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It can be a very disappointing experience for everyone involved, to receive a notice from USCIS that the H-1B visa quota has been met for the year and you have not been selected to receive an H-1B visa in the lottery process. The attorneys at The Law Firm of Shihab and Associates, LPA have over 50 years of combined experience in a variety of complex legal matters, and we can help you to find an immigration strategy to best meet your particular needs. Please contact us today.

What Other Options are Available?

One option that may be available to you is if you are the holder of a Master’s degree or higher from a U.S. institution. This will qualify you for one of the 20,000 visas reserved each year for advanced degree holders. These tend to run out much more slowly, and if you do not receive one in the lottery, you still get a “second chance” for one of regular 65,000 visas for Bachelor’s degree holders. You can even petition under this category, if you anticipate receiving your U.S. advanced degree in between the time you apply for your petition and the beginning date of your H-1B employment.

Another great option, is if you are an F-1 student visa holder, and you qualify for the Optional Practical Training (OPT) visa program. This is a great program that will allow you to work in the U.S. in a job that is directly related to your field of study. This lasts for a period of 12 months. In addition, if your field of study is in a STEM field (science, technology, engineering, or mathematics,) you can participate in the STEM OPT extension which lasts 17 months. You must work for an employer that participates in the e-Verify program, which is a free online system for businesses to determine eligibility of employees for work in the U.S., and you must have received practical training and employment authorization related to your STEM degree. The OPT and STEM OPT programs can allow you to bridge the gap until the next year’s H-1B season.

You may also be able to avoid the H-1B visa cap, if your employer/petitioner is a “cap exempt” institution. These are qualifying institutions of higher education, (i.e. colleges and universities,) affiliated or related nonprofit entities, or governmental or nonprofit research organizations. To qualify, you must work at a qualifying institution at least 51% of your work time. A “related or affiliated” nonprofit entity can be any entity that has a formal, written affiliation agreement with a qualifying institution.

If you are a foreign national from certain specific countries, you may be able to bypass the H-1B visa altogether. There are some excellent H-1B alternatives that are less expensive, easier to obtain, with longer durational periods for nationals from specific countries. For example, the TN visa is a great option for professionals from the NAFTA countries of Mexico or Canada. This is an excellent option if you have been offered a position in the U.S. as an accountant, architect, computer systems analyst, engineer, lawyer, medical professional, scientist, teacher or several other professional occupations. The professions do not need to be a “specialty occupation,” and there is a wider range of professions that apply. While a temporary visa, there is no limit on the length of your stay within the U.S., and no yearly visa cap. Mexican nationals must apply for this type of visa at a U.S. consulate before entry into the U.S. Beyond the TN visa, if you are a national of Chile or Singapore, you may apply for the H-1B1 visa, and Australian nationals may apply for the E-3 visa. These visa types have their own separate caps and are much easier to obtain than an H-1B visa, and are a great option for nationals from these countries.

Finally, another potential option for you may be to obtain permanent residency without applying for an H-1B visa. Green card applications are not dependent on your H-1B status. Certain kinds do not even require the sponsorship of an employer. You may be able to get an EAD directly after your F-1 OPT visa after filing your permanent resident petition.

Contact Us

There are potentially many additional kinds of visa options that are available to you, when you are unable to obtain a visa through the H-1B lottery process. At Shihab and Associates, we have decades of experience in such matters. To learn more about your visa options, or for any other immigration matter, contact us today to consult with one of our experienced immigration attorneys.

 

 

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As the H-1B cap season for FY 2017 approaches, employers and potential employees alike must be prepared. For the uninitiated, the H-1B cap refers to the statutory limit placed on visa’s available for temporary workers in specialty occupations. Currently, this limit is set at 65,000, with an additional 20,000 reserved for those with advanced U.S. degrees (also known as the Master’s cap). As more and more employers seek to benefit from highly skilled workers available internationally, particularly in the IT industry, the H-1B visa becomes more highly sought after. Additionally, the ability to extend the H-1B status past the standard six years with the approval of an employment based immigrant petition adds exceptional benefit to both petitioner and beneficiary.

USCIS begins accepting cap-subject H-1B petitions on April 1. In the past three years, the Service has received enough petitions to fill the numerical cap within 5 days. Thankfully, due to this massive influx of potential visa beneficiaries, a lottery system has been implemented. So long as USCIS receives the cap-subject petition within the allotted filing period, it will be placed in a random lottery for selection. Those petitions eligible for adjudication under the 20,000 Master’s cap will be selected first. Those that qualify for the Master’s cap but were not selected are then placed with all other petitions for possible selection in the 65,000 general cap. With over 233,000 petitions received by USCIS for the H-1B cap last year, there is only about a 1 in 4 chance of any petition being accepted for filing. All petitions that are not selected in this process are rejected and all documents and filing fees returned. While those not selected may have alternative visas available to them, many will have to wait and resubmit a new petition the following year in the hopes of being selected in the lottery.

Why has there been such a push for these visas? In addition to the need to fill positions in areas which there are not enough qualified U.S. workers, the recent scrutiny and subsequent denial rates in the L-1 visa have forced many employers to take the H-1B route. Additionally, with the ability to extend nonimmigrant status continuously while an immigrant visa is unavailable, many employees that seek to begin the permanent residence process (also known as a Green Card) will attempt to switch to H-1B status. With the recent change to allow H-4 visa holders (dependents of H-1B’s) to gain work authorization, the number of H-1B cap petitions for those already in an employment based status may cause an additional increase in petitions this cap season.

Will this year be the same?  While filings are clearly trending upward, there is potential this year for a minor drop-off.  Is the need for H-1B visa holders going down? No, but the cost has gone up dramatically for medium to large businesses to file an H-1B visa this year.  Previously, Public Law 111-230 required an additional $2,000 in filing fees for companies that employed 50 or more employees, with over 50% in an H or L nonimmigrant status (known as a “50/50” company).  This additional fee applied only to “New” employment.  This year, the provision sunset (expired), and the hope was that this hurdle to business would remain off the books.  However, the Omnibus appropriations bill that kept the Government from shutting down included a revised version of this fee.  The new fee has been doubled to $4,000 for 50/50 companies.  Further, while USCIS has provided guidance that the fee only applies in cases of new employment or change of employer (akin to PL 111-230), the language of the law seems to provide a basis for requiring these fees for extensions with the same employer.

There are many reasons for companies to seek international talent through the H-1B visa. First, the types of positions these employees hold are often difficult to fill with qualified U.S. workers. This is one of the reasons recent administrations have pushed to increase U.S. education in Science, Technology, Engineering and Mathematics (known as “STEM”). While the United States workforce is getting up to speed in these areas, U.S. based companies still require professional services in order to thrive. Hence the use of the H-1B visa in these instances. Next, these international employees often provide their organization with a different world-view and way of thinking, driving innovation. Alternative approaches to common problems expose all employees to new ideas, creating a better business environment.  Finally, as we are barraged with soundbites from Presidential candidates this election cycle, remember that America was founded by immigrants, and should maintain the same welcoming spirit, particularly in light of the educated professionals the H-1B visa program brings to the U.S.

Though still a few months away, employers should prepare themselves (and potential employee/candidates) for the requirements associated with the H-1B visa petition, in order to provide legal counsel with all necessary information in a timely manner. Our firm has assisted in preparing thousands of these petitions, and would be happy to lend our expertise to your business, whether seeking one or one hundred specialty occupation workers.

If you have questions about immigration and/or you need help in an immigration process, please contact The Law Firm of Shihab & Associates, Co., LPA for a consultation. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, asylum cases, immigrant visas, non-immigrant visas, employment visas and H-1B visas, investors-visa, PERM applications and many more.

 

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On December 31, 2015, the Department of Homeland Security (DHS) issued a notice of proposed rule making that will affect highly-skilled workers, and other types of non-immigrants.  Most of these changes, as described by the American Immigration Lawyers Association (AILA), are “helpful, but timid.”  Others changes, however, give reason for concern.  This blog entry will give a brief rundown of the new proposed rule changes.

Many of the new “changes” are actually just a regulatory codification of existing agency policy and guidance that has developed in the past 15 years—since the enactment of the American Competitiveness in the 21st Century Act, and the American Competitiveness and Workforce Improvement Act.  These changes include:  allowing H-1B visa extensions beyond the general 6-year limitation, allowing permanent visa portability to a job in a same or similar occupation, H-1B portability, and H-1B cap exemption rules.

For H-1B cap exemption rules, the new regulation would expand upon the definition of “related or affiliated nonprofit entities” for the purpose of the H-1B cap exemption.  This would allow the inclusion of entities that have a formal, written affiliation with a qualifying cap exempt institution to also take advantage of the H-1B cap exemption.  This is a welcome addition, but see our earlier blog article below for why these proposed changes could also be problematic for employees who are “employed at” qualifying institutions, but do not spend all of their time working there.

The new rule seeks to provide limited relief and protections for those stuck in long visa backlogs.  This includes new protections for those seeking to retain their priority dates and the validity of their immigrant petitions, when they have been withdrawn by an employer for reasons outside of their control, so long as there is no fraud, misrepresentation, or “error” in originally granting the petition.  (This could be worrisome, however, that a later adjudicator could revoke a prior petition on grounds of an ill-defined “error.” )  The new rule also codifies the sixty-day grace period in which a nonimmigrant’s visa remains valid once their employment ends.  These changes are generally a welcome step forward in protecting immigrants who have been working hard and waiting a long time to receive their green cards, but who may want to change employers without it hurting their immigration status or priority date.

The new proposed rule also seeks to create a new, temporary one-year work authorization for certain types of employer-based non-immigrants who are waiting to receive a green card.  This new work authorization type is available, when a non-immigrant has filed an immigration petition, and their priority date is within one year of becoming current.  It will only be available, however, if the person can show that “compelling circumstances” exist that are outside the person’s control that merit the issuance of a work authorization.  “Compelling circumstances” have yet to be defined, but they might include the need to relocate because of disability or illness, employer retaliation against a whistleblowing employee, or a compelling need of the employer.  Hardworking, talented highly-skilled workers are likely to be disappointed that this new provision has not gone far enough.  Many highly-skilled workers have waited many years in long visa backlogs for their immigrant petition to become approved, and face difficulty maintaining their work authorization during that time.  Another problem with this new type of work authorization, is that once approved, the foreign national’s non-immigrant status is relinquished, which can be problematic if they want to make any other change or adjustments to their status in the meantime.

Finally, the new proposed rule will grant an automatic work authorization renewal for up to 180 days, when a nonimmigrant seeks to renew their work authorization, or until their renewal application has been adjudicated.  However, this new automatic 180 day extension will not be available to DACA renewals or H-4 renewals.

While we commend DHS’s attempts to improve and clarify the rules for highly-skilled non-immigrant workers and employers, we feel there are areas of concern that have been raised, and that they missed an opportunity here to take bolder action.  DHS and Congress must enact meaningful immigration reform that provides greater flexibility and opportunities for H-1B and other highly-skilled non-immigrants to overcome unconscionably long visa backlogs, for these talented persons to more fully and freely participate in the American economy and in the American Dream.

If you have questions about immigration and/or you need help in an immigration process, please contact The Law Firm of Shihab & Associates, Co., LPA for a consultation. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, asylum cases, immigrant visas, non-immigrant visas, employment visas and H-1B visas, investors-visa, PERM applications and many more.

 

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There is good news this week if you are seeking or are already in H-1B1, E-3, CW-1, or EB-1 visa status. The Department of Homeland Security (DHS) has issued a final rule that amends its programs for these types of visas in an attempt to remove barriers and obstacles that have placed these types of workers at a disadvantage to similar workers in other visa categories.

This rule will become effective February 16, 2016, and will make the following welcome changes :

  • H-1B1 and E-3 visa holders will now be authorized for employment with a specific employer incident to their status. This means that you can work for your sponsoring employer without needing a separate employment authorization.
  • H-1B1 and E-3 workers will also have their employment authorized with the same employer for up to 240 days after their visa status has expired, if the employer has filed a timely and pending request for an extension of stay.
  • CW-1 workers will also enjoy this same continued work authorization for 240 days after their status has expired, if their employer has filed a timely and pending extension of stay.
  • For EB-1 Outstanding Professors and Researchers, employers may now submit initial evidence that is “comparable” to already accepted forms of evidence listed in the regulations. “Comparable” means that it does not have to be the exact kind of evidence required by the regulations. This will allow more and diverse kinds of evidence to be submitted to show that you are truly an “outstanding” professor or researcher.

Thankfully, there are no new additional costs imposed by these new regulations. This is an improvement, because H-1B1 and E-3 employment authorization is now more consistent with other kinds of visa holders. This rule seeks to minimize the potential for disruptions of employment, and will likely help tremendously in this endeavor by allowing visa holders to continue working while extension applications are pending, and by not requiring separate work authorization applications for the same employer.

DHS also hopes that this rule change will enable U.S. employers to recruit more EB-1 professionals, by expanding the types of evidence it will accept to show their outstanding qualities and background. While this is a mere procedural step, it should have a pronounced effect by making it more likely that employers can show that their EB-1 beneficiary is truly “outstanding.”

If you have questions about immigration and/or you need help in an immigration process, please contact The Law Firm of Shihab & Associates, Co., LPA for a consultation. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, asylum cases, immigrant visas, non-immigrant visas, employment visas and H-1B visas, investor-visas, PERM applications and many more.

Additional Resources:

http://www.uscis.gov/news/dhs-enhances-opportunities-h-1b1-e-3-cw-1-nonimmigrants-and-certain-eb-1-immigrants-final-rule-posted

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Beginning April 1, 2016, employers will be able to submit petitions with the U.S. Citizenship and Immigration Services (USCIS) for H-1B visas on behalf of highly-skilled foreign workers in specialty occupations. These cap-subject visas will become available later in the year on October 1.

This year it will be very important for you to prepare your petitions as early as possible, because it is anticipated that there will be very strong demand for H-1B visas in2016. In the past three years, the H-1B visa cap was reached immediately within five business days of the initial April 1 start date. When this occurs, a visa lottery takes place. There is expected to be continued strong demand, as well as pent up demand from petitioners who could not obtain an H-1B visa last year.

What is the H-1B Visa Cap?

Current U.S. immigration law limits the number of H-1B nonimmigrant work visas that are available each year to 65,000. There are an additional 20,000 visas available if you are a holder of a master’s degree or higher from a U.S. university. These limits have unfortunately not been increased from their original 1991 levels. In recent years, demand has far outpaced supply, as the H-1B visa is the most popular visa category for employers seeking to obtain work authorization for foreign nationals in a wide range of occupations. These include the areas of: information technology (IT), healthcare, the sciences, teaching, engineering, and many other kinds of professions.

A foreign national must have at least a bachelor’s degree, its equivalent, or higher in the specific specialty occupation of the job offered to qualify for an H-1B visa.

Not all H-1B employers are subject to the visa cap. If the employer is an institution of higher education, a related or affiliated nonprofit entity, or a government research organization, the visa cap may not apply. Other cap exemptions include H-1B extensions and petitions to change employers for existing H-1B beneficiaries.

What is the H-1B Visa Lottery?

During the H-1B process last year, the H-1B visa cap was met on April 7, 2015. During this time period, over 233,000 petitions were accepted by USCIS. This means that the entire amount of 65,000 + 20,000 visas were petitioned for within a few short days, and that a visa lottery needed to take place to determine which of the over 233,000 petitioners would receive one of the 85,000 visas.

USCIS conducted a randomized, computer-selected process on April 13, 2015. First, a random lottery was conducted for the 20,000 visas available to master’s degree holders. Those not selected in this lottery got a second chance in the main lottery for the 65,000 visas available to bachelor’s degree holders. If an H-1B visa was not selected under either lottery, then the petition was denied and the filing fees returned. If the H-1B visa petition was one of the lucky ones selected in the lottery, then USCIS sent out a notice by U.S. post mail several weeks after the lottery; or, if the visa was filed with premium processing, USCIS notified successful petitioners by email.

Should I Begin Preparing My H-1B Petition Now in Advance of April 1?

Yes, start now. Businesses who wish to hire H-1B workers must be ready for the H-1B filing start date. While USCIS will accept all H-1B petitions filed properly within the first five business days before conducting the random lottery, it is important to gather information and prepare all the necessary documentation now so that no unanticipated delays occur.

It is essential that you obtain the approval and certification of your Labor Condition Application (LCA) before the April 1 filing date. You can begin now to work on all of the necessary paperwork required for the LCA by the Department of Labor (DOL). The processing time at DOL for LCAs is around seven business days. April 7 is the last day that USCIS will accept your H-1B petition, but you can start preparing early by: finalizing lists of H-1B candidates, preparing and submitting LCAs to the DOL, gathering supporting documentation, finalizing H-1B petition forms, and filing your H-1B petition on March 31 by overnight mail.

With strong demand for H-1B visas expected to lead to a randomized lottery this year, it is important to be ready for H-1B season and to file your petition as soon as possible, while still preparing a strong petition that USCIS is likely to accept without any requests for additional information.

If you have questions about immigration and/or you need help in an immigration process, please contact The Law Firm of Shihab & Associates, Co., LPA for a consultation. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, asylum cases, immigrant visas, non-immigrant visas, employment visas and H-1B visas, investor-visas, PERM applications and many more.

 

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Once again, on December 31, 2015, the Department of Homeland Security (DHS) has issued a notice of proposed rulemaking that seeks to read into the INA statute words and phrases that are not included in it, and that Congress never intended.  These changes would make it more difficult for H-1B visa holders to seek exemptions from the H-1B visa cap by working at an institution of higher education, a related or affiliated nonprofit entity, or at a nonprofit or government research organization.  Exemptions have long been available for H-1B employees who are “employed at” these kinds of institutions, but the new proposed rule will seek to more narrowly define who will be considered “employed at” these institutions.

There are two main changes that are proposed in the new regulations with regard to H-1B cap exemptions.  The first major change is a “clarification” of the agency’s interpretation of the meaning of a worker being “employed at” a qualifying cap exempt institution.  (See 80 FR 81900, 12/31/15.)  This change now requires that a worker must perform a majority, (more than half,) of his or her job duties at the cap exempt institution, and that these job duties must predominantly further the institution’s essential mission and purpose.  The second major change is a more welcome addition.  This change adds to the definition of an “affiliated or related nonprofit entity,” recognizing a new type of cap exempt relationship—one based on a formal, written affiliation agreement between a nonprofit entity and an institution of higher education.  Let’s discuss these changes in more detail, comparing the new rule changes to the current rule for H-1B cap exempt organizations.

The Meaning of “Employed At” a Qualifying Institution

The first area addressed by the new rule for the H-1B cap exemption is the meaning of being “employed at” a qualifying institution.  Under both new and old rules, there are two types of situations where an H-1B worker would be exempt from the numerical cap.

The first situation is where the H-1B worker is employed directly by a qualifying employer, (or has received an offer of employment.)  A “qualifying employer” is an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization.  There is not much change in the new rule under this scenario, except for a codification of the definition of “institution of higher education” based on the one found in the Higher Education Act of 1965, which does not include for-profit educational institutions.  Also, see below for more on the expansion of the definition of the term “related or affiliated nonprofit entity.”

The second type of situation, and the more controversial, occurs when the H-1B employee works “at” a qualifying institution not as a direct employee, but as an employee of a third-party petitioner, (often a consulting or staffing firm who has a contract with the qualifying organization.)  This arrangement was allowed under the old rules, so long as the worker was “employed at” the qualifying institution.  According to the 2006 guidance memo,  an H-1B worker was required to perform all or a portion of their duties at the qualifying institution, and that their job duties must “predominantly” further the essential purposes of the qualifying institution.  This definition can be confusing as to the exact requirements and meaning of “predominantly,” and the amount of time that the worker must spend at the qualifying organization.  Under the old rules, the requirement that the worker spend “a majority” of their time at the qualifying employer was mentioned only in an example near the back of the 2006 Interoffice Memorandum and in the revisions to the Adjudicator’s Field Manual.

Under the new proposed rule, the agency “clarifies” this confusion, by reading a new word into the statute and adopting a stricter standard for being “employed at.”  The agency has now interpreted, that an H-1B employee will qualify for the exemption from the numerical cap, only if they spend the “majority” of their work time performing job duties at a qualifying institution, (at least 51% of their time.)  The job duties must directly and predominantly further the essential purpose, mission, objectives, or function of the qualifying institution.  The burden is on the H-1B petitioner to establish a logical nexus between their duties and the essential purpose of the qualifying organization.

Here, the agency has added a new phrase, “majority,” to describe the amount of the worker’s time that is needed to be spent at the qualifying organization, while separating the phrase “predominantly” to govern over the nature of the worker’s job duties, that they must be related to furthering the organization’s educational or research-oriented mission.  This new word, “majority,” was not contained in the text of the INA.  It joins the word “predominantly,” which also was never included in the INA.  The agency reads both of these requirements into the statute based on the legislative history, in which it was stated that “by virtue of what they are doing, people working in universities are necessarily contributing to educating Americans.”  (See S. Rep. No. 260 at 21-22.)

This rule change claims to allow greater flexibility for third-party petitioner’s to provide highly-skilled employees for qualifying educational, nonprofit, and research organizations.  However, third-party petitioners may be adversely affected by this rule change, because it is not uncommon for H-1B employees to spend less than 51% of their time working at a qualifying institution.  For example, a physician may only spend one day a week working at the qualifying hospital, while performing other important duties at another worksite the rest of the week.  It is important to remember that these qualifying institutions are on a different hiring cycle than other kinds of employers, and they have special needs and requirements that are unique to these types of entities.  The H-1B numerical cap deadline and requirements could hinder these institutions from performing their educational, nonprofit, and research objectives, by preventing them from hiring any H-1B workers whatsoever.

The Meaning of an “Affiliated or Related” Nonprofit Entity

Under the proposed new rule, this definition has been expanded upon to include a new category.  This new category intends to provide an additional way a nonprofit entity can establish a sufficient relationship with a qualifying organization—one based on a formal, written affiliation agreement.

Under both the old and new rules, a nonprofit entity can be considered “related to or affiliated with” an institution of higher education if:

  • Both organizations have shared ownership or control by the same board or federation, or
  • The nonprofit is operated by the institution of higher education, or
  • The nonprofit is a member, branch, cooperative, or subsidiary of the institution of higher education.

The new rule adds this additional category:

  • The nonprofit has entered into a written, formal affiliation agreement with the institution of higher education. The agreement must establish an active working relationship between the organizations for the purpose of research or education, and the primary purpose of the nonprofit must be to directly contribute to the research or educational mission.

This new expansion to the phrase “related or affiliated nonprofit entity” better accounts for the nature and scope of many common, bona fide affiliations that exist in which H-1B employees are needed.  It provides for greater flexibility for institutions of higher education to access highly-skilled and talented H-1B workers, throughout their often wide network of related and affiliated entities.  Unlike the changes made to the term “employed at,” this new expansion to the term “related or affiliated nonprofit entity” should be welcomed by H-1B employees and employers alike.  These new changes are still only a proposed change to the current regulations.  If you would like to add your voice to the discussion and make a public comment on how these new changes may negatively or positively affect highly-skilled nonimmigrant workers or employers, please visit regulations.gov and make a comment before February 29, 2016.

 

If you have questions about immigration and/or you need help in an immigration process, please contact The Law Firm of Shihab & Associates, Co., LPA for a consultation. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, asylum cases, immigrant visas, non-immigrant visas, employment visas and H-1B visas, investors-visa, PERM applications and many more.

 

In just a few short months, the U.S. Citizenship and Immigration Service (USCIS) will begin accepting new  H-1B quota visa applications for FY 2017, starting on April 1, 2016. It is important this year to begin the application process well in advance in order to file as early as possible, because demand for H-1B visas is expected to be very high. In 2015, the FY 2016 visa quota cap was met in only five short days. With a visa cap of only 65,000 for bachelor’s degree-holders and an extra 20,000 for those with Master’s degrees, there will likely be many more petitioners than visas, resulting in a lottery process.

The first step in the H-1B visa process is for a job to be offered by a U.S. employer and accepted by an alien worker. There must be a valid employer-employee relationship, for example if the employer has the ability to hire, supervise, pay, and fire the employee. In addition, the job offered must be in a “specialty occupation,” that is, one requiring at least a bachelor’s degree that is directly related to the position.

Once the alien worker accepts the job offer, the employer will then agree to file an H-1B petition on his or her behalf. The H-1B visa application must be filed at least six months prior to the start date of the H-1B worker’s new employment. This means that for FY 2017, the earliest work start date for a new H-1B employee will be October 1, 2016.

Once a foreign worker has been hired, the employer should retain an immigration attorney in order to file a Labor Condition Application (LCA) and the H-1B petition. The LCA must be filed and approved with the Department of Labor (DOL) before the actual H-1B petition can be filed. The attorney will collect all the necessary information for the LCA. This will include: a job description, dates of employment, employer information, and the beneficiary’s qualifications, education, and experience.h1b-visa

Then, the immigration attorney will research the prevailing wage determination for the specific area of employment. This involves checking with the Department of Labor and the National Prevailing Wage Center, or investigating other possible wage sources. The attorney will then find the appropriate prevailing wage for the specific H-1B position, and will file a Labor Condition Application (LCA) with the Department of Labor on behalf of the employer. Currently, the Department of Labor is taking around 6 days to process LCAs, so it is important to begin this process at least two months in advance of the April 1, 2016 date for accepting new H-1B petitions.

The LCA will require the employer to pay the H-1B employee the same prevailing wage and benefits as domestic employees. It also ensures that no similar domestic workers have been displaced or suffered reduced wages by hiring the foreign worker. Continue reading

If you are interested in finding others in the immigration community and making professional connections, including potential H-1B employers and job-seekers, then please join the “USA immigration Jobs and Visas”group on LinkedIn.

In this group, members may post or browse through H-1B job listings on the group’s Bulletin Board. You may also post questions and participate in discussions on the Community Forum. Topics include employment-based and family-sponsored immigrant and non-immigrant visas, citizenship and naturalization, student visas, treaty investor visas, DACA, audits, litigation and appeals, and various other topics pertaining to immigration in the United States.

“USA Immigration Jobs and Visas” is hosted by Attorney Gus M. Shihab, President and CEO of the Law Firm of Shihab & Associates. Gus Shihab is the former Chapter Chair of the American Immigration Lawyers Association (AILA) in Ohio, and he has more than 22 years of experience representing corporations both large and small, as well as international investors in the employment and transfer of foreign talent before the U.S. Department of Labor and the U.S. Citizenship & Immigration Service. Mr. Shihab has been recognized by many independent organizations as a leading lawyer in the practice of immigration law. He was nominated for the Litigator’s Award in 2014 and is a life member of the Multi-Million Dollar Advocate’s Forum. Mr. Shihab is an AV rated lawyer, a professional recognition by peers, a designation given to only 5% of all lawyers in the United States.

By joining the discussion on USA Immigration Jobs and Visas, a professional will have access to relevant articles, organizations seeking the employment of highly skilled individuals as well as a pool of qualified international labor.

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A “clean extension” bill for the EB-5 Regional Center program has been recommended by the House and Senate, and is set to be included with the larger appropriations bill set to pass before the end of the week. This would extend the program until at least September 30, 2016, with no changes made. Meanwhile, the United States Citizenship and Immigration Services will continue to accept and process all EB-5 petitions as usual until the new extension is formally passed.

EB-5 advocates, including the EB-5 Investment Coalition, are working diligently in Washington to promote reform and improvement measures to the EB-5 program that will make it easier and more attractive for immigrants to invest in the U.S. economy.
While more time is needed to implement these reforms, EB-5 advocates and industry leaders remain confident that immigrant investor voices will continue to be heard in Congress, and that before long improvements to the EB-5 program will be made that will protect all members of the EB-5 industry and increase investment opportunities.

Until that time, the existing EB-5 Regional Program will continue until at least September 30, 2016, and business will carry on as usual for USCIS and EB-5 petitioners.

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On Dec. 16, Congresional leaders released a $1.1 trillion spending bill that will increase the H-1B filing fee for any consulting firm looking to hire a nonimmigrant worker.

A fee of $4,000 will be applied to firms of at least 50 employees that have at least 50% of their employees on an H-1B or L-1 visa for any H-1B that isn’t an amendment. This will effectively double the previous legal fee of $2,000 which was established in 2010. The L-1 fee for companies with 50% of their workers on a visa is $4,500, according to the bill.

The increased fee will be used to help create “a biometric entry and exit tracking system,” the legislation said. The final vote is expected to happen Dec. 18. This will be a great stress to applicants and petitioners alike. This may also be in response to the high demand for H-1B visas, as well the uptick in the conversation among legislatures looking for immigration reform.

On top of this action, there is also a lack of action on the front of the I-squared Act. Introduced in the Senate in January, the Immigration Innovation Act of 2015, or the I-Squared Act, could really improve the visa application process for H-1B applicants in a variety of ways. The biggest of which is the potential for a much higher H-1B cap.

However, the latest attempt of amending the Immigration and Nationality Act by Congress has yet to be voted on by the Senate. Even though tech giants around the United States, including Google, Microsoft and Facebook, have lobbied for the Senate to vote for the bill, it appears that the bill has a very low chance of passing.

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