As we all know, to file an H1B extension petition for the alien worker, the U.S. employer is required to submit the application to USCIS before the expiration date as listed on the current H1B approval notice (a.k.a. the I-797 Notice of Action). USCIS normally approves an H-1B extension/renewal application without any problem, however, as a result of the current economy downturn and the recent changes in the administrative procedures, the US employer can no longer get the H-1B extension approved easily. It will take a much longer time to both get it prepared and receive the decision. Therefore I am writing to bring this issue of pressing urgency to the attention of our institutional H-1B employers and their H-1B workers.

1. Do not wait until the last few days to prepare for the extension; file the extension application as early as possible. Why?

When filing any H1B application, obtaining a copy of an approved Labor Certification Application (LCA) from Department of Labor is the first priority. Up to now, the attorney or accredited representative could normally receive a copy online within 24 hours after putting through an electronic request on behalf of the employer. After June 30th 2009, a new system, called the iCERT System, will be formally introduced to replace the current one in use. After its implementation, the approved LCA won't be available in a day. In fact, the latest feedback from the tryout shows that it needs at least two weeks via iCERT System to obtain an approved LCA. Even worse, there are attorneys complaining that after three or four weeks, they have not received the copy yet. According to the words of a Department of Labor Officer who was addressing AILA members last week, their TARGETED time of granting approval via iCERT is within seven days. But he then corrected it to seven business days. Be it seven days or seven "business" days, it indicates that after June 30th there will be certain difficulty to get a copy of LCA in time. Given the indispensability of LCA to H1B applications, we shall allow enough time for the preparation unless USCIS would accept later-submitted LCA after receiving the filing of the corresponding H1B extension. As the earliest time for filing H1B extension application is six months before the expiration date, you may ask what is the latest? Well, it all depends. I would suggest starting the preparation at least one month in advance. However, since you never know what will happen next, the point is, the earlier, the better.

2. Getting approval for H1B extension application won't be as easy as before. Don't take it for granted that an extension would be obtained effortlessly, since nothing actually changes in the current H1B position. Why?

USCIS, California Service Center in particular, is getting stricter with H1B applications, including H1B extension applications. Small-sized companies, especially those in the line of IT consulting, have been seeing an increasing number of "Request for Evidence" (RFE) Notices with excessive or draconian requirements on documentation. If the response to RFE fails to meet the requirements, the case would simply be denied. A few attorneys have been complaining about similar cases. And such denials caused the U.S. employers to terminate their ongoing projects prematurely. No matter whether the intent of such practice is to constrain the employment of alien workers, or there just has been an update of processing guidelines, it is worthwhile to attach importance to the H1B extension application.

3. Requirements on document are not as simple as before. The paperwork which normally would not be necessary has to be submitted now. Why?

Judging from the recent RFE notices, it reveals that the USCIS is not only examining the qualifications of the alien employees for an H1B specialty occupation, but also the eligibility of the U.S. employers for filing H1B cases. Even for well-established companies operating at a certain scale, USCIS would require the company petitioners to clearly substantiate the information concerning annual income or to evidence their sources of income to guarantee payment to workers by providing Federal Income Taxes, Quarterly Wage Reports, payroll records, contractual agreements, statements of work, work orders, and service agreements etc. A direct consequence of it is that some employers are scared away by such RFEs and would rather withdraw the application. Actually, whether to extend the employment of certain alien workers or whether the company has the ability to pay them, is an internal matter that has nothing to do with governmental agencies. Whereas, by processing the H1B extension application, the government is probing into company affairs. Small or medium sized companies, as a result, shall consider proving their financial ability to pay the offered wage as well as to identify the succession of businesses involved in the assignment of the alien worker. Therefore in our practice, we might ask for the employers' assistance to provide relevant information or documents in the initial filing to avoid RFE or denial. We are also requesting our clients who would like to retain our services for H1B applications to contact us ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) as early as possible. Leaving us enough time for preparation will facilitate our work as well as ensure the benefits of U.S. employers as well as alien employees.

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