H-1B Visa Season Begins April 1, 2015 – Prepare Now!!

It’s that time of year again!  The fiscal year starts October 1 and USCIS starts to accept H1B visa filings on April 1.  Please contact us and discuss if you are eligible and to prepare the process immediately to ensure your case is ready to be filed on April 1.

Plan Ahead!  Last year, USCIS received 172,500 petitions within the first week.

Limited Visas: The number of H-1B visas issued per year is limited to 65,000 and 20,000 for those with U.S. graduate degrees. Out of the 65,000, 6,800 visas are set aside for Singapore and Chile nationals. There is no quota for universities, non-profit and government research laboratories.  Due to limited visas employers should immediately begin to identify individuals who need H1B sponsorship.

Plan Ahead! LCA certifications are currently taking at least 7 days. 

Labor Condition Application (LCA):  Prior to filing the H1B visa petition with USCIS, the employer must file the LCA with the DOL for certification. Employers affirm in the LCA that the wage offered to the applicant is at least as high as that paid by the employer is equal to or exceeds the prevailing wage for the job in the same geographical area, the working conditions will not adversely affect those workers similarly employed, that there is no strike or lockout at the employer’s premises, and that the LCA has been given notice to current employees.

Specialty Occupation: The H1B is a non-immigrant visa category allowing U.S. employers to seek temporary employment from skilled foreigners who have the equivalent U.S. Bachelor’s Degree education and who will be temporarily employed in a “specialty occupation”.  A specialty occupation is one that requires the use of specialized knowledge and a minimum of a bachelor’s degree or its equivalent.

Right to Control: The employer must clearly show that an employer-employee relationship exist between the employer and employee, and establish that the employer has the right to control the employee’s work, including the ability to hire, fire and supervise the employee. 

Duration of H1B Visa:  The H1B visa is valid for a maximum of six years, in three year intervals.  After that time the employee must remain outside the U.S. for one year before he qualifies for another H1B visa unless (1) 365 days or more have passed since the filing of any labor application or filing an I-140 immigrant petition or (2) he is working on Defense Department projects who may remain in H-1B status for 10 years.

No Multiple H1B Filings for Same Employer: Employer may not file more than one petition for each employee during the fiscal year.  This also applies from filing multiple petitions for different jobs for the same employer.  Related employers (ie parent, subsidiary, affiliates) from filing petitions for the same employee by demonstrating a legitimate business need to do so.

Salary and Benching:  Employers are liable for both nonproductive and productive time one the employee becomes eligible for work. Employers who do not pay non-terminated H1B employees may face civil penalties.  Regulations require employers to pay the LCA wage when the employee makes himself available for work but not later than 30 days after the employee’s entry into the US or 60 days from the date USCIS grants a change of status. Liability for the employer starts once the employee enters into employment with the employer.

Cap Gap Provision: An F1 student whose status expires after the filing of an H1B petition requesting a change of status effective October 1, but before the requested start date, receives an automatic extension of his/her F-1 status and OPT employment authorization through the entire cap gap period. This extension is valid until September 30, if the H1B petition is accepted and approved. 

Filing Fees: H1B filing fee can range from $825.00 to $5,550 depending on the size and type of the employer: $325 base filing fee; $500 Fraud Prevention and Detection Fee; $750 ACWIA filing fee if it employs 25 or fewer fulltime employees or $1500 if it employs more than 25 fulltime employees; $2000 fee if it employs more than 50 employees and more than half are H1/L1 employees (Public Law 111-230).

Public Access File:  Employer must maintain a PAF file must be available at the employer’s principal place of business or worksite which includes a copy of the LCA, documentation of the wage rate to be paid, how the wage was determined, copy of notice of LCA, summary of benefits offered to US workers in the same occupation.

Please contact our office immediately to discuss your case. Contact us today at 800-993-9097 or rl@ramileelaw.com.