Greater ‘Lead Time’ Needed to File H-1B Petitions With USCIS

Allen and Pinnix is advising our business clients that they need to allow for greater ‘lead time’ to file H-1B petitions.

The statutory limitation was reached for H-1B filings subject to the "cap", at the beginning of the filing period in both 2007 and 2008. In 2009, because of the recession, the 65,000 cap was not reached until late December; as early as April 17, 2009 the USCIS reported that 20,000 applications had been filed for the U.S. advanced degree holder cap. However, observers note that during the last quarter of the year there was a substantial increase in filing, which likely reflects a degree of economic recovery.

As the economy continues to recover, employers who need H-1B workers should assume that the quota will be reached much earlier than last year.

2009 saw U.S. Department of Labor (DOL) delays and intractable glitches in issuing Labor Condition Attestations (LCAs), a prerequisite to filing H-1B petitions. And, there are now new e-filing requirements for obtaining a prevailing wage determination that must be considered in calculating H-1B preparation time. Formerly, the prevailing wage was obtained through the State Workforce Agency (SWA), by mail or fax, and was generally received within 7 to 14 days.

Now, the prevailing wage determination must be obtained electronically from the U.S. Department of Labor. Because of this new requirement, it is anticipated that obtaining a prevailing wage determination could take a minimum of 30 days. Once the prevailing wage determination is received, a petitioning employer should allow an additional 7 days, assuming no errors at the Department of Labor , for processing the LCA.

This means that the prevailing wage request must be submitted electronically to DOL at least 45 days in advance of filing the H-1B petition with the U.S. Citizenship and Immigration Services.

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