an application with the USCIS for your dependants. They will obtain H-4 status when they enter the US and are issued an I-94 card with entry stamp, the same as you. Unless they are Canadian citizens, family members that will accompany you to the US must first obtain an H-4 travel visa. They can apply at the same time as you apply for your H-1B travel visa at a US consular post abroad.
Back to Top |
|
