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With this year’s H-1B CAP season fast approaching following last year’s CAP that was reached within five days of April 1st, it is understandable that there are many questions being passed around regarding this year’s CAP season. How can I make sure that my H-1B CAP petition is filed as soon as the CAP opens? What steps should I be aware of that may cause the most delay for the filing of my H-1B CAP petition?

Often the subject of great confusion, the Labor Condition Application (“LCA”) is a required element of H-1B petition filings generally, but especially during the CAP season, timing and planning are of the essence to ensure that a Certified LCA is ready for the H-1B CAP petition to be received by USCIS on April 1st.

As it is probably familiar to many, when an H-1B CAP petition is approved, the H-1B status of the foreign national does not come into effect until October 1st of that same year. H-1B status can be requested initially for a maximum of 3 years, and one would assume that this would mean that the petition should simply request for October 1st of that year to October 1st of three years later.

Unfortunately, it’s not that simple.

This is due to the fact that the maximum requested time for initial H-1B status is limited to the maximum requested end date of the Certified LCA.

But can’t you just request the LCA to be certified from October 1st of that year to October 1st of three years later?

Unfortunately, the LCA start date is limited to within 180 calendar days upon the date that it is initially submitted with the Department of Labor (DOL) for certification. To compound the complexity of the issue, certification of the LCA takes roughly 7 calendar days (with an extra couple of days because of the heavy backlog during the H-1B CAP season).

Here are examples that may help illustrate the complexities of the situation:

Let’s say John Smith, a foreign national, is being sponsored by Company X for the H-1B CAP for this upcoming fiscal year. In order to ensure that his petition will be received by USCIS on April 1st, Company X files his petition with next day mail service on Monday, March 31. Unfortunately, because of certain delays, they were unable to submit his LCA for certification any earlier than 7 days prior to the H-1B filing on March 24. Given this timeline, at the point of submitting the LCA for certification, they could only request a start date at the maximum of 180 days, which would place the start and end dates of the LCA at September 20, 2014 to September 20, 2017. Therefore, the petition would only be able to request H-1B status from October 1, 2014 to September 20, 2017.

But now let’s say that Jane Smith, a foreign national, is being sponsored by Company Y for the H-1B CAP as well. However, unlike Company X, Company Y was able to get an LCA submitted for certification with the DOL much earlier in order to avoid any last minute filing issues. They submitted the LCA on Monday, February 3, which means that they received their Certified LCA roughly on Monday, February 10. This sounds like an ideal situation because then there are no last minute filing issues and they can simply file the petition on March 31st to ensure it is received at USCIS on April 1st.

However, we have to be aware of the fact that the LCA can only request a start date within 180 days that it is submitted for certification. Therefore, since the LCA was submitted on February 3, 180 days following that date is August 2, 2014. This means that the LCA’s end date is limited to August 2, 2014, and, because requested H-1B status is limited to the end date of the LCA, if Jane’s H-1B is approved and comes into effect on October 1, 2014, the end date will be August 2, 2014, a whole 49 days earlier than John’s H-1B end date!

Therefore, in terms of LCAs for the H-1B CAP, one may feel that they’re stuck between a rock and a hard place: Should I submit an LCA earlier to avoid last minute filing issues but receive a shortened end date for H-1B status, or should I submit an LCA later to get a longer end date for H-1B status but risk running into last minute filing issues?

To a certain degree, our job is to help find the “sweet spot” that enables the longest amount of time for requesting H-1B status but also avoids any last minute filing issues. As a law office, we often request our clients to send us information regarding the H-1B position starting as early as January, and we begin to submit LCAs for certification near the end of February and beginning of March. We feel that this timeline hits that “sweet spot” that grants foreign nationals the most time with the least potential risk.

So, what can you do to make sure that you hit the “sweet spot” for the LCA this H-1B CAP season?

Submit information about the H-1B position as early as possible. We understand that there are many issues that may prevent a sponsoring employer from submitting the information sooner rather than later (hiring schedules, deciding salaries, communication with managers, etc.), but we encourage our clients to submit information regarding the H-1B position as early as possible.

Prioritize information for the LCA. Especially for companies who have not filed an LCA before, though you will need to file extra documentation and information for the H-1B CAP petition, we highly recommend that you prioritize sending us information about the H-1B position as soon as possible. Other necessary documentation and information about the company can be provided in a day or two, but the LCA will always take at minimum 7 calendar days to get certified, so it is important to prioritize information for the LCA.

Keep constant correspondence especially prior to the LCA submission for certification. Oftentimes, there will be situations where the information clients provide for the H-1B position will not work for the LCA (e.g. prevailing wage issues), and we will need to reach out to our clients for clarification or alterations to be made the information they provided. We highly recommend that our clients be vigilant about any emails they receive from us regarding the H-1B position information for the LCA so that if there are any adjustments or clarifications that need to be made, they can be done quickly rather than causing a delay in a very time-sensitive period.

Lastly, Don’t panic. We understand that certain situations and issues arise during the CAP season and you may be unable to provide us information during the “sweet spot” period of the LCA. If this is the case, contact us immediately and we will first assess if there is enough time to be able to file the H-1B CAP petition on time, and if so, we will do our best to make sure that the H-1B CAP is filed accordingly.

Written by Timothy Isaiah Cho
SW Law Group, P.C.

January 2013