H1B Extensions : Advance Planning Required
Posted Sep 11, 2009
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Many H1Bs have the expiration date of September 30th. This commonality of I-94 expiration is due to the October 1st start date held by so many, since this is when the new H1B fiscal quota begins, as well as the new U.S. Citizenship and Immigration Services (USCIS) fiscal year. As this date is fast approaching, we remind MurthyDotCom and MurthyBulletin readers, whose H1Bs are expiring this year, that the H1B filing process can no longer be completed at the last minute. Advance planning and preparation is needed, as there have been changes in the Department of Labor's (DOL's) system for certifying labor condition applications (LCAs).
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iCert Means Slower LCAs
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The DOL's new system for processing LCAs is much slower. Prior to iCert, a decision on the LCA was provided virtually instantaneously. The iCert system takes seven days to obtain a decision on the LCA if there is not a problem; longer with a problem. These matters were covered in our August 14, 2009 NewsBrief, iCert Glitch Causes LCA and H1B Delays.
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Timely Filing Required for Maintaining Status
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In order to maintain H1B status in the United States, the requested extension of that status has to be made before the expiration of one's I-94. Delays in obtaining the LCA approval, therefore, may delay the H1B petition filing. This, in turn, can create status problems. The way to avoid this is to plan ahead and not expect to successfully manage a last minute filing. This warning applies to everyone, not only those with I-94s expiring on September 30, 2009.
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Option if Current H1B Expires before New Filing
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If the H1B filing has waited until the last minute, or there is a delay in the iCert or for any other reason, it may still be possible to file the H1B extension. If the H1B petition cannot be properly filed before the expiration of the current status, then it may be necessary to process from outside of the United States; a process referred to as consular notification of the H1B petition. This is the result of not being able to file an extension-of-status request timely.
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It is difficult to know how long an LCA will take in any given case. Thus, while we strongly urge planning in advance, we acknowledge that, in reality, there are many reasons that last minute situations arise. If this happens, there likely are still options available to attempt resuming H1B status. These options, however, usually involve more risk, more time, and additional expense.
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Conclusion
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New systems often create new challenges. Until the glitches in the iCert system are properly addressed, employers are going to have to adjust to the slower H1B timeframe and its impact on their business needs. The Murthy Law Firm reports information to our readers to inform and guide them through H1B systems and procedures, such as the LCA and iCert, as well as other matters.