With a few days left before the April 2, 2012 deadline, we learned that poor filing decisions make risk your case delivery and as a result miss the H1B cap.
USCIS stated that cases are considered “accepted on the date that USCIS takes possession of a properly filed petition with the correct fee,” and that it does not rely on the date the petition is postmarked or the date the petition is delivered to a P.O. Box or USPS address.
Employers are advised that petitions that are sent to USCIS via U.S. Postal Service Express Mail, even those that are addressed to the physical address of the service center, are not actually delivered to the service center, but are instead delivered to a U.S. post office. When received at the U.S. post office, such petitions may even be “signed for” as received by a USCIS official.
However, USCIS does not deem such petitions “accepted” until the service center picks up and “takes possession” of the mail from the post office. Service centers may pick up the mail only once a day, so if mail is delivered to the post office mid-day, petitions may not be picked up and “accepted” by USCIS until the following day.
Employers are advised to keep this information in mind, and plan accordingly when filing H-1B petitions as we approach the 65,000 statutory cap.
AILA Member, Eleanor Pelta, wrote in her blog the following:
In a little-known practice that has been in place for a number of years, if an application is sent to any of the addresses for the Vermont Service Center by U.S. Postal Service, the postal service does not deliver it to the VSC, but rather, holds the application at a postal facility for the VSC to pick up. And the VSC only picks up the mail once a day. What’s more, the VSC tells us that they only treat the application as “received” when they get it, not when it is delivered to the address designated by USCIS on its website and forms instructions, even if there is a delivery acknowledgment and a Postal Service delivery confirmation. On the other hand, if you submit your application using FedEx, UPS, or one of the other services, it gets delivered to the VSC directly, the VSC opens the package, and “receives” it into the system.
Who gets hurt by this practice? Imagine a U.S. employer who has just entered into a contract for a project and needs the special skills of a particular foreign national. The employer has sent an H-1B petition via USPS to the VSC. It arrived at the VSC mailing address on November 22, but it was rejected because it was not picked up by VSC until November 23, after the H-1B cap had been hit. Notwithstanding that fact that most of us would consider that a timely filing, the employer is simply out of luck.
The struggling U.S. Postal Service is out of luck too, because USCIS and the VSC are essentially telling their customers: “Don’t use the post office if you want to be sure we get the application on time.”
Where USCIS designates a street address or a post office box address as the place to which to send an application, a petition, or any other document, customers should be able to rely on timely delivery to that address as sufficient. An arbitrary decision about when to pick up the mail should not have a “make or break” impact on a U.S. employer’s filing. This doesn’t make sense, it isn’t fair, it isn’t right, and it needs to be fixed.
When filing H1B’s we have enough to worry about with nasty RFE’s, let’s not add to our stress level problems like when the mail will be picked up!