Now is the time for employers to prepare for a successful 2020 H-1B filing season. You’re probably wondering how best to go about this, given the complexities that arose relative to specialty occupations, degrees and wage issues last year. Please note that USCIS has complete discretion whether to deny a case outright or issue a Request for Evidence (RFE). We cannot stress strongly enough the importance of planning and developing strong documentation in support of your case. In so doing, we recommend that you carefully consider and document the below points, as follows:
If employee has a US master’s degree from a public or non-profit nationally accredited university, apply under the Master’s cap. You can do so whether or not the offered position requires a master’s or bachelor’s degree. The degree, transcript and evidence that the University is public, non-profit and accredited must now be submitted to the Department of Labor with the Labor Condition Application
It is critical to show the nexus between the offered position’s job duties and the degree requirement
Select the O*NET code and OFLC Wage level carefully so that the actual wage is reflective of a specialty occupation requiring a degreed professional. Be cautious about Level 1 entry-level wages. We advise paying a higher wage, or be prepared to explain why the position is both entry level and qualifies as a specialty occupation. You may wish to obtain an expert opinion for the latter
Consider whether the prospective employee will consular process outside the US or do they qualify for a change of status? It’s best to consular processing to preserve OPT if valid beyond October 1st, and to file a change of status case if OPT expires prior to October 1st to protect work authorization under the “cap gap” policy (travel should be avoided in this scenario during case processing)
To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met with supporting documentation: (1) A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; the required degree must be related to the position to be filled.; or (2) The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; or (3) The employer normally requires a degree or its equivalent for the position; or (4) The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
We are uncertain at this time if USCIS will implement a designated H-1B Cap Pre-Registration lottery process for employers in time for this filing season. USCIS stated that this would reverse the order by which the agency selects H-1B petitions under the cap and the advanced degree exemption with the end goal being to increase the number of beneficiaries with master’s or higher degrees from US universities. We will continue to provide updates on this as more information is released.
We would suggest that another strategy for securing the talent that you need in your organization is to consider processing a PERM Labor Certification case with the Department of Labor that is not subject to lottery selection. This can be done for a prospective employee inside or outside the USA or for your F-1 OPT employee as a backup to your H-1B filing, creating a direct path to permanent residency.
Our office is available to assist you with your case filing strategy and case submissions. We are already in planning mode. We can be contacted at info@immigrationcompliancegroup.com
…Which came as a complete surprise to the business community, particularly at a time when his administration has done nothing but attack legal immigration, making the H-1B application process nearly unbearable for employers since the release of his “Buy American – Hire American” Executive Order. So, what could Trump do if he was ‘really’ interested in high skilled immigration?
It’s almost that time of year again for H-1B filing season FY 2016 (commencing April 1, 2015), and it’s not too early for employers to be discussing hiring needs with their management team and assessing where in the organization they wish to sponsor H-1B professionals, and identifying potential candidates that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates in L-1 status working for other employers or in some other non-immigrant classification who would need to change their status to H-1B in order to extend their stay and accept new employment.
The H-1B job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.
What is the definition of a specialty occupation? A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its US equivalent. For example, architecture, engineering, IT, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, and the arts are considered specialty occupations.
Small to medium-size companies are frequently asked to justify why the position requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, examples of work being produced, the education of previous employees in the position, etc., why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.
Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service or university that is authorized to evaluate work experience for degree equivalency).
Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for their green-card sponsorship (permanent residency), it is essential that the degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which they will file their labor certification, the first step in the green-card process.
USCIS now requires very detailed job descriptions for H-1B visa petitions that contain the position summary, duties and responsibilities, as well as the percentage allocation spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET occupational classification system and the Occupational Outlook Handbook, which is the primary source of job information for USCIS and the Department of Labor.
In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.
Discuss your H-1B requirements as well as any other business immigration matters by contacting us at info@immigrationcompliancegroup.com, or call 562 612.3996.
We are hearing in the field that they are if the employer-employee relationship can be evidenced through an independent Board of Directors that controls the terms of employment of the entrepreneur and can be convincingly and thoroughly documented, along with appropriate corporate formation documents and a viable business plan. Keeping this in mind when developing the structure of a start-up is exceedingly important for immigration purposes.
The H-1B visa category is one of the most used visa classifications by US employers and is available to professionals that will work in a specialty occupation that generally requires a minimum of a bachelor’s degree or its equivalent.
Last year, the number of H-1B visa petitions filed in the first 5 days exceeded the entire H-1B visa allotment. Hundreds of employers were unable to hire all the foreign-based professional talent that they required, and their petitions went into a lottery pool, left to chance and uncertainty.
Given that we are seeing improvements in the economy, it is anticipated that this filing season will be the most competitive one in many years. Just to review…There is a limit of 85,000 H-1B visas available each fiscal year, 20,000 of which are reserved for individuals who have graduated with an advanced degree (a master’s or higher degree) from a US college or university that is accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Secondly, the school must be a public or other nonprofit institution. If these requirements are not met, the candidate will not qualify for the master’s degree exemption. It is also to be noted that employers stand a stronger chance obtaining advanced degree petition approvals, even if the position being offered only requires a bachelor’s degree or its equivalent.
Our position is that it’s just not too early to start assessing where you’d like to add personnel and to start working with your immigration provider on such important matters as:
1) Credential evaluations for prospective employees with foreign degrees
2) Thorough job descriptions indicating the percentage of time spent on core areas of the position
3) Needed updates to your corporate stats and profile information
4) Updating intake questionnaires for H-1B employees
5) For new employers who have previously not filed H-1Bs and are not in the databases accessed by government agencies, be prepared for a request to submit to the Department of Labor iCERT system for Labor Condition Applications (LCA) a copy of your IRS letter confirming your EIN number. It is also not unusual for them to request your corporate formation documents before they will certify your LCA. H-1B petitions will be denied if not accompanied by a certified Labor Condition Application. It might be advisable to file your LCA’s in late January or February even though this will shorten a few months from the 3-year initial approval.
If the prospective employee is a national of Canada, Mexico, Australia, Singapore or Chile you have other options to consider. Canadian and Mexican professionals qualify for TN status (pursuant to Trade NAFTA). You can file anytime of the year under this classification; there are no quotas, applicants can apply right at the border, and the 3-year period of stay can be extended indefinitely. Here is a link to the list of occupations that qualify for TN classification.
Australian nationals are eligible for E-3 status in 2-year increments and can consular process their applications, with unlimited extensions available. A Labor Condition Application is required for these cases. Nationals from Singapore and Chile qualify according to Free Trade Agreements for the H-1B1 classification. There is a quota for this category that has never been reached.
If you are contemplating the hire of a professional who currently holds H-1B status with another employer, they are exempt from the quota and can start working for you immediately even though the petition is pending approval.
We encourage employers to call us with any questions that you might have or if you’d like to retain our firm to handle your H-1B filings. Our email: info@immigrationcompliancegroup.com or by phone 562 612.3996.
Infosys is India’s second largest software exporter, and has about 30,000 workers in the U.S. (160,000 worldwide) with $6B in sales.
After years of investigation, it was found that Infosys “knowingly and unlawfully” brought Indian workers into the United States on B-1 business visitor visas( since 2008), to circumvent the higher costs and delays of a longer-term employment-related visa, such as the H-1B visa that the workers should have had. It was found that Infosys systematically submitted misleading information to US immigration authorities and consular officials to obtain the B-1 visas that do not permit employment, unfairly gaining a competitive edge and undercutting American workers qualified for the jobs
Press release states: “Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011 as required by law, including a widespread failure to update and re-verify the employment authorization status of a large percentage of its foreign national employees…more than 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations.”
The largest fine of its kind, was paid out as follows: $5 million to Homeland Security Investigations, $5 million to the Department of State, and $24 million to the DOJ.
How can employers protect themselves?
The five federal agencies charged with workplace enforcement are not only going after businesses that are known to employ undocumented workers, but they are also making examples out of industry leaders across the country creating headline news. It goes without saying, that this is now a topic that should be on HR executives’ action list. Turning a blind eye can be exceedingly costly and cause great damage to a company’s reputation.
There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same.
Previously, according to a 2003 legacy INS memo, a simple change in job location did not require that a new petition be filed with USCIS. The employer was required to analyze prevailing wage for the new location, file and obtain a new certified Labor Condition Application (LCA) with the Department of Labor prior to the employee moving to the new location, post the LCA at the new work site according to DOL regulations, make sure wage and hour obligations were met, but did not have to file an amended petition with USCIS.
Under the CSC’s new and controversial interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed this radical reinterpretation of the law – just the CSC.
Long-standing guidance still indicates that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should proceed with caution and work with a competent immigration professional whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. Employers need to be careful to reveal all possible jobsite locations for each H-1B worker at the front end of case processing.
USCIS headquarters has the H-1B amendment issue under consideration and has indicated that they may issue additional guidance regarding this matter. In the meantime, please be advised that for cases under the jurisdiction of the CA Service Center for H-1B workers whose jobsite locations have changed, an amended petition prior to any geographic relocation is now required.
Should you wish to become a client of our office, please contact one of our immigration professionals at info@immigrationcompliancegroup.com, or call 562 612.3996.
Much of the immigration challenges around case approval for entrepreneur start ups with USCIS has to do with the cases being reviewed by untrained officers, a lack of overall guidance for attorneys and practitioners concerning this casework, and a fundamental lack of “real world”, hands-on business knowledge on the part of USCIS. The agency has definitely released a nice looking mini-website marketing piece on the subject. We remain hopeful that the implementation of the below-listed changes will be the start of a new mindset for USCIS adjudication of entrepreneur start-up casework. In reviewing the information, we note that the Entrepreneur in Residence (EIR) team states that they have:
– Developed and deployed a training workshop for USCIS employment-based immigration officers that focuses on start up businesses and the environment for early-stage innovations;
– Trained a team of specialized immigration officers to handle entrepreneur and start up cases;
– Modified Request for Evidence templates for certain nonimmigrant visa categories to incorporate new types of relevant evidence into the adjudicative process; and
– Developed a plan for quarterly engagements with the entrepreneurial community to ensure that USCIS stays current with industry practices.
To sustain the momentum and build on the team’s accomplishments, USCIS indicated that they have extended the EIR project through April 2013. The project should be extended indefinitely if we are seriously courting foreign entrepreneurs to help jump-start the US economy. Among other things, the team states that it will expand its focus to immigrant visa pathways that may enable foreign entrepreneurs to start a business in the United States within current immigration law.
We are hopeful, in light of the economic challenges ahead of us in the USA at this time, that Congress will have a light bulb moment and pass legislation for a Start-up Visa and find a balanced and fair approach to increasing the visa alotment for STEM occupations without the punitive tradeoff approach of penalizing other visa classifications in return. For more information on the EIR program, we link here.
USCIS has partnered with business experts to ‘supposedly’ improve the way they approach the employment-based and high-skilled visa categories used by immigrant entrepreneurs. We’d really like to hope for the best on this that something major occurs as a result of opening up to public expertise and excellence in order to relax the restrictive business immigration environment that is prevalent at this time.
Director Alejandro Mayorkas kicked-off this innovative program, called the Entrepreneurs in Residence(EIR) initiative, with an Information Summit in Silicon Valley in February. Now, USCIS has entered a new phase of the initiative by bringing together the EIR Tactical Team. For 90 days this collaborative team, comprised of both USCIS employees and entrepreneurs from the private sector, will identify opportunities where USCIS can streamline pathways for foreign entrepreneurs. Team members began their work at USCIS in late March.
Last week, they traveled to the California Service Center and met with USCIS officers to discuss the visa categories most often used by immigrant entrepreneurs: H-1B, L-1 E-1, E-2, and O-1.
The Department of Homeland Security (DHS) this week announced a series of administrative reforms to help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world. These reforms are to take place over a period of time.
Leaders in the private sector launched the Startup America Partnership, an independent alliance of entrepreneurs, corporations, universities, foundations, and other leaders, joining together to fuel innovative, high-growth U.S. start-ups. Within just one year, the Partnership has mobilized to make over $1 billion in business services available to a national network that will serve as many as 100,000 start-ups over the next three years.
