Long-Pending H1Bs Should Consider Other Options
Posted Feb 20, 2009
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Most individuals who were beneficiaries of H1B cases filed for the April 2008 cap season, have received decisions on their cases. At the Murthy Law Firm, however, we continue to receive inquiries from individuals who have H1B cases pending from April 2008 and, occasionally, even from April 2007. Discussed here are the possible reasons for these delays and the importance of not assuming that these cases will be approved, as well as not missing the opportunity to meet this year's H1B cap deadline. This situation raises status concerns, as well as issues of potential options that should be discussed with a qualified immigration attorney. MurthyDotCom and MurthyBulletin readers who are among this group of potential H1B employees should consider other options and, if appropriate, file new H1B cases for the upcoming FY2010 cap season.
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Cause of Delay : Investigations and Other Suspicions
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The U.S. Citizenship and Immigration Services (USCIS) generally takes three to six months to make a decision on most H1B cases. This timeframe does increase from time to time, depending upon workloads and other matters. The need to conduct a lottery in the days following the cap's having been reached also adds a bit to the processing times. However, if a case was filed in April 2008, and is still unadjudicated in early 2009, this usually indicates a problem.
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In all likelihood, that problem rests with the employer or company. The USCIS and the U.S. Department of Labor (DOL) have stepped up investigations into fraud and general issues of noncompliance with H1B requirements. IT consulting companies are particular targets in many of these enforcement efforts. Cases often are delayed considerably and, essentially, put on hold because the company is flagged for review. While this is not always the case, one strong indicator is if the company is not selective in its process of offering employment. Other signs include requests for improper payments, a history of not paying H1B employees during bench periods, placing employees in locations not mentioned in the Labor Condition Application (LCA), and questionable employment agreements.
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Alternate Options Should Be Considered
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Those who are waiting for decisions in long-delayed H1B cases should look for other options. If there is a more preferable employment offer, through an employer less likely to encounter such suspicions, then it is better to request the filing of another H1B petition for the upcoming cap season. This is possible, even though there is an earlier case filed. It would be a mistake to rely upon a long-delayed, troubled case, possibly missing the opportunity to file a new H1B petition for this coming fiscal year.
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Conclusion
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Foreign nationals with long-delayed H1B cases, who are often recent college graduates, need to consider the status implications and other options. Some have Optional Practical Training (OPT) and STEM extensions that may extend status. With such a limited period within which to file H1Bs, it is extremely unwise to allow the opportunity to pass while relying on a case that has problems.