Immigration Articles

Ensuring Your H-1B Cap Subject Petition is Properly Filed

We have reviewed the USCIS’ instructions for filing your CAP subject H-1B petition for FY 2014 and are using this checklist/guidance. It is compiled from Form M-735 and certain additional information from the USCIS’ filing instructions for CAP subject cases for FY 2014 available on their website.

We will ensure the following:

A. Proper Fees are enclosed:

• Base Fee of $325.00
• ACWIA Fee of $750.00/$1500.00 (if/as applicable)
• Fraud Prevention and Detection fee of $500.00 (if applicable)
• Public Law 111-23 Fee of $2,000.00 (if applicable)
• Premium Processing Service Fee of $1,225.00 (if applicable)

All Checks and money orders are signed and made payable to the “U.S. Department of Homeland Security,” or “U.S. Citizenship and Immigration Services,” dated within the last 6-months

B. Original Signature and Forms have the right revision date

• Complete all sections of the Form I-129, Petition for a Nonimmigrant Worker (Revision date of Nov. 23, 2010, or later), including the H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129) and the H-1B Data Collection and Filing Fee Exemption Supplement (pages 17 through 19).
• Sign the form preferably in black ink on pages 6,7, 10 (if applicable) and 12.
• Include a signed check(s) or money order(s) with the correct fee amount(s).
• Ensure that all required documentation and evidence is submitted with the petition at the time of filing for timely processing.

C. Premium Processing Request

Premium Processing requests must be filed with Form I-907 (08/10/09N (or later) edition). USCIS has temporarily adjusted its premium processing practice due to expected high volumes of immigration benefit requests filed during early April 2013. Premium processing for all cap-subject H-1B will begin on April 15, 2013. This also applies to H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher. USCIS has temporarily adjusted its premium processing practice due to expected high volumes of immigration benefit requests filed during early April 2013. Premium processing for all cap-subject H-1B will begin on April 15, 2013. This also applies to H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher.

To reiterate: the Form I-797 receipt notice may indicate the date that the premium processing fee is received; however, for cases received between April 1, 2013 and April 14, 2013, the 15-day processing period set by 8 CFR 103.7(e)(2) will not begin until April 15, 2013.

D. Labor Condition Application (LCA)

A certified Labor Condition Application signed by the petitioner must be enclosed with each petition.

E. Jurisdiction

The petitions must be mailed with appropriate labels (Regular CAP, C/S for Chile/Singapore, U.S. Master’s in Red Ink preferably on the top margin of Form I-129) to the California Service Center (CSC) or Vermont Service Center (VSC) consistent with filing jurisdictions and instructions listed at www.uscis.gov

F. Completing the Forms and Organizing

I. Form G-28, Notice of Entry of Appearance as Attorney or Representative

If the petitioner will be represented by an attorney or other accredited representative, a properly executed Form G-28 should be submitted. Each Form G-28 should include the following:

• All sections completed
• The printed name and signature of the representative
• The original signature of the petitioner.

II. Form I-129, Petition for a Nonimmigrant Worker

• Complete all sections of the form accurately.
• H-1B cap petitions and advanced degree exemption petitions for the FY13 cap must include an employment start date of no earlier than October 1, 2013. H-1B petitions requesting an earlier employment start date or a start date of “As Soon As Possible” or “ASAP” will be rejected.
• The petition is properly signed..
• Petitioners should enter their own address in Part 1, question 3 of the Form I-129 to ensure that the I-797 receipt and approval notices are sent to the petitioner.

Note: Using an address other than the petitioner’s address as the mailing address may cause processing delays related to the Validation Instrument for Business Enterprises (VIBE), as VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If petitioners use an attorney’s address as the mailing address on the I-129 petition, a cover letter should be included with the filing that clearly indicates the current address of the petitioner. This information will be used to assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address. In addition, if an attorney’s address is used as the petitioner’s mailing address on the form, the petitioner will not receive any I-797 notices.

• Ensure the beneficiary’s name is spelled properly and that his/her date of birth is displayed in the proper format (mm/dd/yyyy). Also, country of birth/citizenship and the I-94 number (if applicable) should be reviewed for accuracy.
• If the beneficiary will ultimately be seeking issuance of a visa at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing. For cases where the beneficiary will be seeking a change of status or extension of stay in the United States, you may still choose to submit a duplicate copy in the event the beneficiary will be seeking issuance of a visa at a consular office abroad following the approval of the change of status or extension of stay.
• If the beneficiary is seeking an extension or change of status, the petition should include evidence (e.g. Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
• Include a copy of the beneficiary’s valid passport.

III. H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129)

• Complete all sections of the form accurately.
• In listing previous periods of stay in H/L classification (question 3), include the actual nonimmigrant classification held (e.g. H-1B or L-1)
• Petitioner must sign the form, preferably in black ink.

IV. H-1B Data Collection and Filing Fee Supplement form (pages 17 through 19 of Form I-129)

• Complete all sections of the form accurately.
• Enclose pages 17 through 19 of the Form I-129 (with a revision date of Nov. 23, 2010 or later).
• Answer appropriately in Part A, question 2 and Part C, question 2 if the beneficiary has earned a master’s degree or higher from a U.S. educational institution as defined in 20 U.S.C. 1001(a).
• If the answer to the first question in Part D on page 19 is “No,” that the beneficiary will not be assigned to work at an off-site location, then responses to the remaining two questions in Part D are not required.

G. Preferred order of documents at time of submission:

• Form I-907 (if filing for Premium Processing Service)
• Form G-28 (if represented by an attorney or accredited representative)
• Form I-129, Petition for a Nonimmigrant Worker
• Addendums/Attachments
• H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile-Singapore petitions)
• H-1B Data Collection and Filing Fee Exemption Supplement
• All supporting documentation to establish eligibility
• Table of Contents for supporting documentation
o Tab items as listed in Table of Contents
Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.
SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
Form I-566 if the beneficiary is a current A or G nonimmigrant
DOL certified LCA, Form ETA 9035
Employer/attorney/representative letter(s); and
Other supporting documentation.
• Duplicate copy of the petition, if necessary. Clearly identify the duplicate copy of the petition as “COPY“, so that it is not mistaken for a duplicate filing.

H. Mailing multiple petitions together

If multiple petitions will be included in the same courier service or postal service package, place individual petitions into separate envelopes within the package. Individual petition envelopes should be marked with the following labels to reference the type of petition:

• Master’s Premium
• Master’s
• Regular Premium
• Regular
• Chile/Singapore

About kidambilaw

We are a Business Immigration law firm based in metro Bridgeport area of CT. We serve clients from all over the world.

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