H-1B: WORKING VISAS FAQs

Applying for the H-1B Visa is a complex process that both employers and employees have to navigate with utmost care so that the application is not given an RFE or denied, which can be costly and time consuming. Applicants need to be mindful of certain pitfalls that are littered throughout the application process. The following are some of the most common questions that are asked at the offices of Keshab Raj Seadie P.C. on a daily basis and we have compiled some of the most prominent ones here to make it easier to navigate these questions:.

The H-1B cap means every year there is a limited number of H-1B visas available to foreign workers looking to come to the US. Currently the cap count is set at 65,000 new visas.  However, applicants need to be aware that there are 6,800 visas that are set aside for Singapore and Chile Free Trade Agreement filings. Also, there are 20,000 additional visas set aside for individuals who have earned a Master’s or higher degrees from U.S. based higher education institutions. Therefore, there are only 58,200 new visa available each year plus 20,000 for those who have attained higher education.

Every year U.S. Immigration Law grants 65,000 visas for Regular Caps. Chile and Singapore Free Trade Agreement Cap is granted 6,800 visas which are included in the Regular Caps. Apart from this, unused Regular Caps from the previous fiscal year are added to the current fiscal year. To calculate the cap amount, one may use this equation: Current Fiscal Year (65,000) &- Chile and Singapore Free Trade Agreement Cap (6,800) + Unused H-1B Caps from previous Fiscal Year(X) + Petitions that were Denied, Rejected or Withdrawn(X) = Annual Cap for Current Fiscal Year

Due to the low number of H-1B visas available each year, a visa applicant needs to be mindful of the following:

  • USCIS starts accepting 2015 H-1B Visa Petitions on April 1st, 2014.
  • The USCIS fiscal year starts on October 1st and ends September 30th. Accordingly, fiscal year for 2015 would start on October 1st, 2014 and end on September 30th, 2015.
  • Though there is no deadline as to when the H1Bs should be submitted by, once the H1B Cap is reached, USCIS will stop accepting cases for FY 2015. So in the case of FY 2014, H-1B cap was reached within the first 5days of the new filing season meaning the USCIS stopped accepting applications within the first week.
  • When a Cap is reached within the first 5 days of the new filing season, all petitions may be subject to a computerized random selection. They will first conduct a selection on the Masters Degree Cap. Masters Degree cases that were not selected will then be put through another random selection with the Regular Cap.
  • In case that the Cap was reached after the first 5 day period and they received adequate amount of petitions, then no Lottery will be conducted. If they receive more than the sufficient amount of petitions, a lottery will be conducted.
  • If in any circumstance the Advance Degree Cap is reached and Regular Cap is still available, all eligible petitions will be counted in with Regular Cap.
  • An individual carrying a U.S. Master’s degree or higher will qualify for Advanced Degree Cap. An individual carrying a U.S. Associates or Bachelor’s or Master’s degree of higher outside of U.S. does not qualify for this cap.
  • The petitions counted per fiscal year only include the petitions that were submitted to USCIS prior to final receipt date and which are either pending or already approved. Petitions that were denied, rejected or withdrawn with not be included in the Cap Count
  • Once the H-1B Cap is reached, there are no chances of you to get the H-1B Visa till the next fiscal year. However, you may be eligible for other working visas depending on your current condition. You should consult an immigration attorney experienced in the field to shed light on the matter.
  • Candidates who are not currently on an H-1B Status are subject to H-1B Cap/Quota. These candidates cannot start work until or after the start of a new fiscal year which is October 1st. In order for a candidate to start work in the new fiscal year, the employer must file an H-1B Petition starting from April 1st. There are yet chances that the candidate may not start work if the H1-B Cap is reached and the candidate’s petition was not selected. In this case, the employer must file a new H-1B Petition for the new fiscal year.
  • Once the Cap is reached there are no chances of it to be opened again. Only a fix number of Caps are granted per fiscal year and it is not subject to change.

Unfortunately, there is no guaranteed process to avoid the H-1B Cap for new applications. However, there are few precautions that you may take to minimize this possibility. First, you must complete and submit the H-1B Petition at your earliest convenience. USCIS does not accept any petitioner six months prior to the start of new fiscal year. Since the fiscal year starts on October 1st, you must submit the petition to USCIS on April 1st. This reduces the risk of not being selected prior to H1B Cap has reached. Along with submitting the petition on time, you must make certain that you submit all valid documents along with processing fees. An incomplete file will be sent back to the employer. Another option you may consider is to try to obtain some other nonimmigrant visa. You must consider an experienced immigration attorney in such critical situations.

Unless you have completed your course of study you may not apply for Master’s Cap prior to graduating. This applies to those students who may be eligible for graduation during the fall, winter semester but need to wait until the spring semesters to receive their diplomas. Once you have completed the credit course load and can be considered to hold a Master’s you may apply for the Master’s cap instead of the regular cap. However, if you need to complete classes past April 1st, you will only qualify for the regular cap unless you apply for a cap exempt position.

When applying for Master’s cap without your diploma, it is advisable to speak with your registrar’s office in order to request a notice of matriculation stating that you have completed your course load and only need to wait for your diploma. This way your application will not be denied based on the fact that you do not have your diploma. You will need to submit a copy of your diploma at your earliest convenience.

Only new H-1B Status Petitions filed for employers in the U.S. and abroad are counted in the H-1B Cap. All change of status petitions such as from F-1 to H-1, H-4 to H-1, TN Workers to H-1 are counted in H-1B Cap. However, if you are filing for a H-1B change of employer, renewal, extension are not counted towards the current fiscal year cap.

  • The H-1B Cap is not subject to any employees currently in H-1B Visa Status. Your Employer can file an H-1B Renewal/Extension Petition to extend your stay without being limited in the H-1B Cap/Quota.
  • The H-1B Cap is not subject to any petitions requesting a change of employer provided that they are currently in a valid H-1B Visa Status. Change of Employer or change in any terms of employment will not be affected by the H-1B Cap.
  • H-1B Petitions requesting Change of Employer, Renewal/Extension and Amending Petitions are not counted in this category. H-1B Petitions filed by exempt employers such as colleges, universities, selected nonprofit organizations and government research organizations are not subject to the H-1B Cap. These H-1B Petitions can be filed any time of the year and are not limited to H-1B Cap being reached.

One other key item of note is that H1B Petitions filed by universities, university affiliated nonprofit entities, and nonprofit or government research organizations are not subject to H-1B Cap/Quota. If an employee accepts an offer from any of these exempt employees, he or she may be able to start work prior to start of the fiscal year, which is October 1st. If the employee chooses to work for a private employer, he or she will then be subject to the H-1B Cap and would have to wait to start work on October 1st provided that the employee was selected in the H-1B Cap.

Every consular office and every consular officer is different, they all have different caseloads and processing times, therefore the wait can be longer or shorter dependent on many factors. How complete your application is, and whether evidentiary documents are missing could also delay your application. The only way to expedite the process is to ask your employer to pay for premium processing.

Premium Processing Service is an optional service that your petitioner (the employer) may apply for depending on the complexity of the case and the petitioner’s needs. Beneficiaries cannot file for Premium service. If an employer decides to file this way, a premium processing fee of $1,225 must be enclosed along with the application Forms. Premium processing service does NOT guarantee that your application will be approved; it only guarantees a decision within 15 days from receipt date of the processing fee. This means that depends on the case, you will either receive an approval notice, denial notice, Request for Evidence Notice, Notice of Intent to Deny or Notice of investigation for fraud or misrepresentation within 15 days. If under any circumstances, USCIS failed to render a decision within the 15 days limit, they will refund the full Premium Service fee.

Other then the premium processing service, USCIS will only expedite a process if the case falls under any of the following situations: Extreme Emergency, Severe financial loss to a company or individual, USCIS error, Department of Defense or national interest situation, Humanitarian Situation.

H1B visa is a category of nonimmigrant worker visa designed to allow foreign citizens to work in the US temporarily in specialty occupations. These visas are available for skilled workers who hold a relevant four-year college degree (either a Bachelor’s degree from a US institution or the equivalent from a foreign institution) or who have equivalent work experience. Fashion models of distinguished merit are also eligible for H1B visa.

According to the Foreign Affairs Manual, this is what Consular Officers are looking for when they interview prospective H-1B applicants:

  • The prospective employer must have already filed a labor condition application (LCA) with the Department of Labor (DOL) prior to the H-1B application.
  • The filing of a labor condition application does not constitute that the occupation in question is a specialty occupation.
  • DHS is responsible for determining whether the application involves a specialty occupation and whether the applicant for whom H-1B status is sought qualifies to perform services in that occupation.
  • A specialty occupation requires that the employee has attained a bachelor’s or higher degree in the specific specialty (or its equivalent) for entry into the occupation.
  • A worker seeking a position in a specialty occupation must have completed such a degree or have experience in the specialty equivalent to the completion of the degree and have expertise in the specialty through progressively responsible positions relating to the specialty.
  • Evidence of employment/job training that the beneficiary met the certification’s minimum employment and job training requirements, if any are prescribed, as of the date of the filing of the labor certification application.
  • Evidence of education and other training with evidence that the beneficiary met all of the certification’s post-secondary education and other formal training requirements
  • A nonimmigrant must be coming to fill a position that is temporary in nature.

An LCA stands for a Labor Condition Application. An employer must submit a LCA to the U.S. Department of Labor in order to receive an H-1B Approval. USCIS will not approve an H-1B Petition if an LCA is not approved by the U.S. Department of Labor.

If you are filing a new H-1B application that is subject to the H-1B cap, you may not begin work when the application is filed. You must wait for your application to be approved. Once the H1B Petition is approved, you can start work according to the Employment Period given on the H1B Approval Notice. For FY 2014, Employment period must be after October 1ST, 2013. If your petition was filed from overseas, you are required to get H1B Visa stamping in order to enter U.S. on H1B Visa. If your petition was filed as a change of status, then you are not required to travel back for visa stamping.

If you are currently working in a valid H-1B status and a prospective company files a valid H-1B transfer, you may start work with a new employer legally as soon as USCIS receives the H-1B petition from your new company. Once the new H-1B petition is approved as change of employer and your I-94 card updated on the approval notice, you may keep working for the new employer until the expiration date on the I-94. However, if your application is approved without I-94 you will need to stop working immediately, leave the US to apply for H-1B visa in the home country and be readmitted into H-1B status to continue legally working.

If you are currently an F-1 student working with a OPT permit, an L-1 transferee, or other temporary employment visa, you may not begin working with your H-1B employer until after your application has been approved. If your status has not been terminated with USCIS, then you may continue to work at your current company until the H-1B visa is approved. Otherwise, you may be required to leave the country and be readmitted.

The answer is both yes and no. As long as an applicant can meet the minimum requirements for H-1B, and the company you intend to work for is willing to petition for you, then, you can apply for H-1B. However, it is important to keep in mind that if your H-1B application was not filed in a timely manner then you may not continue to work until your H-1B petition has been approved. At the expiration of your OPT or F-1 academic program you must stop working, unless your H-1B has been approved. F-1 visa holders who are filing for H-1B for the first time need to keep in mind that they are not exempt from the H-1B cap unless they are petitioning with a University or a Non-profit cap exempt organization. It is very important that F-1 students need to time their applications very carefully.

If the H-1B petition filed for change for status is within the 60 day grace period given post OPT, then you can remain in the US in legal status for the period between the completion of OPT and the beginning of your H-1B eligibility. However, you will not legally be able to work in that time frame until your H-1B has been approved. Should you not be able to file a H-1B cap case prior to the end of your F-1 Status and your grace period has expired, you must maintain status by enrolling in another program or depart the US if another option can’t be found. It is very important to contact a knowledgeable attorney to discuss the particulars of each individual case. There may be other options available you are not aware of.

H-1B visas are employer specific visas; therefore, an H-1B visa transfer will be processed as if it were a new H-1B application. So the time frame that is expected to transfer an application should be about the same as that of a new application. The only difference between processing a new application and that of a transfer lie in the fact that a transfer application is not subject to the H-1B cap. You have already been counted in the cap and will not need to be counted again. It is important to keep in mind that every Consular Officer is different, depending on his/her caseload your application can take a different amount of time. If you are in a hurry to receive your H-1B approval, you may pay the premium processing fee to have your application expedited and you will receive notice within 15 business days.

Yes and no. Because H-1B petitions are employer specific, every H-1B petition, whether it is a change of status, or change of employer is processed as a new petition. However, because you have not left the country for a period of one year, you would be eligible to apply for a change of status and forgo the H-1B cap. This limits you to the remaining time left on your previous H-1B application. Otherwise you may leave the country for a period of 1 year and reenter to start the 6 year clock again.

The H1B transfer bill enables valid H1B visa holders to change employers upon the filing of a new petition as long as the individual is in lawful status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission. There is no need for a new H-1B stamp, your visa will be transferred automatically.

Here are some key points of knowledge for H-1B transfers:

  • First and foremost, please know what you cannot submit an H-1B Transfer. Since an H-1B is a petition, your employer must be the one to submit it. Here are the documents critical for the approval of H-1B Transfer:
  • Copy of educational documents including degrees and transcripts (which make sure to obtain translation documents are in foreign language
  • Copy of educational evaluation (if your college degree was obtained out of the U.S.)
  • Copy of all existing immigration work such as H-1B Petitions, Forms, LCAs, Supporting letter etc.
  • Form I-485 & I-140 (if applied)
  • Copy of three recent paystubs
  • There is no deadline as to when you can start your new employment. It is solely up to you. For your safety, please start the new employment prior to expiration or termination of the previous employment.
  • H-1B transfer petitions are not subject to H-1B Cap. However, if you are transferring from a H-1B from a Non-Profit Organization to a H-1B Cap Company, you will be subject to the Cap.
  • It is not required for you to tell your current employer about your transfer and there is no way to find out.
  • You can transfer as many times as you want. Do bear in mind that you are still subject to the 6 year H Limit. You will be required to leave the U.S. after complete 6 years on any H status.
  • The processing time for an H-1B transfer varies on the petition filed. If all the required documents are submitted in the correct format, it usually takes 4 -8 weeks. You may check the USCIS Website as the processing times depend upon the location of the employment and the work load at the USCIS service center where the file was submitted.

For a successful H-1B Visa Transfer, please make sure you have followed all instructions and provide on the documents that are required. Delay in submitting the requirement documents can cause denial in one’s H-1B Petition. Please seek an experienced immigration lawyer for counsel to submit an H-1B Transfer.

Yes, you may stay with Company A even after the approval of Company B as long as Company A has not revoked your H-1B application with USCIS. You may have multiple H-1B visas but you may only work for one company at a time. This is why we tend to advise H-1B applicants not to leave their previous jobs prior to having their transfer applications approved. If you later decide not to leave a position, but the employer has terminated your H-1B with USCIS, then you will have to depart the U.S or maintain your status by changing it to either H-4 or otherwise.

H-4 is a nonimmigrant visa that permits dependents of an H-1B Visa Holder to enter into the U.S. With such visa, the spouse and children are considered dependents and can travel to the U.S. and stay with the H-1B Visa holder as long as he/she is in valid status and is legally working for the sponsoring company.

The H-4 Visa provides that:

  • Dependents of an H-1B Visa holder are considered either spouse or unmarried children under the age of 21 yrs to be qualified for H-4.
  • An H-4 visa holder is allowed to enter the U.S. along with or after the spouse or parent holding the H-1B Visa.
  • A dependent can stay in the U.S. as long as the principal H-1B Visa holder is in status. If the H-1 of the principal immigrants expires or if the principal is laid-off or terminated from the employment, he or she loses the H-1 visa status and so does the dependent.
  • This is a nonimmigrant visa and cannot be used as permanent stay in the U.S.
  • H-4 permits travel in and out of U.S. as long as the visa is valid.
  • An H-4 Visa holder is not permitted to work in the U.S.
  • H-4 visa holder is permitted to attend school in the U.S. provided that he or she is in valid status.

Under no circumstances are H-4 dependents allowed to work for pay. However, H-4 dependants are allowed to work if there is no compensation. For example if your wife is offered an internship with no compensation other than credit, she may be allowed to take then position. Another example may be if your wife is volunteering at a local shelter, or library.

If your wife is offered a job that is willing to sponsor her for an H-1B visa, then she would be able to transfer her H-4 status to that of H-1B when her sponsor company files the appropriate paperwork with the USCIS.

When an immigrant worker is on an H-1B Visa, there are few guidelines he/she must follow when it comes to entering and departing the U.S. Violating these guidelines may put an H-1B worker at risk of losing his/her valid status.

If you are applying for H-1B Petition as change of status, traveling outside the U.S. will automatically discard your request to change to H-1B status. If this petition is later approved by USCIS, you will then be required to apply for an H-1B Visa at the U.S. Consulate prior to entering into the U.S. with H-1B status. It is not advisable to travel out of U.S. while an H-1B Transfer is pending.

If you are applying for an H-1B Extension, you may travel outside the U.S. without the need to apply for an H-1B Visa. However, you must notify the USCIS to mail you the new Form I-797, Notice of Approval overseas. It is required that you use the latest approval notice will entering the U.S. so that the I-94 issued also can be extended.

If you are applying for an H-1B Transfer, you are permitted to travel outside the U.S. provided that you have a valid passport and H-1B Visa along with Form I-797, Approval Notice of H-1B. If your H-1B visa expires prior to your entry in U.S., you will be forced to stay abroad until your new visa is approved.

You must not travel during the 240 day automatic extension of work authorization after the current H-1B period has expired. Travelling during this time will require you to stay abroad until the extension is approved and apply for a new visa to be readmitted into the U.S. in H-1B status.

During a the H-1B renewal time frame traveling is dependent on processing time. Processing time depends of where in U.S. you are located and where was the H-1B Petition filed. You can check the processing times on the USCIS website according to where the petition was submitted. You can travel the process is pending, however, it is advisable that you take few precautions prior to leaving the U.S. If you don’t show the latest Approval Notice at the date of re-entry, an I-94 will be issued with the previous expiry date. Hence, you must notify USCIS to have the new Approval Notice mailed sent to you overseas.

These are just recommended guidelines for traveling with an H-1B visa that is pending, or in the process of being transferred. It is most advisable to speak with an attorney regarding each individual case because no one case is the same and with more information, an attorney may better assist any individual based on their needs.


H-1B AUDITS FAQs

An H-1B Audit is conducted by the Wage and Hour Division of the US Department of Labor (DOL) or United States Citizenship and Immigration Services (USCIS) to determine if an H-1B employer is in compliance with the existing H-1B laws and regulations. The Labor or H-1B Audit could be the result of multiple causes including but not limited to Employee Complaint, US Embassy Referral, or Random Audit. As a part of this Audit, the DOL or USCIS would send a letter requesting the employer to produce the public access file along with the immigration and wage records.

Preparing the supporting documentation for the Labor Condition Application (LCA) is the core of the employer’s responsibility. The employer must be careful to meet the DOL requirements for the content of that documentation and for its retention and availability. The DOL recognizes two types of supporting documentation: (1) documentation which must be made available in a public inspection file within one working day after the date of filing the LCA with the DOL, and (2) documentation which must be made available to DOL investigators “upon request.” It is important for employers to distinguish between the two types of documentation, and put into the public inspection file only the documentation required by regulation to be there.

The Labor or H-1B Audit could be the result of multiple causes including but not limited to Employee Complaint, US Embassy Referral, or Random Audit. Approximately 80% of H-1B Audits arise due to employee complaint. Common employee complaints include benching and back wage issues, and the breach of one-year employment contracts. US Embassy and Consulate Referrals contribute to approximately 15% of audit initiatives. These referrals are often the result of suspicion of fraudulent degrees and work experience, fraudulent in-house IT projects, fraudulent letters from End Client Site and W-2s demonstrating wage paid is less than the H-1B required wage. Approximately 10% of H-1B Audits are the result of random selection.

An H-1B Audit may be initiated by the Department of Labor (DOL) or by the United States Citizenship and Immigration Services (USCIS). If the audit is initiated by the DOL, an Investigator from the Wage and Hour Division will be assigned to lead the audit. The Fraud Prevention Unit of USCIS may also audit an Employer suspected of violating H-1B program mandates, or other immigration matters.

The US Department of Labor (DOL) Wage and Hour Division and/or USCIS Fraud Prevention Unit will evaluate all aspects of H-1B program compliance. Employers have been penalized for an array of violations including, but not limited to:

  • Employer failed to pay benching wages to its H-1B employees;
  • Employer failed to obtain amended LCA for the new job site;
  • Employer failed to pay wages of the specific job site;
  • Employer supplied incorrect or false information on the Labor Certification Application (LCA);
  • Employer failed to comply with “nostrike/lockout” requirement by:Employer failed to provide employees or their collective bargaining representative, either by hard copy posting or electronically, notice of its intentions to hire H-1B worker(s), or has failed to provide H-1B worker(s) with a copy of the LCA;
    • Placing or contracting out H-1B worker(s) during the validity period of the LCA to any place of employment where there is a labor dispute;
    • failing to notify the DOL, within 3 working days of the occurrence, of such a labor dispute; or
    • using an SCA for H-1B worker(s) to work at a site before the DOL has determined that a labor dispute has ended.
  • Employer failed to maintain and make available for public examination the SCA and necessary documents at the employer’s principal place of business or worksite;
  • Employer laid off US worker(s) and has replaced or seeks to replace US worker(s) with H-1B worker(s) within 90 days before or after filing H-1B visa petitions;
  • Employer placed H-1B worker(s) at another employer’s worksite where US workers have been laid off, and/or has failed to inquire of the second employer whether it has or intends to lay-off US worker(s) and replace them with H-1B worker(s);
  • Employer failed to recruit US worker(s) for jobs for which H-1B worker(s) are sought; and/or
  • Employer failed to hire a US worker who applied and was equally or better qualified for the job for which the H-1B worker was sought.

Labor Certification Application (LCA) and H-1B program violations can lead to the payment of back wages, civil money penalties with maximums ranging from $1,000 to $35,000 per violation, and debarment from participating in the H-1B program and other immigrant programs.

In determining the amount of civil money penalty to be assessed, the Administrator shall consider the type of violation committed and other relevant factors. The factors which may be considered include, but are not limited to:

  • Previous history of violation, or violations by the employer;
  • The number of workers affected by the violation or violations;
  • The gravity of the violation or violations;
  • Efforts made by the violator in good faith to comply with program provisions;
  • The violator’s explanation of the violation or violations;
  • The violator’s commitment to future compliance; and
  • The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss, potential injury of adverse effect with respect to the other parties.

The Immigration and Nationality Act (INA) sets forth certain prerequisites for employers wishing to employ H-1B nonimmigrant workers. To obtain H-1B status approval, the employer must first file a Labor Condition Application (LCA) with the Department of Labor. LCA requirements include the employer’s attestation to pay the H-1B worker the higher of the prevailing or actual wage, offer benefits on the same basis as US workers, not employ an H-1B worker where a strike or lockout is occurring, etc. H-1B dependent employers face additional obligations addressing non-displacement and recruitment of US workers.

The INA allows employment of alien workers in certain specialty occupations, generally those requiring a bachelor’s degree or its equivalent. Alien workers such as engineers, teachers, computer programmers, medical doctors, and physical therapists may be employed under the H-1B visa classification, as may fashion models of distinguished merit and ability. H-1B visas are capped at 65,000 during a fiscal year, subject to certain exceptions.

Under the Labor Condition Application (LCA) filed with the Department of Labor, all H-1B employers must attest to:

  • Pay the nonimmigrant workers at least the local prevailing wage or the employer’s actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for US workers;
  • Provide working conditions for H-1B workers that will not adversely affect the working conditions of workers similarly employed;
  • Not employ an H-1B worker at a location where a strike or lockout in the occupational classification is occurring, and notify the Employment and Training Administration (ETA) of any future strike or lockout; and
  • On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer’s intent to hire H-1B worker(s). The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.

Additional rules apply to H-1B-dependent employers and willful violators of the H-1B rules. These rules sunset for H-1B employment under LCAs filed after September 30, 2003 but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004.

An H-1B-dependent employer is, roughly, one whose H-1B workers comprise 15% or more of the employer’s total workforce; different thresholds apply to smaller employers. H-1B-dependent employers who wish to hire only H-1B workers who are paid at least $60,000 per year or have a master’s degree or higher in a specialty related to the employment can be exempted from these additional rules.

H-1B-dependent employers and “willful violator” employers must attest to the following three elements addressing non-displacement and recruitment of US workers:

  • The employer will not displace any similarly employed US worker within 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;
  • The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker; and
  • The employer, before applying for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit US workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any US worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a “priority worker” (defined as a person with extraordinary ability, or outstanding professors or researchers, or certain multi-national executives or managers) within the meaning of Section 203(b)(1)(A), (B), or (C) of the INA.

After the Department of Labor certifies the LCA, the employer will apply to the US Citizenship and Immigration Services (USCIS) for approval to employ an alien worker under H-1B status so that alien workers may be hired.

Compliance under the Labor Condition Application (LCA) requires that certain documents be made available upon request, by any interested party, within one working day. The Public Access File, also known as the Public Inspection File, must include the following elements:

  • A copy of the completed LCA. If the LCA is submitted by facsimile transmission, the original signed version must be maintained by the employer but it need not be included in the public access file. Once the LCA is returned with the DOL certification, the employer may want to replace the copy already in the file with a copy of the certified version of the LCA.
  • A statement of the wage rate to be paid to the H-1B worker or workers admitted under the LCA. The LCA may include the initial wage rate to be paid the H-1B worker, and is sufficient initial documentation of the wage rate in that case. If the LCA contains a wage range, however, in the case of a single H-1B non-immigrant or in cases involving multiple H-1B non-immigrants included on the same LCA, the employer should include a separate statement listing the specific wage rate to be paid to each H-1B non-immigrant admitted under the LCA. In addition, the wage rate information must be current for every H-1B non-immigrant admitted under an LCA.
  • An “actual wage” pay system memorandum. The DOL rules require that the public inspection file contain a “full, clear explanation of the system” that the employer used to set the “actual wage” paid to workers in the occupation for which the LCA is filed. The explanation must be in the form of a “memorandum summarizing the system or a copy of the employer’s pay system or scale.”

Actual wage is the wage paid by the employer to all individuals with similar experience and qualifications for the specific employment in question. In evaluating “similar experience and qualifications” many factors such as experience, qualifications and education, etc., may be taken into account.

Important Note: DOL Enforcement Policy. Experience with DOL enforcement efforts shows that the DOL expects detailed information, and that without ample justification of discrepancies between experience and education levels and wage rates, it will suspect the worst of the employer’s intentions. Particularly if the H-1B worker’s wage rate within the pool places him or her beneath any of the U.S. workers, a thorough explanation of the factors leading to that wage rate is imperative. An employer should remember that the more it does by way of analysis at the pre-filing stage, and documents that analysis for the LCA file, the less likely it will be that the DOL will find evidence of willfulness in a failure to meet the wage attestation

  • A copy of prevailing wage documentation. The DOL rules require the public inspection file to contain a copy of the documentation used to establish the prevailing wage. The rules elaborate that “a general description of the source and methodology is all that is required to be made available for public examination.” In particular, the “underlying individual wage data” used to determine the prevailing wage rate need not be included in the public inspection file, but must be available to DOL investigators in an enforcement action.
What the employer includes in the public inspection file depends on the source for its prevailing wage determination. If the employer relies on a State Employment Security Agency (SESA) determination, a copy of the determination should be included. If the employer uses an “independent authoritative source” or a “legitimate source of information,” it may want to include copies of the title page of the survey and the extract from the survey containing the prevailing wage. The employer should prepare an explanatory memorandum to go with the survey to explain its choice of occupational classification within the survey. Choice of occupational classification becomes a major issue when the job titles of the employer and survey differ and it appears that the employer has classified the job at a lower pay level. Information concerning the methodology used should be included in the explanatory memorandum as well as a statement concerning the lack of workers in the area of intended employment necessitating the expansion of the area surveyed if applicable.
  • Documentation regarding offer of benefits to H-1B workers. The public access file must include a summary of the benefits offered to US workers in the same occupation as the H-1B workers. A statement explaining how employees are differentiated for benefit purposes when not all employees are offered or receive the same benefits must also be included in the file. Finally, the file must include note memorializing any workers left on “home country” benefits, if applicable.
  • A copy of the notification documents. The public inspection file must also include documentation that the employer has met the requirement that it provide notice of the LCA filing to the relevant bargaining representative, or to its own employees in cases in which there is no bargaining representative for the occupational classification at the place of employment.

In a case involving a bargaining representative, the file must include a copy of the dated notice given to the bargaining representative, which must include the information specified in 20 C.F.R. §655.734(b)(1)(i). The file must also include the name and address of the bargaining representative to whom the notice was provided.

In a case without a bargaining representative, the file must include a copy of the actual notice physically posted in two locations at each place of employment listed on the LCA or posted electronically, e.g., through the firm’s intranet or e-mail system. The notice must include the information specified in 20 C.F.R. §655.734(b)(1)(ii). The file must also include the dates when each notice was posted, the locations where each notice was posted, and the physical place within the location where each notice was posted.

The employer’s notice may be an exact copy of the LCA, or its may be a statement including the information listed in the regulatory sections cited above.

  • Sworn statement regarding assumption of LCA obligations in corporate restructuring situations. When the employer undergoes a change in corporate structure and chooses to assume the LCA obligations of the previous employer, include the following in the public access file: (a) a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity; (b) the employer identification number (EIN) of the new entity; (c) a list of each affected LCA and its date of certification; and (d) a description of the actual wage system of the new employing entity. The H-1B worker must remain in the same location and continue to perform the same job duties if he or she is to remain on the old LCA. Remember that the old LCAs cannot be used to support petitions or extensions filed by the new entity even when it agrees to assume the obligations under those filings. As a result, the entity will need to file a new LCA in order to file new petitions or extensions on behalf of H-1B workers.
  • List of entities comprising “single employer” when employer uses definition of “single employer” to determine H-1B-dependency. When the employer utilized the definition of “single employer” to determine its H-1B-dependency status, the employer must prepare a list of any entities included as part of the single employer in making the determination. Under ACWIA, an employer may then use the definition of “single employer” in the Internal Revenue Code (IRC) to make a calculation of its H-1B-dependency taking into account the number of workers employed by related business entities in the United States. ACWIA provides that any group treated as a single employer under Internal Revenue Code § 414(b), (c), (m), or (o) is to be treated as a single employer for purposes of determining H-1B-dependency
  • List of “exempt” H-1B employees when LCA will be used to support only “exempt” employees. When the employer is an H-1B-dependent employer or a willful violator, and indicates on the LCA(s) that only “exempt” H-1B nonimmigrants will be employed, a list of such “exempt” H-1B workers must be included in the public access file. If an LCA claiming exempt status for its employees is used to support a petition or extension of status for a non-exempt employee, the employer will be found to have violated the non-displacement and recruitment requirements.
  • Summary of recruitment methods when employer is subject to recruitment attestation. If the employer is H-1B-dependent or a willful violator and the LCA will be used to support petitions for non-exempt employees, a summary of methods used to recruit US workers and the time frames of such recruitment must be prepared. Such information may consist of either a memorandum by the employer or copies of pertinent documents. This documentation must relate to the period prior to the filing of the LCA. In addition, each time the employer files a petition or extension supported by the LCA, the employer will need to update the file to include information regarding its recruitment prior to the filing of the petition or extension.

The US Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program.


H-1B AMENDED PETITIONS FAQs

H-1B employers usually take the route to an amended petition when a filed or approved petition has made a significant change related to the beneficiary’s salary, job duties, job location, etc. Filing an amended petition helps an H-1B employer save cost and time by making changes to an H-1B petition that has already been filed previously.

When certain changes are made on an H-1B Petition, under law, the employer is obligated to inform USCIS. The employer must file an H-1B Amended Petition under the following circumstances:

  • If the job description of the employee has significant changes
  • When there is a change in the location of the employment
  • When there is a change in the work hours of the employment
  • When there is a drastic change in the salary of the employee
  • When the employee is to work for an additional client or is not working with a client anymore

Please be advised that the employer will need to submit an addition Labor Certification Application in case of any of the changes mentioned above. Please consult with an experienced attorney prior to making any changes in the employment as this can be very critical to the employee’s H-1B status.

Generally yes, however minor changes as the ones mentioned below do not need to be addressed to USCIS.

  • Change in job title without major changes in the job duties
  • Minor changes in the job description that do not affect the basic requirements of the duties performed by the employer.
  • An advancement in the same position where same amount of qualification is required as stated on the original H-1B petition.
  • A minor change in salary that does not affect the job duties of the employee
  • New client location during which submission of an LCA is not required
  • If the company has merged or now supervised by another employer and terms and conditions of the employment have not changed

All major changes in an H-1B employment must be informed to USCIS. If you do not inform the USCIS, you will face serious consequences such as NOIR or denial of any extension you may file in the future. Please do not take this lightly and consult a reputable immigration attorney on this matter.

USCIS can most certainly find out about changes made to an employment. For instance, USCIS does perform site visits without notification to confirm that the H-1B is genuine. If the employer has changed the location on the employee has a USCIS officer cannot find the employee at the site stated on the LCA, the officer may issue a revocation of the petition. When filing for an H-1B transfer or extension, employer is required to submit documents supporting the previous H-1B petition. During inspection, USCIS can easily trace any drastic changes made during the LCA. (Ex. Salary of the employer can be verified from the paystubs.) As you can see, it is very easy for USCIS to track any changes in the employment terms, for this reason, please be certain that any changes made are reported to USCIS via H-1B amendment.

Along with the LCA, you must submit an H-1B Amendment in case USCIS issues a site visit for the employer.

The fees for an H-1B Amendment are the same as a new H-1B petition—$1500 + $750(if the employer has less than 25 full time employees.) However, the employer does not need to pay the $500 fraud fee as there is no change in employers. Please check the USCIS Website for the filing fees as they are subject to change.

No. Since the terms and conditions of the employed have not changed, you are not required to file for H-1B extension.

Since your employer is changing the client and your location, you must file an H-1B Petition. However, your employer cannot make changes to the dates of employment. If by any chance your employer wants to extend your employment, he must file for an H-1B extension with new client details.

As long as the terms and conditions of the employment have not changed, you need not file an H-1B Amendment.


H-1B CAPS FAQs

Under U.S. Immigration Law, there is a limit to how many visas can be granted in a given fiscal year and is called the H-1B Cap or Quota. The total amount of H-1B Visas and H-1B Visa Exemptions granted annually are 85,000. These visas are divided in three categories: Regular Cap, Advanced Degree Cap and Chile-Singapore Cap. Regular Cap is known as the General Quota or cap and grants 65,000 visas. Advanced Degree Cap also known as the Master’s Degree Cap grants 20,000 visas. Chile-Singapore Free Trade Agreement Cap grants 6,800 visas annually only for applicants from Singapore and Chile. These visas are counted in as General Cap.

USCIS will start accepting H-1B Visa Petitions starting April 1st, 2013.

USCIS functions on the fiscal year which starts from October 1st and ends September 30th. So accordingly, fiscal year for 2014 would start on October 1st, 2013 and end on September 30th, 2014.

Regular Quota Cap for H1B Visa 2014 is 65,000.

Masters Degree Quota Cap for H1B Visa 2014 is 20,000.

USCIS usually grants 6,800 visas for Singapore and Chile Free Trade Agreement filings.

There is no deadline as to when the H1Bs should be submitted by. USCIS will start accepting files on April 1st, 2013 and once the H1B Cap is reached, they will stop accepting cases for FY 2014.

  • When a Cap is reached within the first 5 days of the new filing season, all petitions will be subject to a computerized random selection. They will first conduct a selection on the Masters Degree Cap. Masters Degree cases that were not selected will then be put through another random selection with the Regular Cap.
  • In case that the Cap was reached after the first 5 day period and they received adequate amount of petitions, then no Lottery will be conducted. If they receive more than the sufficient amount of petitions, a lottery will be conducted.

If in any circumstance the Advance Degree Cap is reached and Regular Cap is still available, all eligible petitions will be counted in with Regular Cap.

Every year U.S. Immigration Law grants 65,000 visas for Regular Caps. Chile and Singapore Free Trade Agreement Cap is granted 6,800 visas which are included in the Regular Caps. Apart from this, unused Regular Caps from the previous fiscal year are added to the current fiscal year.

To calculate the cap amount, one may use this equation: Current Fiscal Year (65,000) &- Chile and Singapore Free Trade Agreement Cap (6,800) + Unused H-1B Caps from previous Fiscal Year(X) + Petitions that were Denied, Rejected or Withdrawn(X) = Annual Cap for Current Fiscal Year

The petitions counted per fiscal year only include the petitions that were submitted to USCIS prior to final receipt date and which are either pending or already approved. Petitions that were denied, rejected or withdrawn will not be included in the Cap Count.

An individual carrying a U.S. Master’s degree or higher will qualify for Advanced Degree Cap. An individual carrying a U.S. Associates or Bachelor’s or Master’s degree of higher outside of U.S. does not qualify for this cap.

No, only new H-1B Status Petitions filed for employers in the U.S. and abroad are counted in the H-1B Cap. All change of status petitions such as from F-1 to H-1, H-4 to H-1, TN Workers to H-1 are counted in H-1B Cap.

H-1B Petitions requesting Change of Employer, Renewal/Extension and Amending Petitions are not counted in this category. H-1B Petitions filed by exempt employers such as colleges, universities, selected nonprofit organizations and government research organizations are not subject to the H-1B Cap. These H-1B Petitions can be filed any time of the year and are not limited to H-1B Cap being reached.

Once the H1B Petition is approved, you can start work according to the Employment Period given on the H1B Approval Notice. For FY 2014, Employment period must be after October 1ST, 2013. If your petition was filed from overseas, you are required to get H1B Visa stamping in order to enter U.S. on H1B Visa. If your petition was filed as a change of status, then you are not required to travel back for visa stamping.

Yes, H1B Petitions filed by universities, university affiliated nonprofit entities, and nonprofit or government research organizations are not subject to H-1B Cap/Quota. If an employee accepts an offer from any of these exempt employees, he or she may be able to start work prior to start of the fiscal year, which is October 1st. If the employee chooses to work for a private employer, he or she will then be subject to the H-1B Cap and would have to wait to start work on October 1st provided that the employee was selected in the H-1B Cap.

The H-1B Cap is not subject to any employees currently in H-1B Visa Status. Your Employer can file an H-1B Renewal/Extension Petition to extend your stay without being limited in the H-1B Cap/Quota.

The H-1B Cap is not subject to any petitions requesting a change of employer provided that they are currently in a valid H-1B Visa Status. Change of Employer or change in any terms of employment will not be affected by the H-1B Cap.

Once the H-1B Cap is reached, there are no chances of you to get the H-1B Visa till the next fiscal year. However, you may be eligible for other working visas depending on your current condition. You may consult an immigration attorney experienced in the field to shed light on the matter.

No. Once the Cap is reached there are no chances of it to be opened again. Only a fix number of Caps are granted per fiscal year and it is not subject to change.

H1-B Caps/Quota may affect an employer depending on the immigration status of the prospective employees. Candidates who are not currently on an H-1B Status are subject to H-1B Cap/Quota. These candidates cannot start work until or after the start of a new fiscal year which is October 1st. In order for a candidate to start work in the new fiscal year, the employer must file an H-1B Petition starting from April 1st. There are yet chances that the candidate may not start work if the H1-B Cap is reached and the candidate’s petition was not selected. In this case, the employer must file a new H-1B Petition for the new fiscal year.

Unfortunately, there is no guaranteed process to avoid the H-1B Cap. However, there are few precautions that you may take to minimize this possibility. First, you must complete and submit the H-1B Petition at your earliest convenience. USCIS does not accept any petitioner six months prior to the start of new fiscal year. Since the fiscal year starts on October 1st, you must submit the petition to USCIS on April 1st. This reduces the risk of not being selected prior to H1B Cap has reached. Along with submitting the petition on time, you must make certain that you submit all valid documents along with processing fees. An incomplete file will be sent back to the employer. Another option you may consider is to try to obtain some other nonimmigrant visa. You must consider an experience immigration attorney in such critical situations.

If an alien is currently on F-1 or J-1 Visa &- both of which do not have a set expiry date, USCIS had occasionally provided guidance both aliens on these visas. USCIS may or may not allow such aliens so remain in the U.S. until the start of the new fiscal year where they can start there H-1B employment. Another option provided by USCIS can be to extend their OPT Authorization until the start of the fiscal year to cover up gap in the two visa periods. Such options are only at avail to F-1 and J-1 visa holders. Individuals on any other nonimmigrant status will not be provided such treatment and will be obligated to leave the U.S. and return upon obtaining a new H-1B Visa Stamp on October 1st.

Yes. Foreign Exchange Students who are pursuing their Bachelors, Masters or PhDs from U.S. Universities and are working on OPT can file for an H-1B Change of Status Petition. Applying for Change of Status from F1 to H1B allows the student to continue work after expiration of OPT and starting H-1B Employment from October 1st without leaving the country. However, to maintain legal status in America, one must apply for Change of Status prior to OPT Expiration.


H-1B EXTENSION FAQS

H-1B Extension is a petition filed by the employer on behalf of the individual to extend H-1B status for their current foreign employees. This way the foreign worker does not need to leave the country to apply for a new H-1B status and can continue working while the H-1B extension is still pending.

In order for you to stay in the U.S. and work you will need to file an H-1B Extension to extend your stay.

You must file for your H-1B Extension prior to your expiration date.

In case you fail to submit your H-1B Extension prior to your expiration date, you are most likely to get denied or required to leave the U.S. and return with new H-1B stamping. The days you stay in the U.S. after your expiry will be considered to be out of status.

You cannot submit your H-1B Extension more than six months in advance.

You may request 3 years request on your extension. However, you must keep the 6 year H Limitation in mind.

You may file as many extensions as needed. However, the maximum period of stay in the U.S. on H-1B status is six years. In which case, you will have to return to your country for one year and then you may return on H-1B again. If you have a permanent residence application pending for more than a year, you are entitled to file for H-1B status for three years without leaving the country for one year.

All dependents are eligible to stay in the country on H-4 status as long as your H-1B status is current and valid.

You are free to return to your country whenever you want.

An H-1B Extension may take approximately 3-4 months to be adjudicated. However, if you have filed from premium processing, you will receive a decision within 15 days of the filing.

What documents are required to submit an H-1B Extension?

You must submit the following documents to prove your eligibility for H-1B Extension:

  • Copies of biographic pages, visa stamp page, I-94 and travel stamps from the beneficiary's passport
  • Current employer letter
  • Pay Stubs from current job to confirm you are still employed and maintaining status
  • Education degrees, certificates, evaluation, resume, experience letters, etc.
  • Certified Labor Condition Application
  • Copy of previously approved H-1B petition
  • Other documents proving admissibility or maintenance of nonimmigrant status

H-1B Filing fees vary upon the situations of the case. If the H-1B Employer is a nonprofit research organization or higher education, the application fee is $320. If the H-1B employer is an profit employer and is filing H-1B Extension second or more times and if the employer has more than 25 employees, the filing fee is $1820. If the employer has not filed a H-1B extension before and does not have more than 25 employees, then the application is $320. If the employer is filing a second or subsequent extension but does not have more than 25 employees, the required fee is $1070.