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10 Ways to Beat H-1B Quota to Start Work NOW!

This year the H-1B quota ran out on the very first day! In fact, there was such a deluge of H-1B applications that the USCIS was forced to run a lottery to decide who among the applicants would receive a coveted H-1B visa. As a result, many applicants who applied on the very first day were unable to get an H-1B visa. Therefore, if you want to have a chance of obtaining an H-1B visa, your best bet is to qualify under one of the quota exemptions listed below. Best of all, if you qualify for an H-1B exemption, you can proceed with your H-1B petition immediately, to start work now (either immediately upon approval of the H-1B petition or upon receipt of the petition if you qualify for portability), without having to wait for the next fiscal year!

DOL still accepts some Reduction in Recruitment (RIR) Conversions for traditional LABOR CERTIFICATION cases.

As of October 27, 2006, the Labor Department (DOL) is still accepting conversions of traditional Labor Certification cases (non-PERM) to Reduction in Recruitment (RIR), PROVIDED that the job order has NOT yet been placed for the traditional case. If an RIR conversion is received by DOL with a postmark or express courier shipping date that is prior the date DOL places the job order, DOL will accpet the RIR conversion and cancel the job order.

Of course, petitioners may wish to consider converting the case to PERM instead.

May I post a Notice of Filing for multiple positions of the same occupation and job classifications with a single posting?

I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?

According to the Labor Department:

Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor's regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).

NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.

Is it permissible to use the same prevailing wage determination for more than one application?

According to the Labor Department:

Yes, as long as provisions regarding the validity period are followed, the employer is permitted to use the same prevailing wage determination if the prevailing wage is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved.

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher...

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

According to the Labor Department:

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process.

Is there a date by which an employer's original application must have been filed in order to be eligible for conversion ...

Is there a date by which an employer's original application must have been filed in order to be eligible for conversion from TR to RIR?

According to the Labor Department:

Yes, applications must have been postmarked on or before March 28, 2005. This is an extension from the prior deadline and essentially includes all open TR cases in the backlog for which a job order has not been initiated.

For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring...

For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?

According to the Labor Department:

For purposes of determining whether the alien gained experience with the employer, an employer is "an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3."

What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing ...

What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing arts formerly processed under the special handling procedures in the former regulations?

According to the Labor Department:

Aliens of exceptional ability in the performing arts are now included in § 656.5, Schedule A, under Group II. Accordingly, such applications must be filed in duplicate with the appropriate office of the Department of Homeland Security. The documentation that must be filed in support of such applications is listed in § 656.15, Applications for labor certification for Schedule A occupations.

Using the posting sample of a Notice of Filing issued by the USCIS

The United States Citizenship and Immigration Services (USCIS) has posted, or will soon post, a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification?

According to the Labor Department:

Yes, an employer may use the posting sample of a Notice of Filing issued by the USCIS and such a posting will be honored by the Department of Labor (DOL) provided that the Notice of Filing complies with all Department of Labor regulatory requirements. DOL worked with USCIS to develop the sample posting as a customer service convenience. DOL will honor the use of the sample, but is not requiring use of the sample. Employers may use other forms as long as they comply with the regulations.

When must the advertisement for the job opportunity be placed in the national professional journal under the optional ...

When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

According to the Labor Department:

The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of alien.

Are applications for Schedule B occupations eligible for RIR conversion?

According to the Labor Department:

No, under existing regulations, Schedule B applications are not eligible for the RIR process.

What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on ETA Form 9089?

What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?

According to the Labor Department:

The expiration date is the end date of the prevailing wage validity period as provided by the State Workforce Agency, which will range from no less than 90 days to no more than one year from the determination date.

Is the employer permitted to accept alternative job experience/qualifications?

According to the Labor Department:

Yes, an employer may specify alternative experience or qualification requirements, provided the alternative requirements and primary requirements are substantially equivalent to each other with respect to whether the applicant can perform the proposed job duties in a reasonable manner. As discussed in the preamble to the final regulation, this is the standard developed by the Board of Alien Labor Certification Appeals in Matter of Francis Kellogg.

NOTE: Even when the employer's alternative requirements are substantially equivalent, but the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, the alternative requirements will be considered unlawfully tailored to the alien's qualifications unless the employer has indicated on the application that applicants with any suitable combination of education, training or experience are acceptable.

In the event of an audit, can an application be withdrawn?

According to the Labor Department:

An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.

The message on my Corrections List states, "The Employer's name/address is not the same on Form ETA 750 Part A and Part B." ...

The message on my Corrections List states, "The Employer's name/address is not the same on Form ETA 750 Part A and Part B." What do I need to do?

According to the Labor Department:

Please refer to item 6 on Form ETA 750 Part A and item 8 on Form ETA 750 Part B. These items must match exactly on your application. Initial and date any corrections you make on your application and return it to the appropriate Backlog Processing Center.

How can an employer withdraw a PERM application if the employer has difficulty withdrawing electronically?

According to the Labor Department:

As explained in an earlier FAQ on this subject, if the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing following the procedure below, must be sent to the National Processing Center to which the application was originally submitted.

In the event employers are unable to withdraw electronically as stated above, employers should send a withdrawal request by e-mail to the appropriate National Processing Center at: PLC.Chicago@dol.gov (for Chicago) or PLC.Atlanta@dol.gov (for Atlanta). To ensure your request is processed expeditiously, please include the following information in the e-mail request:

  • Show the words "Withdrawal Request" and the employer’s name in the subject line of the e-mail
  • In the body of the e-mail, include the following information:
    • Case Number
    • Employer's Name
    • Employer's EIN
    • The reason for withdrawal
    • Name and title of individual requesting withdrawal

Is the employer permitted to use an electronic national professional journal?

According to the Labor Department:

No, the employer can not use an electronic national professional journal. The employer must use a print journal whether to satisfy the provision permitting the use of a journal as an alternative to one of the Sunday advertisements or to satisfy the provision requiring an advertisement in a journal under optional special recruitment procedures for college and university teachers.

Is the employer permitted to use a wage range as opposed to a single wage rate in advertisements for the job offer?

According to the Labor Department:

Yes, the employer may advertise with a wage range as long as the bottom of the range is no less than the prevailing wage rate.

Is an application for a labor certification for Schedule A occupations filed with a Department of Labor National Processing ...

Is an application for a labor certification for Schedule A occupations filed with a Department of Labor National Processing Center?

According to the Labor Department:

No, an application for a labor certification for Schedule A occupations is filed, in duplicate, with the appropriate Department of Homeland Security (DHS) office.

In order to establish a "pattern of recruitment," which date is used as the reference point -- the date the original ...

In order to establish a "pattern of recruitment," which date is used as the reference point – the date the original application was received or the date the RIR conversion request is received?

According to the Labor Department:

The point of reference for the pattern of recruitment is based upon the date the RIR conversion request was received. In other words, the earliest acceptable published advertisement or other recruitment activity must have occurred within six months prior to the date the RIR conversion request was received by the BEC. Earlier advertisements or other recruiting activities will not be considered by the BEC in determining whether a pattern of recruitment has been established.

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Search for H1B Visa Employers

You can search for "H1B Visa Employers" using this database, which was compiled by Antao & Chuang, Attorneys at Law from government sources. This database identifies those U.S. employers who have filed for H-1B visas in the past, or who have at least started the process by filing for the LCA. If you find an employer you are interested in, you can then contact them to inquire as to whether they have any current job openings in your field. Please tell your friends about this valuable resource.

Use this form to search for H1B Visa employers.

"FMG Friendly" Employers

Foreign Medical Graduates ("FMGs") should be aware that there are "FMG Friendly" employers, and "FMG Unfriendly" employers. This database (compiled by Antao & Chuang, Attorneys at Law from government sources) identifies those U.S. employers who have filed for H-1B visas for foreign medical graduates in the past (or at least started the process by filing for the LCA), and who can therefore be deemed "FMG Friendly". Please tell your colleagues about this valuable resource.

Use this form to search for "FMG Friendly" employers in a given state.

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