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Prepare for H-1B Filing Now

The United States Citizenship and Immigration Services (USCIS) will once again open its doors to H-1B cap applications and considering that the applications for last fiscal year was 233,000, it is safe to assume that it will exceed this figure this year.

Ultimately, the applications are expected to exceed the quota which is at 65,000 for foreign workers in specialty occupations and 20,000 for graduates with advanced degrees from the US. And if the H-1B petitions go beyond the cap, the USCIS will conduct a lottery to determine which petitions will make it to the cap.

With that in mind, it is best to be prepared early to avoid delays. US companies and employers intending to hire foreign workers must start working on all the paper works for the H-1B petitions now to be ready for the April 1 filing.

For instance, the approval and certification of the labor condition application (LCA) with the Department of Labor (DOL) in itself takes about seven business days and that should be considered in the timeframe. In fact, it is recommended that LCAs be prepared and submitted to the DOL as early as February.

It is also best to be ready with all necessary documentations because the USCIS will issue a Request For Evidence (RFE) if your petition is not sufficient to grant said request. When RFEs are issued, this can delay the approval of the petition sometimes way beyond the October 1 start day.

RFEs are often about the position open for H-1B workers, the qualifications and degree held by said worker and whether that matches with what is desired by the company. Sometimes it also looks into whether the candidate’s education and/or experience are equivalent to a US bachelor’s degree.

Petitions not selected during the lottery will be rejected. The petition and the fee will be returned except in cases of multiple filings. Thus, it is advisable not to file multiple petitions for one H-1B worker because that can result in the denial of all petitions and the fees paid will not be refunded. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B so long as it is for different positions and based on legitimate needs of the employers.

H-1B petitions may also be accompanied with a request for premium processing but this will not increase the probability of getting an H-1B number. It will, however, be issued receipts faster than those under regular processing and in case the USCIS conducts a lottery, petitions filed under premium processing will know the results more quickly.

In preparing the H-1B petition, employers must indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, this fact must be stated in the petition. Criminal charges have been filed by the Department of Homeland Security (DHS) against employers for stating anything other than the truth.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the worksite at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied with documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2016.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during the period.

If you have everything and all necessary documentations, it is best to file the H-1B petition on March 31 to be received at the USCIS by overnight mail delivery on April 1.

FILING H-1B PETITION AFTER CAP IS REACHED

May an employer file an H-1B petition even if the cap has been met? With the 65,000 annual quota for the cap-subject H-1B petitions for fiscal year 2014 already reached, an employer should determine if the petition is subject to the numerical limit.

Based on USCIS data, approximately 124,000 H-1B petitions were received during the first week of the filing period that ended on April 5, 2013. These included petitions filed under the advanced degree exemption.

Since the number of H-1B petitions exceeded the annual quota, the USCIS conducted an H-1B lottery on April 7, 2013. The H-1B lottery is a computer-generated selection process which was last used in 2008. The USCIS first used the lottery process to select the 20,000 petitions under the advanced degree exemption. Then, it randomly selected the 65,000 cap-subject petitions. Petitions under the advanced degree exemption which were not selected were also included in the lottery for the cap-subject petitions.

The petitions not selected in the lottery process as well as those filed after the final receipt date were rejected and returned with the filing fees. The USCIS however announced that it would continue to accept cap-exempt petitions.

A petition is cap exempt if the current H-1B worker has already been counted against the cap. This is the case where the petition filed on behalf of the H-1B worker is (1) to extend his stay in the U.S., or (2) change the terms of his employment, or (3) change employers, or (4) allow him to work concurrently in another H-1B position.

Petitions for new employment are exempt if the beneficiary will work at an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.

In order to qualify as an “institution of higher education”, the institution must admit only high school graduates, is legally authorized to provide education beyond secondary education, provides bachelor’s degree programs or not less than 2-year programs that can be credited towards such a degree, is a public or nonprofit organization and accredited by a nationally recognized accrediting agency.

To be a related or affiliated nonprofit entity for purposes of the H-1B exemption, it must be connected or associated with an institution of higher education through shared ownership or control by the same board or federation; or be operated by the institution; or be attached to the institution as a member, branch, cooperative or subsidiary.

In a case that our office handled a few years ago, a dental intern petitioned by a nonprofit community health center was granted H-1B status under this exemption because we were able to prove by an institutional agreement and contract of services that the clinic was affiliated with the University of Massachusetts.

The USCIS is currently revisiting its position on this exemption category. It will however grant the exemption to those who have been previously granted exemption as “related or affiliated nonprofit entities” after June 6, 2006 unless there is a “significant change or clear error in prior adjudication.”

If the USCIS finds that there is a significant change or clear error in the adjudication, it will not grant the exemption. The reorganization of the entity as a for-profit entity, expiration of the affiliation not automatically renewed and affiliation with a different institution as basis for exemption are evidence of significant changes which may lead to denial of the exemption.

A nonprofit research organization is an organization engaged in basic research and/or applied research. A government research organization is a U.S. entity engaged in the performance or promotion of basic research and/or applied research.

J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.

Crackdown on H-1B Visa Fraud

Employers engaging in work visa fraud do not only face administrative penalties but also imprisonment if convicted.

An owner of a tech staffing company in New Jersey faced 6 months prison sentence and $50,000 fine for filing H-1B petitions for ineligible foreign workers and running fake payrolls. Another company owner in Iowa also faced a three year prison sentence for submitting H-1B petitions containing false statements about the beneficiaries’ jobs and work locations.

Various fraudulent schemes have been employed by employers who abuse the H-1B program. However, with the government crackdown on work visa fraud, the number of criminal convictions has also increased.

Last month, the owners of Dibon Solutions, an information technology consulting company, were indicted for multiple counts of conspiracy to commit visa fraud and wire fraud. The company operated like a staffing company which provided third-party companies the services of inexpensive foreign workers with computer expertise on an “as needed” basis.

Under this scheme, Dibon Solutions sponsored foreign workers for H-1B visa stating that the foreign workers will work for their company. In reality, Dibon did not require the services of the foreign workers. Instead, it hired these foreign workers to provide consulting services to third-party companies.

The scheme is lucrative business for both the employer and the third party companies as the employer profits by charging high hourly rates for consultancy services. Third party companies, on the other hand, save money because they do not pay workers when their services are not needed.

This is extremely unfair to the foreign workers who are generally paid only when they are placed at a third-party company. Worse, the workers do not usually get paid unless the third-party company pays their employer.

The nonproductive status of workers due to a decision of the employer is termed as “benching” by the Department of Labor. Employers are required by law to pay the foreign workers even if they are in a nonproductive status. These foreign workers, however, are not paid and are encouraged to find third party companies themselves.

The H-1B process starts with the filing of the Labor Condition Application (LCA) with the Department of Labor. The employer is required to state basic information about the proposed employment such as rate of pay, period of employment and work locations. The employer also makes several attestations. If the LCA contains false information, the LCA would be fraudulent.

Recently, the president of iFuturistics, an Indian national from North Carolina, pleaded guilty to conspiracy to violate U.S. laws by filing fraudulent immigration documents following an investigation. He had received a total of $13.2 million in payment from staffing companies. Records showed that he tried to cover his fraudulent scheme during an inspection visit by moving in furniture and setting up work stations.

Among the charges that may be filed against an employer for committing work visa fraud include conspiracy to violate United State laws, which carries a maximum prison term of five years and a $250,000 fine and presenting fraudulent immigration documents, which carries a maximum prison term of 10 years and $250,000 fine. Available remedies against the employer include restitution to victims of the fraudulent act. Also, properties, real and personal, used in the perpetration of the crime will be forfeited to the government.

USCIS Expects H-1B Cap To Be Reached April 5

The USCIS announced last March 15 that more petitions than the H-1B cap may be filed between April 1, 2013, the start of the filing season and April 5. It is therefore recommended that employers file cap subject H-1B petitions within those first five days. A petition is considered accepted, not on the date the petition is postmarked, but on the date the USCIS receives it.

Each fiscal year, an H-1B visa quota of 65,000 is allotted for foreign workers in specialty occupations. An additional 20,000 H-1B visas are made available to graduates with advanced degrees from U.S. universities. For fiscal year 2013, the H-1B cap of 65,000 was reached on June 11, 2012.

The public will be notified of the final receipt date or the date when the quota is reached. When the number of petitions received by the USCIS exceeds the quota, the USCIS will conduct an H1-B lottery which will randomly select the petitions to be accepted for processing. Petitions not selected in the lottery will be rejected and returned. Petitions filed after the final receipt date will also be rejected. It was in 2008 when the USCIS last used the lottery system.

Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request. This year however the USCIS will start premium processing of H-1B petitions subject to cap on April 15, 2013. This is to address the expected high volume of premium processing requests and the likelihood that the cap will be met in the first five days of filing.

Before the filing of an H-1B petition on Form I-129, the petitioner must file with the U.S. Department of Labor, a Labor Condition Application (LCA). The certified LCA must be filed with the Form I-129 petition.

To be classified as a specialty occupation for H-1B purposes, the occupation requires at least a bachelor’s degree or higher in the specific specialty or its equivalent. In order to be eligible for a specialty occupation, the beneficiary must have at least one of the following: (1) US bachelor or higher degree, (2) foreign degree equivalent to a US bachelor degree or higher, (3) an unrestricted license or certification to practice profession or (4) experience equivalent to completion of degree.

The H-1B petition must be accompanied by proof that the beneficiary is eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluation and license to practice the profession, if required, among others.

The USCIS allows for the submission of other evidence if the degree has not been awarded yet but requirements for the degree have been met. The final transcript as well as a letter from the Registrar confirming that all degree requirements have been met may suffice.

A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.

There is a base fee of $320 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.

Demand for H-1B Visa on the Rise

As of April 9, 2012, the USCIS received a total of 25,600 cap-subject H-1B petitions for employment beginning October 1, 2012. This is double the petitions it received for the entire month of April last year.

Some 17,400 of these filed petitions are subject to the regular cap and 8,200 are advanced degree petitions. Under the law, a maximum of 65,000 H-1B petitions are allowed to be filed each fiscal year. There is a separate 20,000 cap for petitions for individuals with a master’s degree or higher from a U.S. university.

This fast pace of H-1B filing is viewed by many as a sign of an improving economy. The H-1B visa is used to employ workers in specialty occupations, such as teachers, therapists, accountants, engineers and computer programmers.

While the demand for H-1B numbers is unpredictable, it can be said that the demand fluctuates with the economy. H-1B demand dropped in the last few years as the economy slowed down.

To illustrate, for fiscal year 2008 the 65,000 cap was reached on the first day of filing or on April 2, 2007. The next fiscal year, it took one week or until April 7, 2008 for the cap to be reached. For fiscal years 2010, 2011 and 2012, the cap remained open until December 21, 2009, January 26, 2011, and November 22, 2011, respectively.

In this year’s first week of filing (April 2 to April 6), the USCIS received more than 22,000 petitions. Last fiscal year, the first week of filing saw a total of 10,400 petitions.

If employers continue filing cap-subject H-1B petitions at this rate, there is no doubt that the quota will be filled very soon, perhaps before the end of summer.

In case the USCIS receives applications that exceed the numerical cap, it will select at random the number of petitions required to reach the cap from the pool of petitions received on the final receipt date. Cap-subject petitions that were received but not selected in this “H-1B lottery” would be rejected, along with those received after the final receipt date.

Not all H-1B petitions are subject to the numerical limits. Among those exempt are petitions for H-1B workers employed by institutions of higher education or a related or affiliated nonprofit organization and nonprofit research organizations.

Also excluded from the cap are individuals who have been counted previously against the cap within the last 6 years. This includes petitions extending the H-1B employment of current H-1B workers, changing the terms of employment for current H-1B workers, transferring employment from one cap-subject H-1B employer to another H-1B employer, and allowing current H-1B workers to work concurrently in a second H-1B petition.

Preparatory to the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor before filing the petition. It must also have documentary evidence of the beneficiary’s educational background and work experience to make him/her eligible for H-1B classification.

Students on optional practical training (OPT) are eligible for continued work authorization, even after their OPT ends and before their H-1B employment begins, if they benefit from the so-called “cap gap rule”. Qualified students who are beneficiaries of timely-filed H-1B petitions requesting change of status to H-1B automatically get an extension of their “duration of status” and OPT employment authorization until October 1st.

Given the high demand for the H-1B cap, employers who currently have or are planning to hire employees who need H-1B sponsorship must initiate the H-1B petition process as soon as possible.

Consequences of Improperly Terminating H-1B Employee

An employer may not validly terminate an H-1B employee by simply notifying him or her that the employment has ended. An accounting firm was reminded of this rule the hard way in a recent case decided by an Administrative Law Judge in San Francisco.

The employer in that case filed an H-1B petition for a tax accountant for employment beginning October 1, 2008. The employee had been working for the firm on optional practical training status under his F1 visa.

In the H-1B petition, the beneficiary was listed as a full-time employee working 40 hours a week. The USCIS approved the petition, but six weeks before the start date, he was terminated from the job. Before his termination, the employee was paid $25.30 per hour.

A bona fide termination of an H-1B worker requires a showing by the employer of three things. First, the employer must give notice to the worker. Second, it must give notice to the Immigration and Customs Enforcement (ICE) so that the I-129 petition can be cancelled. Third, it must pay for the worker’s transportation back home.

Failure to prove every element of a bona fide termination carries with it the harsh consequence of making the employer liable to pay the required wage rate for the entire period of authorized employment.

The employer failed to meet the second and third elements. It did not inform the ICE that the H-1B employment would not materialize after all. The H-1B petition was revoked more than two years after the employee was fired when the employer finally reported it to the USCIS in 2010. The employer also did not pay for the worker’s return flight to his home country.

The administrative law judge ordered the employer to pay back wages for a period of almost three full years, with pre- and post-judgment interest. It was further ordered to reimburse the worker for the legal fees incurred in the filing of the H-1B petition, which by law should be borne by the employer.

The decision was careful to note that H-1B employment does not result in an indentured servitude. The employer may terminate the worker’s H-1B employment at any time, and the H-1B worker is likewise free to leave his or her employment. Regardless of which party ends the relationship however, there will be consequences to such termination. In this case, to be relieved of its wage and other obligations, the employer must have complied with the legal requirements for a bona fide termination.

Interestingly, the judge even found that the worker’s earnings while he worked at another tax firm after he was fired by the employer should not be deducted from whatever amount is ordered against it. The judge explained that the rule of mitigation of damages did not apply to the action which was based on immigration law and regulations, and that the worker did not earn the income while on a voluntary absence from the employer.

This case is a sharp reminder to any employer that until the immigration authorities are informed of an H-1B termination, it remains liable for the H-1B worker’s wages and benefits. The inconvenience of having to mail a notice to the ICE and paying several hundred dollars for a terminated employee’s plane fare certainly seems negligible compared to the liability that could very easily be incurred by employers who are unaware of the rule on bona fide termination.

H-1B Filing Starts April 1

On April 1, 2011, the USCIS will start accepting cap-subject H-1B petitions for employment beginning on October 1, 2011. Cases are considered accepted on the date USCIS receives a properly filed petition and the correct fee has been submitted, not the date that the petition is postmarked.

There is an annual numerical cap of 85,000 on H-1B petitions, of which 20,000 is reserved for workers with an advanced degree from a U.S. university. For fiscal year 2011, the 20,000 cap was reached on December 24, 2010, while the 65,000 cap was reached on January 26, 2010.

There have been recent significant developments in the H-1B program that need to be highlighted.

First, the USCIS has introduced certain revisions in its Form I-129, the principal form for the H-1B petition. One change in the latest revised form pertains to additional questions for employers seeking to sponsor employees who will perform off-site work. In such cases, the new form asks whether the employer has included an itinerary with the petition. There is now also a specific section in the H-1B Data Collection Supplement asking the employer yes/no questions on off-site assignment.

Second, the revised Form I-129 also incorporates in the same supplement the fee increase imposed by Public Law 111-230, which was signed into law in August 2010. H-1B petitioners that employ 50 or more employees in the U.S. with more than 50% of its U.S. employees in H-1B or L status must pay an additional fee of $2,000.

Another development in the H-1B program that should not be overlooked is the “cap-gap” regulation. This regulation allows F-1 visa holders who are graduates of U.S. universities and are working under the optional practical training (OPT) program to remain in the U.S. and continue working until the H-1B petition filed on their behalf is approved and their status changes effective October 1st.

This regulation remedies the dilemma faced by F-1 students with OPT work authorization which ends one year after their graduation or usually in June. Under the new regulation, these graduates no longer need to depart the U.S. and re-enter after a few months in time for the start of their H-1B employment. The graduates’ status and work permit are automatically extended until USCIS approves the H-1B petition that was filed by the employer before the expiration of the OPT.

Very recently, the USCIS also announced that it is reviewing its policy on the H-1B cap exemption for “non-profit entities that are related to or affiliated with an institution of higher education”. As an interim procedure, the agency will give deference to determinations made since June 6, 2006, that a non-profit entity is indeed related to or affiliated with an institution of higher education, but the burden remains on the petitioner to prove such relation or affiliation. The employer may do this by submitting a copy of a previously-approved cap-exempt petition and a copy of the approval notice.

The USCIS has also clarified that where the proposed H-1B employment will occur in more than one location, the state where the petitioner’s primary office is located will determine the appropriate Service Center to which the Form I-129 must be filed, regardless of the actual work locations.

Wage Obligations of H1B Employers

In a Q&A guideline dated February 17, 2011, the U.S. Department of Labor (DOL) discussed the obligations of an H1B petitioner. Among these obligations is the payment of the required wages.

In the labor condition application (LCA) filed with the DOL, the H1B employer must promise that it has paid or will pay the required wage for the worker for the entire period of the authorized employment.

The employer attests that it will pay whichever is higher between the actual wage rate (the rate the employer pays all other individuals with similar experience and qualifications for the position in question) or the prevailing wage (the wage paid to workers in the same occupational classification in the area of intended employment)

Wage violations carry with them sanctions such as civil penalties, back wages and debarment from the H1B program. Violations may be reported to the USCIS or DOL.

To find out what the prevailing wage is, the employer may request a prevailing wage determination from the National Prevailing Wage Center (NPWC). Alternative wage sources for the prevailing wage include the collective bargaining agreement, a wage survey conducted by an independent authoritative source, and the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data that can be accessed online through the iCERT Portal System and the FLC Data Center. The employer should keep documentation of the offered wage on file.

The prevailing wage is valid during the validity of the H1B petition. In no case may the employer pay a wage lower than the federal, state, or local minimum wage, whichever is higher. The current federal minimum wage rate is $7.25 per hour.

The obligation to pay the required wage rate begins when the employee “enters into employment”, which is when the employee presents him/herself for work or comes under the control of the employer. According to regulations, this includes waiting for an assignment, reporting for orientation or training, going to an interview, or studying for a licensing examination. Even when the employee has not yet “entered into employment”, he/she must be placed on the payroll beginning on the 30th day after admission into the U.S. pursuant to the H1B petition, or if already in the U.S., beginning on the 60th day after he/she becomes eligible to work for the employer.

The employer is not exempted from paying an employee on nonproductive or “benched” status. If the employee works full-time, he/she must still be paid the full pro-rata amount due (if the employee is salaried) or for an entire workweek (if paid hourly). Part-time employees must be paid for at least the number of hours indicated in the H-1B petition.

Law and regulations require that the H-1B worker continues to be paid even during a temporary reduction in force or temporary shut-down. If the employee is nonproductive because of his/her own decision to be unavailable for work and for a reason unrelated to employment, there is generally no obligation to pay the wage rate.

In some instances, the employer’s obligation to pay terminates prior to the expiration of the LCA’s validity, such as when the H1B worker resigns, moves to another employer, or is terminated from work. When the employee voluntarily leaves, the employer may not charge the H1B worker a penalty fee outright or through deductions, but they may enter into an agreement for the payment of liquidated damages in case of early termination by the worker.

A bona fide termination also ends the employer’s obligation to pay the required wage. The employer must have notified both the employee and the Department of Homeland Security, and it must also pay for the worker’s cost of return transportation to his/her last place of foreign residence. This offer of transportation cost does not extend to the worker’s dependents.

Visa Fees Raised to Fund Border Security

The USCIS has started to implement the fee increase in H-1B and L petitions as mandated by Public Law 111-230, also known as the Border Security Emergency Supplemental Appropriations Act of 2010.

The fees collected will help fund the $600 million project of the Obama Administration to enhance border protection and law enforcement.

The hike in the filing fees are $2,000 for the H-1B petitions and $2250 for L-1A and L-1B petitions.  Subject to the hike are petitions postmarked on or after August 14, 2010.  It will remain in effect until September 30, 2014.

The additional fees are required to be paid by petitioners that employ 50 or more employees in the United States with more than half of the said employees in H-1B or L (including L-1A, and L-1B, and L-2) nonimmigrant status.  Full-time and part-time employees are included in the count.

When filing an H-1B or L petition, the petitioner will now have to include the additional fee or a statement outlining why the new fee does not apply.  If the USCIS does not receive the additional fee or a statement of explanation for nonpayment, it may issue an RFE (Request for Evidence).

Prior to the new law, the filing fees were $320 (base processing fee), $500 (fraud prevention and detection fee) and the applicable ACWIA fee ($1500 or $750) needed to file an I-129 form.  A separate fee of $1000 was also required for premium processing.

The visa fee hike has been criticized as unfair and discriminatory by Indian IT companies that would be affected the most.  They file an estimated 50,000 visa petitions, including H-1B and L-1 visas annually.

But Senator Charles Schumer, the main proponent of the new law and the fee hike to fund it said: “If you are using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of the program, I and my colleagues believe that you should have to pay a higher fee to ensure that American workers are not losing their jobs because of unintended uses of the visa program.”

Senator Schumer also said that the border security bill had to be passed in order to generate Republican support for the comprehensive immigration reform bill that he has been passionately advocating.

President Obama who had endorsed the bill that he signed last August 13 said: “The resources made available through this legislation will build upon our successful efforts to protect communities along the Southwest border and across the country…So these steps will make an important difference as my administration continues to work with Congress toward bipartisan comprehensive immigration reform to secure our borders, and restore responsibility and accountability to our broken immigration system.”

Immigration advocates however have expressed doubts that the new law will help push immigration reform.  The president of the League of United Latin American Citizens said: “Efforts to overhaul our broken immigration system have once again taken a back seat to appeasing anti-immigrant xenophobes, as Congress passed another dramatic escalation in border enforcement with very little evidence that the past escalations have been effective.”

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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