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How to File an H-1B Visa Petition

It is imperative that an H-1B visa petition is filed correctly, otherwise any errors committed on the form will cause an immediate rejection of an application. While the pool of applicants for the H-1B visa has increased significantly, a congressionally-mandated cap of 65,000 approved petitions for the year 2019 is still in place.

The Filing Process

An employer initiates the filing of an H-1B visa after completing an LCA (Labor Condition Application) and sending it to the U.S. Department Of Labor for approval. They then file the H-1B visa petition with the USCIS using Form I-129. Employers must be cautious in answering the questions thoroughly and accurately to ensure the approval of the H-1B visa petition. Any incompletions, missing or ambiguous information, or other subsequent errors can potentially hinder a successful petition approval. Employers must also be sure to include any supporting documentation that may be necessary along with the application.

Cap Exemptions

While strict cap requirements for the H-1B visa are still in effect there are scenarios that allow for some candidates to be eligible for cap exemptions. Employers are asked a list of questions on Part C of Form I-129 to verify that the person filing a petition meets the requirements of being cap exempt. Employers who qualify for cap exemptions include institutions of higher learning, non-profit organizations that are affiliated with institutions of higher learning, non-profit research organizations, government organizations, or other employers who will employ the H-1B visa recipient to work for them at other institutions that are protected under cap exemptions. The USCIS is strict on cap exemptions for employers, so it is important for employers to ensure that they file the correct version of cap exempt status on the petitioners’ behalf. Employers who submit cap exempt petitions must use red ink to label Form I-129 as “Exempt.” They should also label the remainder of form I-129 with red ink using written codes to indicate the specific type of cap exemption necessary:

  • “Regular Cap” — petitions falling under the standard 65,000 cap threshold, excluding cap petitions for Chile and Singapore
  • “C/S Cap” — Chile and Singapore H-1B visa petitions
  • “US Masters” — petitions filed under the 20,000 threshold exemption for those employees with a master’s degree or higher post-graduate degree from a United States institution of higher education

Employers should be careful to only submit one Form I-129 for each individual employee. Submitting more than one may automatically deny employees of their petitions. If submitting petitions by mail for more than one employee at a time, employers must make sure to place each individual employee’s petition, along with any necessary supporting documentation, within its own envelope.

Mailing an H-1B Visa Petition

Employers may file petitions at one of two service centers depending upon whether the H-1B visa petition is cap exempt or non-cap exempt. These service centers are located in California and Vermont. The filing locations for either petition exemption status can be found by accessing the USCIS website.

Additional requirements may be necessary depending on the type of delivery service used. If petitions are mailed using U.S. Postal Service delivery, they must first be mailed to a P.O. Box. The USCIS office considers petitions to be officially filed once they reach the USCIS office. If petitions are to be delivered by other bonded courier services such as UPS, FedEx, DHL, etc., USCIS will accept these deliveries as well. USCIS will not accept petition deliveries from non-bonded couriers or hand deliveries from employers.

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H-1B Visa Filing Assistance

If you are ready to take the next steps towards being officially accepted for an H-1B visa and begin your employment, then right now is the best time to begin filing your H-1B visa petition. With years of experience guiding clients through the H-1B visa filing process, we are glad to provide any and all assistance needed for a petition. Contact us today at (703) 783-0082 or online to schedule a consultation.

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