Articles Posted in H-1B

watching-time-860275-m-300x225For many years, the H-1B visa has provided a unique opportunity for foreign specialized workers to join the U.S. workforce. The visa was initially designed to supply American companies with foreign workers to offset shortages in the U.S. labor market. However, after a tumultuous presidential election, increased attention is now being placed on U.S. immigration policy and the H-1B visa is now under intense scrutiny from both sides of the political aisle. Legislation is now being introduced in the U.S. Congress that is bound to dramatically change the rules for H-1B visa holders. It is critical for foreign workers and their employers to understand the potential ramifications of these changes and to act fast.

Criticism of the H-1B visa has typically taken two forms. First, there are those who criticize the H-1B visa because they claim that it has been widely abused. The initial purpose of the visa was to help U.S. companies fill shortages in the labor market, but some companies have abused the visa in an attempt to outsource American jobs to less expensive foreign workers. These critics of the current visa rules have attempted to close loopholes that would otherwise incentivize companies to seek foreign labor in place of existing American labor. Second, there are those who broadly criticize the H-1B visa by suggesting that the program inherently harms the U.S. workforce. This second criticism of the H-1B visa is now gaining traction among both Democrats and Republicans. New guidelines for the H-1B visa are being proposed in both houses of Congress that could radically overhaul the program.

In the House, Rep. Darrell Issa (D) has introduced “The Protect and Grow America Jobs Act.” Issa claims that the legislation aims to “ensure that our valuable high-skilled immigration spots are used by companies when the positions cannot be filled by the existing workforce.” Issa’s bill would increase the salary requirement for an H-1B visa from $60,000 to $100,000. The purpose of this change, he claims, is to prevent companies from outsourcing American jobs to foreign workers. Issa represents a district of California that has unfortunately seen a lot of H-1B abuse by large corporations. But some critics in the House claim that Issa’s bill does not go far enough.

Being selected in the random H-1B visa lottery is the first challenge an H-1B visa contender faces.  For those with good bhaagy (luck in Hindi), once selected, their H-1B visa petitions must be strong on its own merits to receive approval.  Getting your H-1B visa petition approved depends on “successful preparation” which is a partnership between the H-1B visa candidate, the employer and the attorneys preparing the petition.  It is only when the partnership works to its fullest potential will the H-1B visa petition be approved.  One of the most important key elements to successful preparation is assuring that the attorneys have all relevant data for the employer and employee timely.  Our law firm has pioneered an online case management portal a decade ago wherein candidates can share their information and data in a secure manner.  The Law Firm of Shihab & Associates, Co., LPA uses a robust system that provides immediate status updates and transparency through the process. We have prepared the attached presentation to demonstrate the efficient preparation process leading up to the April 1st, 2016 filing date.

The Law Firm of Shihab & Associates strive to keep you informed about key immigration issues.

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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.

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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.

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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.

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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?

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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

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.

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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