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.

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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Last Tuesday, the United States House of Representatives passed a legislation that would bar potential immigrants from Iraq, Syria, Iran and Sudan, or those who have visited those countries in the last five years, from entering the United States without a visa. The bill, which passed 407 to 19, also completely changed the visa program for people from those respective countries, as it placed restrictions on would-be visa waiver participants.

Now, congressmen and senators are looking at possibly changing the K-1 visa program by making it even more difficult for applicants in what is said to already be an extensive vetting process. This comes in reaction to the attacks on Paris in November and especially the shooting in San Bernardino, California, as FBI Director James Comey said the woman suspected of participating in the shooting was “radicalized” before she applied for her K-1 visa to come to the U.S.

Congress has acted quickly, as it often does, with the subject of national security is on the table. But the idea of making the vetting process rigorous could prove easier said than done, unless they continue the trend of barring people from the aforementioned countries. It is going to be difficult for congress to come up with a law that covers all of the bases given the ambiguity that always comes with these sorts of cases.

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Amid the spread of fear and question marks here in America over the recent ISIS attacks, it may be good to take a second to recognize what happens when a refugee of any kind attempts to cross into American borders.

The refugee vetting process has several key checkpoints that any and all refugees must pass in order to enter the United States. The Homeland Security Department handles the process to allow refugees to enter the country, a process which forces incoming refugees to take fingerprints and submit in-person interviews overseas, where they are forced to provide even the most intimate details of their lives abroad. These details include information on their families, friendships, activities both social and political, their employment and other personal information.

Although the process of identifying Syrian refugees through documentation can be difficult, since many don’t have the necessary documentation to begin with, Syrian refugees have said that they often are forced to bring family records would often do the job for almost any other refugee from another country.

Refugees from all countries are screened by several different agencies, including the United Nations High Commission for Refugees, where they are first referred to whichever country that makes the most sense for resettlement. If that’s the United States, they are then screened by the National Counterterrorism Center, the FBI’s Terrorist Screening Center and then finally the Department of State. Refugees from Syria, in particular, are then subject to additional screening. All of this takes between 18 to 24 months before a Syrian refugee is approved for admission to the United States.

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Bipartisan legislatures in both Republican and Democratic-leaning states have recently enacted legislation that would advance state-based immigration reform. With the failure of both the Bush and Obama administrations to pass a comprehensive federal immigration reform package, states are now leading the charge to create their own individualized foreign guest-worker programs.With the approval of Congress, a federalist approach could further strengthen the economy by filling critical state-specific labor needs, while giving industrious foreign workers at all skill levels a chance to work legally in the United States, and eventually pursue a path to permanent residency or citizenship.

If you were to compare the state-based approach to our current federal approach for guest-workers, it would be like comparing a from-scratch, local-ingredient sourced meal prepared just to your specific tastes–with a warmed-up, from-the-freezer takeout meal from a national chain restaurant, where the limited menu is the same everywhere.

State-based immigration reform has so far been pursued by a growing number of states: Arizona, California, Colorado, Georgia, Kansas, Massachusetts, Oklahoma, Texas, and Utah. California, for example, would grant guest-worker visas for undocumented immigrants already living in California.Utah would also allow undocumented workers to stay, granting them the ability to apply for a two-year guest visa. Texas would not legalize any undocumented workers, but would allow for more legal migrant workers to enter from Mexico. A stronger Mexican economy in recent years–along with aggressive border enforcement–has led to a near 0% net increase in undocumented immigrants in the U.S.This has led to a critical shortage in many local industries such as construction, cleaning, landscaping, farming, fishing, restaurant, and service industries.

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In November, federal legislation was once again proposed that would drastically alter the process of employing H-1B and L-1 workers in the U.S.–increasing the burdens, costs, requirements, and penalties for employers–while effectively barring many small and mid-sized employers from hiring any of these highly-skilled and sought after foreign workers.

This new bill, the H-1B and L-1 Visa Reform Act of 2015, is not likely to pass, however it echoes previous attempts to alter these visa category requirements that would impair the ability of employers to hire the H-1B and L-1 visa employees they need.These controversial changes are included in a reform package that also includes a few welcome and promising developments for H-1B and L-1 employers, such as a doubling of the current H-1B visa cap and a transition to a demand-based system.Therefore, it is important to analyze and discuss in advance this proposed legislation and how the proposed changes might affect H-1B and L-1 visa employers if passed.

This proposed legislation, co-sponsored by U.S. Senators Chuck Grassley and Dick Durbin, is motivated by a misguided belief that non-immigrant visa holders displace American jobs and lower wages for domestic workers. As we have mentioned in previous blog entries, this is simply not supported by the research studies and the facts. Foreign workers in the H-1B and L-1 categories constitute some of the best and the brightest talent from around world, they increase our economic efficiency and growth, and they actually create new professional-level jobs for domestic workers.

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Foreign Workers Boost Our Economy

Each year, the U.S. turns away many thousands of highly-skilled and educated foreign workers, many of them with advanced degrees, because of an arbitrary visa cap set back in 1990. With demand far exceeding the limited supply of only 85,000 H-1B visas allowed per year, we are missing out on a valuable opportunity to recruit the best and the brightest minds from all over the world.

Time and time again, studies show that these foreign workers provide a tremendous boost to the U.S. economy, and that easing H-1B visa restrictions would send our economy into overdrive by filling key labor shortages and increasing economic efficiency and growth.

Contrary to popular misconceptions, foreign workers do not reduce wages or take jobs from American workers – in fact, they actually create jobs, raise wages, and boost the national economy.

U.S. Turns Away Tens of Thousands of Highly-skilled Foreign Workers Every Year In April of 2013, the United States Citizenship and Immigration Services (USCIS) halted the H-1B filing process only four days after accepting over 124,000 petitions, because the yearly 85,000 H-1B visa cap had already been met. That means that for 2014, we turned away over 39,000 highly-skilled workers based on a random lottery, in addition to the many thousands who never even had a chance to apply because the cap was met so soon. It’s much the same every year with our current overly-restrictive policy on H-1B visas.

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There is no question that, going through history, the United States of America is and always will be a country of immigrants. This country was built from people coming from overseas and making a life in a foreign land. However, as the long-simmering and controversial debate over immigration continues to be a focal point in presidential debates, it may surprise some of you to see the successful companies founded by American immigrants.

Google Inc., for starters, was co-founded by Sergey Brin, a Russian immigrant, in 1998. Brin moved to the United States at age 6 in the thick of the Cold War in 1979 and went on to become one of the richest men in the country. AT&T was founded by Scottish immigrant in Alexander Graham Bell, who was also the inventor of the telephone and investment firm Goldman Sachs was founded by a German immigrant named Marcus Goldman.

Immigrants have left a huge mark on American shopping as well. Immigrants from all over the world started companies such as eBay (Piere Omidyar, France), Radio Shak (Theodore and Milton Deutschmann, England), Kohl’s (Maxwell Kohl, Poland), Big Lots (Sol Shenk, Russia) and Nordstrom (John W. Nordstrom, Sweden).

Among other famous companies founded by immigrants are the entertainment provider Comcast (Daniel Aaron, Germany), Yahoo! (Jerry Yang, Taiwan), Colgate (William Colgate, England), Sara Lee (Nathan Cummings, Canada), the chemical company Dupont (E.I. du Pont, France).

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