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 [email protected] 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 [email protected] 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 [email protected] 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 [email protected] or under her twitter handle law_immigration.

How Can You Sponsor an Employee for a Work Visa?

Posted by Karen-Lee Pollak on Fri, Jun 09, 2017 @ 11:30 AM

Find The Right People written on road sign-763974-edited.jpegFind The Right People written on road sign-763974-edited.jpegWhen a U.S. citizen is not available to fill a position, many employers across the country want or need to sponsor an employee for a work visa. While the process is detailed and complex, here are some fundamental things to keep in mind if this scenario applies (or might soon apply) in your organization:

  • Permanent or Temporary? 

The first thing to determine is whether the employee that you wish to sponsor for a work visa would fill a permanent or a temporary position.

  • Sponsoring Permanent Workers

If the position is permanent, then the foreign employee may apply for permanent residence (a.k.a. “a green card”), provided they have unique skills that fit into one of the five preference categories (noted below). As the prospective employer, you will also need to demonstrate to the Department of Labor’s satisfaction that hiring them will not displace a U.S. worker, or have a negative impact on wages or working conditions for U.S. workers.    

  • Permanent Worker Visa Preference Categories 

There are five permanent worker visa preference categories: First Preference EB-1, Second Preference EB-2, Third Preference EB-3, Fourth Preference EB-4, and Fifth Preference EB-5 (note that EB-5 is for investors, and so typically will not apply to employers who wish to sponsor foreign employees). For a description of each preference category, click here.

  • Sponsoring Temporary Workers

The USCIC has several nonimmigrant categories of temporary workers (noted below). As part of the sponsorship application, you will have to attest to certain commitment and conditions, including that: you will pay a wage that is no less than that paid to similarly qualified workers in the geographic area; you will provide working conditions that will not negatively impact other similarly employed workers; there is no strike or lockout where the sponsored employee would be working. 

  • Temporary (Nonimmigrant) Worker Categories

As noted, USCIS offers several non-immigrant categories of temporary workers, including (but not limited to): H1B Visa - Specialty Occupation; O1 Visa - Extraordinary Ability; L1 - Intracompany Transferee; TN Visa - Nonimmigrant NAFTA Professional. For a description of each category, click here.

  • Working with an Experienced Team

To learn more about how to sponsor an employee for a work visa, contact the experienced Pollak team today. We will help you clearly understand the rules and process — including those that have recently changed and may shift in the near future — and ensure that your application to the USCIS is complete, accurate and timely. Contact us to learn more.

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 [email protected] or under her twitter handle law_immigration.

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.

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

IMMIGRATION ALERT -- PREPARE TO FILE CAP H-1Bs APRIL 1, 2013

Posted by Michael Pollak on Mon, Mar 04, 2013 @ 6:56 PM

IMMIGRATION ALERT -- PREPARE TO FILE CAP H-1Bs APRIL 1, 2013 OR WAIT 18 MONTHS TO HIRE NEW H-1B CAP SUBJECT WORKERS!

h-1b specialty occupation visaThe annual H-1B Cap Season for U.S. companies (other than institutions of higher education and non-profit research institutions) will be opening in less than two months!  Predictions are this Season will be the shortest since the start of the Great Recession. There will likely be only a few weeks, or less, during which private industry employers are able to file H-1B visa petitions for start dates on or after October 1, 2013 when the Fiscal Year (FY) begins.
 
Each FY, 65,000 H-1Bs become available for what is referred to as the “General Cap” and 20,000 become available for what is referred to as the “Master’s Cap.” Foreign nationals holding a U.S. Master’s degree or higher fall within the Master’s Cap; all others fall within the General Cap. The H-1B filing season opens six months before the beginning of the FY, i.e., April 1, provided that it falls on a weekday.
 
This H-1B season will likely be the shortest since FY 2009, when 165,000 H-1B petitions were filed within a five-day period at the beginning of April, 2008, and U.S. Citizenship and Immigration Services conducted a lottery to select the petitions that would be awarded a Cap H-1B visa number. After the start of the Great Recession, the demand for H-1Bs decreased dramatically, resulting in significantly longer Cap Seasons. As the U.S. economy continues to recover and demand for new hires continues to rise, however, we anticipate the H-1B Cap will be reached this year within the first few weeks, if not the first week.  
 
Thus, there is speculation we will be returning to the days of March madness, with employers scrambling to prepare and perfect their petitions before the filing widow closes. Private industry employers wishing to secure a FY 2014 H-1B Cap number should be prepared to file their petitions no later than April 1, 2013 or risk having to wait until October 1, 2014, before new nonimmigrant professional workers can be hired.  

How Do I Qualify for an H-1B or Specialty Occupation Visa?

Posted by Michael Pollak on Wed, Jan 16, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to legally work in the United States with an H-1B visa. 

h-1b visaThe H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows US employers to temporarily employ foreign workers in specialty occupations.

 

Thanks for your comments, questions, and suggestions regarding immigration topics.

What is a L-1 Intracompany Transferee Visa?

Posted by Michael Pollak on Mon, Jan 14, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to work in the United States with an L-1 visa.

L-1 visaThe L-1 or intracompany transferee visas are non-immigrant visas available to employees of an international company with offices in both the United States and abroad. The visa allows such foreign workers to relocate to the corporation's US office after having worked abroad for the company for at least one continuous year within the previous three prior to admission in the US.

 Thanks for your comments, questions, and suggestions regarding immigration topics.

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