When Immigration Matters

Sponsoring an Employee on an H-1B Visa | Public Access File

Posted by Karen-Lee Pollak on Tue, Jun 13, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Public Access File 

Regulations require that the employer maintain a public access file which is to be made available for public inspection. As part of the LCA and H-1B visa petition process, the employer must agree to make certain information relating to the LCA available for public examination at the employer’s principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with the Department of Labor. Such information is referred to as the Public Access File and should consist of the following items: 

  • A copy of the LCA and related cover pages.
  • Documentation providing the wage rate to be paid to the employee.
  • A detailed explanation of the employer’s system used to set the actual wage to be paid to the employee.
  • Documentation used by the employer to determine the prevailing wage.
  • Documentation evidencing that the employer has complied with the union employee notification requirements, if there is a union.
  • A summary of the employer’s benefits offered to U.S. workers in the same occupational classification, an explanation regarding the difference in benefits offered to such employees if all employees in the same occupational classification are not offered the same benefits and, if applicable, an explanation of any home-country benefits the employee will receive.
  • Additional information is required to be placed in the Public Access File if the employer is H-1B dependent or a willful violator.

The employer should maintain a Public Access File for each employee and should keep this file separate from the employee’s personnel file. The Public Access File must be maintained by the employer for at least one year past the date of the employee’s related employment. 

Additional requirements for H-1B dependent employers. Employers are considered to be dependent if they have less than 25 workers and more than 7 H-1B workers; between 26 to 50 workers and more than 12 H-1B workers; or more than 50 workers with 15% or more of them being H-1B foreign nationals. In this case, H-1B dependent employer must fulfill 2 additional requirements. Displacement of US workers: An H-1B dependent employer must attest that by hiring a H-1B worker, it is not displacing any US worker for a similar position within 90 days before or after filing a H-1B petition. 

Recruitment efforts: The H-1B dependent employer must also attest to making good faith attempts to recruit US workers and offering prevailing wages for this position. 

Terminating an H-1B Visa Holder

Upon terminating an H-1B visa holder, the employer is obligated to pay for the reasonable costs associated with the employee’s return flight home. In most instances, this is not an issue because typically when an H-1B visa holder leaves one employment, he or she is accepting another employment opportunity and, as a result, does not return to his or her home country. 

When Should You File?

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  

Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date. In recent years there has been more H-1B applications than visas available so USCIS has resorted to a lottery system in selecting H-1B visa applications for adjudication.

Learn More

To learn more about how to sponsor an employee on an H-1B specialty occupation visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Sponsoring an Employee on an H-1B Visa | Employer Responsibilities

Posted by Karen-Lee Pollak on Mon, Jun 12, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Employer Responsibilities 

The first step in the H-1B process is to submit a Labor Condition Application (LCA) to the Department of Labor (Form ETA 9035). The LCA contains a number of important attestations that the employer agrees to. They are the following:

  • Agree to pay the prevailing wage: The actual wage is the wage that the company has set for the position for all employees with similar experience and skill. Usually, the prevailing wage is a wage set by the Department of Labor. The employer must pay the higher of the two wages. If the employee is employed part-time then the salary will be the hourly prevailing wage for the position or the actual hourly salary whichever is higher.
  • Working conditions: The employer must state that employing the foreign national will not adversely affect the working conditions of other similarly employed workers.
  • Strikes, lockouts, and work stoppages: If any of these develop after the Labor Condition Application is filed with the Department of Labor, the petitioning employer must inform the Department of Labor.
  • Notice regarding the LCA: employers must provide notice of the LCA to its employees through posting the LCA on the premises for at least ten business days. The posting must be done in two different conspicuous locations.

Next Topic - Public Access File

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss public access file.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Sponsoring an Employee on an H-1B Visa | Filing Fees

Posted by Karen-Lee Pollak on Sun, Jun 11, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Filing Fees 

  • Standard (Base Filing) Fee: The standard (base) H-1B visa processing fee is $460 and this is for the I-129 petition. This H1B visa fee is also applicable to transfers, amendments and renewals. 
  • ACWIA (Training) Fee: For employers who have between 1-25 full-time workers, the American Competitiveness and Workforce Improvement Act fee is $750. For employers with 26+ full-time employees, the fee is $1,500. Some organizations are exempt from this training fee including non-profits with affiliations to educational institutions, governmental research organizations and primary/secondary educational institutions. 
  • Fraud Prevention & Detection Fee: This $500 fee is applicable to new H-1B petitioners or those changing employers. This H-1B visa fee is not required for extensions with the same sponsoring employer.
  • Public Law 111-230 Fee: This H-1B visa fee is applicable to companies that have upwards of 50 employees with over half on H-1B or L1 status. The PL 111-230 was suspended in October 2015, but was replaced by PL 114-113 on December 18, 2015. This law requires H-1B petitioners that employ 50 or more employees in the United States if more than 50 percent of these employees are in H-1B, L-1A or L-1B nonimmigrant status to pay an additional $4,000 per applicant
  • Optional H-1B Visa Fees: Premium processing is an option available to those who want to expedite the H-1B visa process. This service is offered by the Department of Homeland Security and guarantees a 15-day time frame. In order to do so you must complete form I-907 along with the $1225 fee. Again, this is one of the optional H-1B visa fees. Another option is to have family members apply to be dependents of the petitioner by filing out Form I-539. Currently, United States Citizenship and Immigration Service has suspended premium processing and it is not available.

Fee Breakdown

Fee type

Fee in USD

Details

 Base filing fee

$460

 For every petition ( went up in Dec 2016)

AICWA Fee
(American Competitiveness and Workforce Improvement Act of 1998)

$750

or
$1,500

 $750 – for employers with 1 to 25 full time employees )

$1500 – for employers with 26 or    more full time equivalent employee )

Fraud prevent & detection fee

$500

Only applies to New H1Bs and Change of employers petitions only. Does not apply to Chile and Singapore based H1B1 petitions

Fee based on Public Law 114-113

$4000

Applicable, if 50 or more employees and more than 50% of employees are on H1B or L1 Visa status, required for new H1B filing and change of employers.
Read H-1B fee increase $4000 rule to check if it applies to your case

Premium processing fee (Optional)

$1,225

 For faster adjudication within 15 calendar days.   USCIS has currently suspended premium processing for H1-B visas

Immigration Attorney Fee

 

 

 

Who Pays Filing & Legal Fees 

  • For legal fees the H-1B employer cannot require that an employee pay for or reimburse the employer for attorney fees associated with an H-1B Visa.
  • The employer is required to sign an attestation in the labor condition application that they paid the fees and that they will not seek reimbursement from the employee.
  • The same rule applies to most filing fees except that the employee can pay the premium processing fee

Next Topic - Employer Responsibilities

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss employer responsibilities.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Sponsoring an Employee on an H-1B Visa | Who Qualifies?

Posted by Karen-Lee Pollak on Sat, Jun 10, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Must Be a Specialty Position 

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position; 
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree. 

Next Topic - Filing Fees

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss filing fees.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

FATCA Tax Reporting for US. Residents with Foreign Bank Accounts

Posted by Karen-Lee Pollak on Thu, Apr 23, 2015 @ 5:48 PM

permanent resident, H1BToday I asked my colleague and friend International Tax Attorney Richard Rubin to explain in an article the new FATCA tax reporting rules that goes into effect on June 30, 2015.  FATCA impact US citizens, Green Card holders and other US tax resident individuals who have accounts with non-US banks or financial institutions.

"Bank accounts in countries outside the US can cause headaches when owned by US taxpayers. While owning foreign accounts has always entailed a reporting headache for US taxpayers, the problem has recently heightened as a result of the FATCA legislation that is being implemented in a number of countries outside the US.   

FATCA is a set of US tax reporting rules that impact US citizens, Green Card holders and other US tax resident individuals who have accounts with non-US banks or financial institutions.

An acronym for the Foreign Account Transactions Compliance Act, FATCA requires banks and financial institutions in countries outside the US to provide the IRS with details of accounts that are owned by US taxpayers. Although the mechanism varies slightly by country, in most countries where FATCA has been implemented banks and financial institutions are required to report these details to the Revenue Authority of that country, and the Revenue Authority is required to pass this information along to the IRS.

Foreign banks are generally required to report accounts known to be owned by US citizens and Green Card holders, as well as accounts owned by anyone who is potentially US tax resident, as indicated for example, by an associated US address, US telephone number, or US person with signing power or other authority over the account. 

For those US tax residents who have duly reported their non-US bank and other accounts on their US tax returns (and on their Foreign Bank Account Reports or “FBAR’s”), FATCA has little practical significance. Conversely, FATCA is directly relevant to US tax residents who have not reported their non-US accounts.  FATCA is also potentially relevant to individuals living outside the US if they intend immigrating to the US or otherwise becoming US tax resident.

Compared to the Revenue Authorities of most other countries, the IRS tends to take non-compliance far more seriously, as is evident from the IRS penalties that are generally imposed for non-compliance, especially non-reporting of foreign bank accounts.  As a result, individuals who are required to report their non-US bank accounts, but have not done so, typically face heavy penalties and in some cases criminal prosecution when the IRS discovers their foreign accounts through FATCA reporting.

FATCA is at varying stages of implementation in a number of countries.  Take for example South Africa:  in June 2014 South Africa signed an agreement with the US (a so-called Intergovernmental Agreement or “IGA”), in terms of which South Africa undertook to implement FATCA according to a timetable. Although the dates originally agreed have been extended, in February 2015 South Africa enacted legislation giving effect to FATCA.  As things currently stand, South African banks and institutions are obliged to commence reporting client account details with effect from June 2015. While certain implementation issues and dates remain to be clarified, one thing is clear; that in time to come South African banks and institutions will routinely be rendering details of accounts held by US taxpayers.

As with most other jurisdictions, South African institutions are required to provide details of accounts known to be owned by US citizens or Green Card holders, as well as accounts owned by anyone who is potentially US tax resident, as indicated for example, by an associated US address, US telephone number, or US person with signing power or other authority over the account.  In some cases, an “in-care-of” or “hold mail” address is sufficient to require reporting, if this is the sole address on file with the South African bank. 

Individuals who obtain Green Cards are often unaware that if they spend even a short period in the US they typically become US taxpayers; and being unaware of their US taxpayer status, they generally don’t file US tax returns or FBAR’s, with the result they also fail to report their non-US accounts. In cases such as these, FATCA reporting may cause the individual’s foreign bank to render their account details to the IRS before the individual gets to file the necessary returns and make the necessary disclosures.

In most cases the headache of unreported foreign accounts can be relieved - and generally cured - by taking appropriate corrective measures.  This often includes some form of Voluntary Disclosure to the IRS, and in certain cases may include other forms of disclosure.  There are a number of categories of Voluntary Disclosure, and the various options entail different qualifying criteria as well as different consequences. In certain cases, the risk of criminal prosecution may favor a solution that focuses on reducing the chances of criminal indictment; while in others, the risk of criminal prosecution is sufficiently low allowing focus on a solution that reduces or eliminates civil penalties.

While the remedy always depends on the specific facts, one principal is almost universally true; that doing nothing about foreign unreported accounts is not a solution". 

If you have international tax questions call Richard

RUBIN LAW ASSOC. PC

International Tax Attorneys

USA - SA Tax & FATCA Advisors

 www.rubinlaw.us

www.fatcasouthafrica.com

 

Employment Authorization for Spouses of H-1B Visa Holders?

Posted by Karen-Lee Pollak on Tue, May 06, 2014 @ 11:06 AM

H1_B, DHS, USCIS H-4Today May , 2014, the Department of Homeland Security (DHS) today announced the publication of two proposed rules, including a rule to extend employment authorization to spouses of certain H-1B workers, and a proposal to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States. It is hoped that Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas. 

“These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas.  “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

USCIS Announces H-1B Lottery

Posted by Karen-Lee Pollak on Thu, Apr 10, 2014 @ 2:34 PM

H1-B H-1B, USCIS, H1BUSCIS announced on April 7 that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

USCIS ANNOUNCES H1B CAP REACHED FOR NEW H1B VISAS

Posted by Karen-Lee Pollak on Mon, Apr 07, 2014 @ 11:40 AM

H1B cap, H1B, H1B visaWASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015.  USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.   

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing. 

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;

  • Change the terms of employment for current H-1B workers;

  • Allow current H-1B workers to change employers; and

  • Allow current H-1B workers to work concurrently in a second H-1B position.

DOJ Fines IBM for Discriminatory H1-B Hiring Practices

Posted by Michael Pollak on Thu, Oct 03, 2013 @ 10:48 AM

H1-B; H1; DOJ, USCISThe Justice Department announced that it reached an agreement yesterday with International Business Machines Corporation (IBM) resolving allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (INA) when it placed online job postings for application and software developers that contained citizenship status preferences for F-1 and H-1B temporary visa holders.  F-1 visas are issued to foreign students studying in the United States, and H-1B visas are issued to foreign nationals with technical expertise in specialized fields.  

Under the INA, employers may not discriminate on the basis of citizenship status unless required to comply with law, regulation, executive order or government contract.  Although IBM’s job postings were for positions that would ultimately require the successful candidate to relocate overseas, the anti-discrimination provision of the INA does not permit employers to express or imply a preference for temporary visa holders over U.S. workers, such as U.S. citizens and lawful permanent residents, for any employment opportunity in the United States.

 Under the settlement agreement, IBM has agreed to pay $44,400 in civil penalties to the United States.  IBM further agreed to revise its hiring and recruiting procedures and train its human resources personnel to ensure compliance with the INA, and to be subject to reporting requirements for a period of two years.

 

H-1B Statutory Cap Reached for FY 2014

Posted by Michael Pollak on Wed, Apr 10, 2013 @ 10:30 PM

The United States Citizenship and Immigration Services (USCIS) has announced that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY) 2014, including more than 20,000 H-1B petitions filed on behalf of persons exempt under the advanced degree exemption. USCIS is no longer accepting H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

karen-lee pollakUSCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.

For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing. The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

H-1B petitioners and beneficiaries now anxiously await news of whether or not their filings are granted one of the precious H-1B spots.

As a reminder, the 15-day premium processing period is not set to begin for cap-subject H-1B petitions until Monday, April 15, 2013. For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap are not counted towards the H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

Extend the amount of time a current H-1B worker may remain in the U.S.; change the terms of employment for current H-1B workers; allow current H-1B workers to change employers; and allow current H-1B workers to work concurrently in a second H-1B position.

Of course, USCIS will continue to accept "cap-exempt" petitions. These are petitions from a non-profit institution of higher education, a non-profit affiliated with an institution of higher education and a non-profit research institution. In addition, petitions for J-1 physicians who have obtained a waiver pursuant to the state 30 or federal programs are "cap exempt," as are beneficiaries of employment offers at institutions of higher education.

For more information regarding the information in this Alert, or if you require assistance with your company’s immigration or employment issues, including IRCA compliance, I-9s, audits, visa processing or comprehensive immigration strategy, please contact me.  

Regards;

Karen-Lee

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