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The time is now for employers who wish to hire foreign professionals to work for their companies in H-1B status to start the process.  For the past several years,  both the annual H-1B cap of 65,000 petitions and US Masters Cap of an additional 20,000 petitions were exhausted during the first week of filing.

Cap H-1B petitions may be filed with the USCIS beginning on 4/1/2016 for employment to begin on 10/1/2016.  During the first week of filing, if the USCIS receives more than the allotted number of petitions, the agency will conduct a random lottery to decide which petitions will be accepted for adjudication.  In the past few years, the number of petitions received by the USCIS far exceeded the cap limitations.

There are preliminary steps that need to be taken, strategies considered, and documents that must be collected in the weeks leading up to the H-1B filing.  It is therefore a good idea for employers to get the process rolling by mid-February.

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The US Department of State has issued a Revised Visa Bulletin for October 2015.  According to the DOS:  “This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and contained Dates for Filing Applications long used by the Department of State for internal processing purposes. Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections (sections 4.B. and 5.B.) which have been adjusted have been identified in Bold type.”

This was a sloppy move by the government since thousands of foreign nationals have relied on the original Visa Bulletin issued on September 9, 2015 and have started preparing their adjustment packages, hired lawyers, and had their medical examinations.  These people will all need to wait before they can file their applications to adjust status.

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When a petition or application in denied by the USCIS, the letter denying the case includes a Form I-290B that the petitioner or applicant can complete to file an appeal of the case to the AAO, a Motion to Reopen or a Motion to Reconsider.  The latter two motions are decided by the USCIS.  The appeal however, lets your case be reviewed by another set of eyes.  Although it depends on the type of case , the odds of having your case overturned on appeal are low.

For example, according to the AAO, in FY 2011 it dismissed 523 appeals, sustained 15 and remanded 12, in 2012 there were 904 dismissals, 17 cases sustained and 11 remands, in FY 2013 there were 751 dismissals, 10 sustained and 25 remanded and in FY 2014 there were 509 dismissed, 16 sustained and 12 remanded.  Feeling lucky?  Then try your hand at appealing an H-1B to the AAO.

When one reads AAO H-1B denial decisions, many of them seem to rubber-stamp the adjudicator’s denial and sometimes the AAO will even add additional reasons to deny the case that the adjudicator had not considered.  Appealing a denied petition to the AAO does not leave the appellant with the feeling that they are necessarily getting a fair shake.

However all is not lost.  If you receive a decision that is unreasonable, under the Administrative Procedures Act, which allows individuals to sue the government for unlawful agency action.  Lawyers with strong H-1B denials have had success escalating such cases to Federal Court.  If the USCIS has made an arbitrary and capricious decision on your case, a federal suit may be a course of action worth pursuing.  It is advisable to consult with an experienced immigration attorney since many factors must be considered prior to filing suit.

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