Articles Posted in H-1B

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Effective October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for all H-1B extension of stay petitions.  Premium processing is now available for all types of H-1B petitions.

When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time.  If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

Please contact us if you are interested in requesting premium processing, or if you have any questions.

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UCSIS recently announced that it will restructure the focus of H-1B site visits. The H-1B visa is an employment based visa in which the employer petitions USCIS to grant lawful status for the purposes of work on the behalf of the employee. These visas help employers recruit foreign nationals in an effort to compensate for the lack of domestic supply of qualified and skilled workers. Enforcement officers will be looking at the following key points with in hopes of reducing H-1B abuse by employers:

  • Cases where employer information is not easily verifiable via commercially available data
  • High ratio of H-1B workers in comparison to U.S. workers
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As of Monday March 27, 2017, the United States Citizenship and Immigration Services (USCIS) confirmed that there will be a random lottery for the H-1B cap cases for Fiscal Year 2018. If during the period of April 3-7, 2017, enough petitions are received to reach the 65,000 statutory H-1B cap and the 20,000 cap for petitions filed under the advanced degree exemption, a lottery will be conducted. As in the past, a random computer selection will first be carried out for those petitions submitted under the 20,000 master’s cap exemption. Any petitions not selected for the master’s cap will then be included in the random selection process for the 65,000 regular cap.

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Starting April 3, 2017, the United States Citizenship and Immigration Services (USCIS) will suspend premium processing for all H-1B petitions for a period of up to 6 months. During this suspension of H-1B premium processing, USCIS will reject any Forms I-907 filed with an H-1B petition. Submission of combined checks for both the Form I-907 and Form I-129 H-1B fees will result in the rejection of both forms. The USCIS will notify the general public when premium processing for H-1B petitions will resume.

The suspension is applicable to any and all H-1B petitions (both the FY18 H-1B regular cap and master’s cap) filed on/after April 3. The temporary suspension of premium processing also applies to cap-exempt petitions.

The USCIS will continue premium processing of Form I-129 H-1B petitions if an associated Form I-907 was filed before April 3, 2017.

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Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

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In a decision issued on April 9, 2015, the Administrative Appeals Office (AAO), which conducts administrative review of certain categories of appeals to denials of immigration benefits, to ensure that immigration law and policy is interpreted accurately and consistently, published a binding ruling in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542. This decision supports the need to file an amended H-1B petition for any material change to the H-1B employee’s worksite location. The AAO declared that a change in the beneficiary’s worksite location to a geographical location not covered by the original Labor Condition Application (LCA) constitutes a material change for purposes of the immigration regulations, requiring a new LCA that reflects these changes. Furthermore, where 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 certified by the Department of Labor (DOL), with both documents indicating the relevant change.

This means that any time an H-1B beneficiary changes his or her worksite location, it is critically important that the employer reviews the previously submitted petition and LCA to ensure that the employee remains in compliance. A new employment location is covered by an existing LCA if it is within the same Metropolitan Statistical Area (“MSA”) or area of intended employment identified on the existing LCA. Because the prevailing wage requirements are tied to the area of employment, if the employee’s new location is out of the geographical location that is covered by the original LCA, this is considered a material change in the terms and conditions of employment that might affect the employee’s eligibility.

In light of this decision, employers should be aware of the possible impact of changes in the terms and conditions of employment, and consult with immigration counsel to determine if any material changes in work locations have occurred since approval of the H-1B petition that may require the filing of a new or amended H-1B petition.

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The Department of Homeland Security’s (DHS) regulatory change will extend employment authorization eligibility to H-4 spouses of certain H-1B workers who have already started the process of seeking employment-based lawful permanent resident status. Applications for employment authorization for eligible H-4 spouses will be accepted beginning May 26, 2015.

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

(a) Have an approved Form I-140, Immigrant Petition for Alien Worker; or (b) Have been granted H-1B status in the U.S. under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B workers seeking lawful permanent residence to work and remain in the U.S. beyond the six-year limit.

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On May 6, 2014, the U.S. Department of Homeland Security (DHS) announced a proposed rule to amend existing regulations to allow H-4 dependent spouses of certain H-1B workers to request employment authorization. Under current regulations, DHS does not extend employment authorization to H-1B dependents.

The new rule provides for requests for employment authorization from H-4 spouses of H-1B workers who:

• Have an approved Form I-140, Immigrant Petition for Alien Worker; or

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This year’s H-1B cap was reached in a mere 5 days, a rate rapid enough to aggravate members of the Silicon Valley tech industry. The speed at which the cap was met indicates the great need for skilled foreign workers, especially software engineers and the like in Silicon Valley. Tech companies well as companies in numerous other industries readily use H-1B visas and are frustrated that the number given out is capped at 85,000 (including the 20,000 reserved for applicants with a U.S. Master’s degree). USCIS has stated that it received a total of 172,500 H-1B petitions this year.

Industry representatives have for years pushed Congress to increase the quota. A bill already passed by the Senate, though waiting on a vote from the House of Representatives, would increase the number of visas to somewhere between 115,000 and 180,000 per year. However, immigration reform has been met with strong resistance by lawmakers, especially in the Republican-controlled House.

Critics of raising the quota believe an increase would undermine the U.S. workforce. They argue that work visas such as the H-1B allow U.S. employers to hire foreign workers and pay them less than what they would pay U.S. workers. Additionally, the tech industry has been further criticized for its support of “stand-alone” legislation, which would increase the H-1B quota without addressing other issues embedded in immigration reform.

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On January 29, 2014, the Administrative Review Board (the “Board”) decided Administrator, Wage and Hour Div. v. Greater Missouri Medical Pro-Care Providers, Inc., in which it addressed two issues related to the scope of an H-1B investigation by the DOL Wage and Hour Administrator (ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014)). The Board upheld the ALJ’s finding that the Administrator has authority on the basis of a single aggrieved party complaint to investigate potential INA violations of H-1B workers of the same employer who have not filed an H-1B complaint. However, Board reversed the ALJ’s finding that the INA allows the Administrator to investigate H-1B violations that occurred more than twelve months prior to the filing of the compliant that serves as the basis of the investigation.

Investigation of employees not party to the complaint

The Board held that the Administrator can conduct an investigation of all H-1B employees based on a single aggrieved party complaint against the employer. Alena Gay Arat, an H-1B employee of Greater Missouri Medical Pro-Care Providers filed a single aggrieved party complaint alleging that Greater Missouri had (1) failed to pay her the wages required under her LCA, (2) illegally made deductions from her wages, and (3) required her to pay an illegal penalty for ceasing employment prior to the previously agreed upon date.

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