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New Changes Affecting H-1B Petitions

 April 1, the first day for filing H-1B petitions for Fiscal Year 2011 that starts on October 1, 2010, is fast approaching. By now, employers that wish to hire highly skilled workers in specialty occupations should have gathered all their required documents.

There is a yearly cap of 65,000 and another 20,000 for those with master’s degrees from U.S. universities. Although the demand for H-1B visas last year was not as high as in the prior years, early filing is recommended. Last year was not a good year for businesses that hired H-1B workers and this was one of the reasons why the cap was not reached until December 21, 2009. This year, the economic situation has improved so that the cap is expected to be reached early.

H-1B is a non-immigrant visa category for temporary workers in specialty occupations such as accountants, architects, engineers, computer and information technology specialists and teachers. It requires as a minimum a bachelor’s degree or its equivalent.

There are several recent changes that employers should be aware of when filing H-1B petitions. The required Labor Condition Application (LCA) approval can no longer be obtained in one day. LCAs are now filed through the newly established iCert online system of the U.S. Department of Labor. Under the iCert, it takes at least seven (7) days to get it approved.

The LCA contains attestations by the employer regarding the proposed employment such as work location, period of employment and rate of payment which must be the prevailing wage or actual wage, whichever is higher. The LCA can be filed no earlier than six (6) months before the date of the intended employment.

Since there may be delays in the processing of the LCAs, it is advisable to submit the application early. It is important that all entries in the form are correct, particularly the Federal Employer ID Number (FEIN) of the petitioning employer. Inaccurate completion may result in outright rejection or denial.

Another recent change stems from a new United States Citizenship and Immigration Services (USCIS) memo that makes it harder to secure H-1B for staffing firms such as healthcare and computer consulting firms that hire professionals to work at third-party sites. The memo requires the employers to show that they have control over the day-to-day tasks of the employees.

Corporations substantially owned by a prospective H-B beneficiary would be restricted to petition for an H-1B on behalf of its owner-beneficiary because presumably, the beneficiary and not the corporation would have control over his/her own work.

If the numerical cap is met during the first five business days of the H-1B filing period, the USCIS resorts to a random lottery of qualified petitions; otherwise, it will continue to accept petitions until the H-1B caps are met.

Exempted from the H-1B cap are petitions filed by institutions of higher education or related or affiliated non-profit entities or non-profit research organizations or governmental research organizations. Also exempted are petitions for extensions of stay, change in terms of employment for current H-1B workers and concurrent employment in a second H-1B position.

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