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Posts Tagged ‘H-1B Visa’

What to Know About the H-1B Cap Gap

Wednesday, March 22nd, 2017

Visa_iStock_000016934361_ExtraSmall (2)By:  Allison McDowell, Content Coordinator

Current federal regulations allow for the automatic extension, if certain circumstances are met, of Optional Practical Training (OPT) time for F-1 students who have a pending or approved H-1B petition.  These “Cap Gap” provisions require that the beneficiary’s petition is subsequently selected and approved in the H-1B lottery.  If approved, Cap Gap helps cover the gap that may otherwise disrupt an employee’s employment authorization, which would occur between when the OPT EAD expires through September 30th, in other words, after the OPT ends and before an approved H-1B petition takes effect.  Any F-1 student with a timely filed H-1B petition and request for change of status will be allowed to extend the duration of F-1 status and any current employment authorization until the first day of the new fiscal year, October 1 st.  If the petition is not selected for processing, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for departing the USA.

Major Criteria

To be eligible for Cap Gap extension, the employer must file the H-1B Change of Status petition with USCIS and have it received prior to the post-completion OPT expiration date.  Or, if received by USCIS after the post-completion OPT expires but during the following 60 day grace period, the beneficiary’s F-1 status and permission to remain in the U.S. are extended, but there is no work authorization.

Effects of Premium Processing Suspension

 USCIS has suspended premium processing for all H-1B petitions for six months, starting April 3, 2017.  This also applies to H-1B quota cases, or “cap cases.”  This suspension could have major effects on those who have a status expiration date earlier than October 1, 2017.  For F-1 OPT beneficiaries, whose employment authorization is only extended until September 30, 2017, there would be a period of lack of employment authorization until the H-1B case is approved.  Similarly, L-1 visa, or other employment visa holders, may have their work authorization set to expire shortly after October 1, 2017 and the H-1B cap case may remain pending past October 1st, therefore leaving a gap in work authorization until USCIS completes processing of the case.

STEM OPT Extension

 Stem Extension could be available to bridge the gap in employment authorization for those that qualify.  Any F-1 nonimmigrant student with a degree in science, technology, engineering, or mathematics (STEM) can apply for a 24-month extension of their post-completion OPT employment authorization.  Students who are eligible for Cap Gap extension of their post-completion OPT can apply for a STEM OPT extension during the Cap Gap.  In order to be eligible, the employer must be enrolled in and in good standing with E-Verify, and the initial grant of post-completion OPT employment authorization must also have been related to the STEM degree.  Note that an application cannot be submitted once the H-1B petition is rejected, denied, revoked, or withdrawn and the 60-day departure prep period has begun.

Additions have recently been made to the list of STEM degrees and can be found at STEM Designated Degree Program List.  Additional information for F-1 students regarding STEM OPT extensions can be found at USCIS’s Optional Practical Training Extension for STEM Students (STEM OPT) page or the STEM OPT Hub.

Travel Outside U.S.

While USCIS is processing the H-1B visa petition, beneficiaries should not travel outside the U.S.  Doing so would void the Change of Status H-1B petition, subsequently turning it into an outside the U.S., Consular Processing H-1B petition.  Similarly, if the practitioner selects consular processing, the H-1B petition will not process under the Cap Gap regulations, which would be disastrous to the case.  Leaving the U.S. while employment authorization is based on Cap Gap voids the Cap Gap authorization.  Therefore, the employee will only be able to re-enter the U.S. up to 10 days prior to the effective date of a subsequently approved H-1B petition.

Practitioners need to be aware of the effects of foreign employees traveling abroad, as many attorneys who are not skilled in business immigration are not aware of the major consequences of visa beneficiaries doing so.

Dependents

The H-1B Cap Gap authorization also applies to dependents of the visa beneficiary that are in valid F-2 status, including spouses and children.  Keep in mind, however, that the travel restrictions also likely apply to dependent visa holders, whose foreign travel may void the Change of Status petition.

 

 

 

When to File an Amended H-1B Petition: USCIS Offers Additional Guidance

Monday, June 1st, 2015

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On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:

  1. When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
  2. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. H-1B petitioners should follow the guidance below.

When You Must File an Amended Petition

You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.

When You Do NOT Need to File an Amended Petition

  • A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
  • Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
  • Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
    • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
    • The H-1B employees spend little time at any one location; or
    • The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.

When you do need to File an Amended H-1B Petition

  • If your H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, you have 90 days from the date of this web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if you have not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, you have until August 19, 2015 to file an amended petition.
  • If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, you must now file an amended petition for these H-1B employees by August 19, 2015.
  • If you do not file an amended petition for these employees by August 19, 2015, you will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
  • If your amended H-1B petition is denied, but the original petition is still valid your H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
  • If your previously-filed amended H-1B petition is still pending, you may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon your latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005) for similar instructions about portability petitions.

To the extent possible, you should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.

This ruling affects a lot of employers in the consulting industry, where frequent employee relocations are necessary. Those employers must be especially careful in tracking their H-1B employees’ planned moves and make sure a new LCA and amended H-1B petition are filed before August 19, 2015 for pre-May 21 relocations and before they start work at a new location for post-May 21 relocations.

For More Information

If you have any questions about filing an amended H-1B petition, please visit our Customer Contact Center.

Our office is available to assist you with your H-1B filings.  Please contact us at info@immigratincompliancegroup.com or call 562 612.3996.

USCIS Announces H-4 Spouses Eligible to Apply for Work Authorization on May 26, 2015

Wednesday, February 25th, 2015

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It’s been a long wait for this to become a proposed rule with an approximate effective date (following Federal Register publication and public comment) of May 26, 2015.  It’s still not automatic work authorization incident to H-1B dependent status, but it’s certainly better than none at all, right!  So, how does an H-4 spouse qualify?

You obviously must be the spouse of an H-1B visa holder who either has an approved I-140 petition and is unable to file for permanent residency because the priority date is backlogged….OR,  your spouse is the beneficiary of an approved H-1B extension past the 6th year max-out based upon an unexpired PERM Labor Certification or an  I-140 Immigrant Petition that has been pending for at least 365 days.

We anticipate that this will certainly fuel earlier PERM case filings for those H-1B applicants who have spouses that wish to work and contribute.  Please contact our office if you have any questions or wish to file for spouse work authorization.

Refer to USCIS Announcement

 

 

 

H-1B Visas – The Job Description and Degree Requirement

Thursday, January 29th, 2015

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It’s almost that time of year again for H-1B filing season FY 2016 (commencing April 1, 2015), and  it’s not too early for employers to be discussing hiring needs with their management team and assessing where in the organization they wish to sponsor H-1B professionals, and identifying  potential candidates that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates in L-1 status working for other employers or in some other non-immigrant classification who would need to change their status to H-1B in order to extend their stay and accept new employment.

The H-1B job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation? A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its US equivalent.  For example, architecture, engineering, IT, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, and the arts are considered specialty occupations.

Small to medium-size companies are frequently asked to justify why the position  requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, examples of work being produced, the education of previous employees in the position, etc., why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service or university that is authorized to evaluate work experience for degree equivalency).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for their green-card sponsorship (permanent residency), it is essential that the degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which they will file their labor certification, the first step in the green-card process.

USCIS now requires very detailed job descriptions for H-1B visa petitions that contain the position summary, duties and responsibilities, as well as the percentage allocation spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET occupational classification system and the Occupational Outlook Handbook, which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

Discuss your H-1B requirements as well as any other business immigration matters by contacting us at info@immigrationcompliancegroup.com, or call 562 612.3996.

USCIS Announces H-1B FY 2015 Cap has been met

Monday, April 7th, 2014

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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.

Is USCIS Adjudicating Entrepreneur Start-up H-1B’s?

Monday, February 17th, 2014

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We are hearing in the field that they are if the employer-employee relationship can be evidenced through an independent Board of Directors that controls the terms of employment of the entrepreneur and can be convincingly and thoroughly documented, along with appropriate corporate formation documents and a viable business plan. Keeping this in mind when developing the structure of a start-up is exceedingly important for immigration purposes.

Here are USCIS FAQ’s on the subject.

It’s Beginning to Look A lot like H-1B Filing Season 2015!

Friday, January 3rd, 2014

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The H-1B visa category is one of the most used visa classifications by US employers and is available to professionals that will work in a specialty occupation that generally requires a minimum of a bachelor’s degree or its equivalent.

Last year, the number of H-1B visa petitions filed in the first 5 days exceeded the entire H-1B visa allotment.  Hundreds of employers were unable to hire all the foreign-based professional talent that they required, and their petitions went into a lottery pool, left to chance and uncertainty.

Given that we are seeing improvements in the economy, it is anticipated that this filing season will be the most competitive one in many years.  Just to review…There is a limit of 85,000 H-1B visas available each fiscal year, 20,000 of which are reserved for individuals who have graduated with an advanced degree (a master’s or higher degree) from a US college or university that is  accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Secondly, the school must be a public or other nonprofit institution. If these requirements are not met, the candidate will not qualify for the master’s degree exemption. It is also to be noted that employers stand a stronger chance obtaining advanced degree petition approvals, even if the position being offered only requires a bachelor’s degree or its equivalent.

Our position is that it’s just not too early to start assessing where you’d like to add personnel and to start working with your immigration provider on such important matters as:

1)  Credential evaluations for prospective employees with foreign degrees

2)  Thorough job descriptions indicating the percentage of time spent on core areas of the position

3)  Needed updates to your corporate stats and profile information

4)  Updating intake questionnaires for H-1B employees

5)  For new employers who have previously not filed H-1Bs and are not in the databases accessed by government agencies, be prepared for a request to submit to the Department of Labor iCERT system for Labor Condition Applications (LCA) a copy of your IRS letter confirming your EIN number.  It is also not unusual for them to request your corporate formation documents before they will certify your LCA.  H-1B petitions will be denied if not accompanied by a certified Labor Condition Application.  It might be advisable to file your LCA’s in late January or February even though this will shorten a few months from the 3-year initial approval.

If the prospective employee is a national of Canada, Mexico, Australia, Singapore or Chile you have other options to consider.  Canadian and Mexican professionals qualify for TN status (pursuant to Trade NAFTA).  You can file anytime of the year under this classification; there are no quotas, applicants can apply right at the border, and the 3-year period of stay can be extended indefinitely.  Here is a link to the list of occupations that qualify for TN classification.

Australian nationals are eligible for E-3 status in 2-year increments and can consular process their applications, with unlimited extensions available.  A Labor Condition Application is required for these cases.  Nationals from Singapore and Chile qualify according to Free Trade Agreements for the H-1B1 classification.  There is a quota for this category that has never been reached.

If you are contemplating the hire of a professional who currently holds H-1B status with another employer, they are exempt from the quota and can start working for you immediately even though the petition is pending approval.

We encourage employers to call us with any questions that you might have or if you’d like to retain our firm to handle your H-1B filings.  Our email: info@immigrationcompliancegroup.com or by phone 562 612.3996.

 

 

Infosys to pay $34M in Fines for Visa Fraud and I-9 Violations

Thursday, October 31st, 2013

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Infosys is India’s second largest software exporter, and has about 30,000 workers in the U.S. (160,000 worldwide) with $6B in sales.

After years of investigation, it was found that Infosys “knowingly and unlawfully” brought Indian workers into the United States on B-1 business visitor visas( since 2008), to circumvent  the higher costs and delays of a longer-term employment-related visa, such as the H-1B visa that the workers should have had.  It was found that Infosys systematically submitted misleading information to US immigration authorities and consular officials to obtain the B-1 visas that do not permit employment, unfairly gaining a competitive edge and undercutting American workers qualified for the jobs

Press release states: “Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011 as required by law, including a widespread failure to update and re-verify the employment authorization status of a large percentage of its foreign national employees…more than 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations.”

The largest fine of its kind, was paid out as follows: $5 million to Homeland Security Investigations, $5 million to the Department of State, and $24 million to the DOJ.

How can employers protect themselves?

The five federal agencies charged with workplace enforcement are not only going after businesses that are known to employ undocumented workers, but they are also making examples out of industry leaders across the country creating headline news. It goes without saying, that this is now a topic that should be on HR executives’ action list.  Turning a blind eye can be exceedingly costly and cause great damage to a company’s reputation.

For more on this Story:  CBS Reports   NY Times

For more on our services and solutions

 

 

H-1B Visa: California Service Center Enforces Radical Interpretation of H-1B Requirements for Job Location Changes

Tuesday, January 15th, 2013

There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same.

Previously, according to a 2003 legacy INS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file and obtain a new certified Labor Condition Application (LCA) with the Department of Labor prior to the employee moving to the new location, post the LCA at the new work site according to DOL regulations, make sure wage and hour obligations were met, but did not have to file an amended petition with USCIS.

Under the CSC’s new and controversial interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed this radical reinterpretation of the law – just the CSC.

Long-standing guidance still indicates that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should proceed with caution and work with a competent immigration professional whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. Employers need to be careful to reveal all possible jobsite locations for each H-1B worker at the front end of case processing.

USCIS headquarters has the H-1B amendment issue under consideration and has indicated that they may issue additional guidance regarding this matter. In the meantime, please be advised that for cases under the jurisdiction of the CA Service Center for H-1B workers whose jobsite locations have changed, an amended petition prior to any geographic relocation is now required.

Should you wish to become a client of our office, please contact one of our immigration professionals at info@immigrationcompliancegroup.com, or call 562 612.3996.

USCIS Develops Tools to Help Foreign Entrepreneurs Create and Grow Businesses in the USA

Thursday, November 29th, 2012

Much of the immigration challenges around case approval for entrepreneur start ups with USCIS has to do with the cases being reviewed by untrained officers, a lack of overall guidance for attorneys and  practitioners concerning this casework, and a fundamental lack of “real world”, hands-on  business knowledge on the part of USCIS.  The agency has definitely released a nice looking mini-website marketing piece on the subject.  We remain hopeful that the implementation of the below-listed changes will be the start of a new mindset for USCIS adjudication of entrepreneur start-up casework.  In reviewing the information,  we note that the Entrepreneur in Residence (EIR) team states that they have:

– Developed and deployed a training workshop for USCIS employment-based immigration officers that focuses on start up businesses and the environment for early-stage innovations;
– Trained a team of specialized immigration officers to handle entrepreneur and start up cases;
– Modified Request for Evidence templates for certain nonimmigrant visa categories to incorporate new types of relevant evidence into the adjudicative process; and
– Developed a plan for quarterly engagements with the entrepreneurial community to ensure that USCIS stays current with industry practices.

To sustain the momentum and build on the team’s accomplishments, USCIS indicated that they have extended the EIR project through April 2013.  The project should be extended indefinitely if we are seriously courting foreign entrepreneurs to help jump-start the US economy.  Among other things, the team states that it will expand its focus to immigrant visa pathways that may enable foreign entrepreneurs to start a business in the United States within current immigration law.

We are hopeful, in light of the economic challenges ahead of us in the USA at this time, that Congress will have a light bulb moment and pass legislation for a Start-up Visa and find  a balanced and fair approach to increasing the visa alotment for STEM occupations without the punitive tradeoff approach of penalizing other visa classifications in return.  For more information on the EIR program, we link here.