Category Archives: H-1B employers

H-1B Visas: What You Need to Know About Filing in 2019

Contributed by Jacqueline Lentini McCullough, January 30, 2019

The Department of Homeland Security (DHS) announced a proposed rule on November 30, 2018 that would require H-1B cap subject petitioners to register electronically with USCIS which would then conduct the annual H-1B lottery from the pool of timely-filed registrants.

The registration window would open 14 days before the H-1B filing window opens on April 1 and remain open for 14 days after that date. Petitioners selected during the lottery would be notified that they are eligible to file their petition and would have a 60-day window to do so.

book with words immigration law and glasses.

The proposed rule would also reverse the order that USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. Currently the agency selects the advanced degree beneficiaries before filling the H-1B cap. Under the new rule, USCIS would count all applicants selected against the H-1B cap first, and then select the ones to receive the advanced degree exemption. Even with the reversal, those with advanced degrees will still have two chances in the lottery.

USCIS estimates that the proposed change would result in a 16 percent increase in the number of beneficiaries holding a master’s degree or higher from a U.S. educational institution.

The proposed rule was published in the Federal Register on December 3, 2018. USCIS accepted comments on it through January 2, 2019. On January 11, 2019, USCIS sent a final version of the proposed rule to the Office of Management and Budget (OMB) for review. The OMB completed its review on January 25th, and a final rule must be published in the Federal Register for it to take effect.

USCIS aspires to finalize and implement the new rule in time for the Fiscal Year 2020 filing season which begins April 1, 2019. Given that the OMB is scrambling in the wake of the shutdown, and the time it would take for the normal review process, it is uncertain that the proposed rule will apply this year.

What is true for this year is that H-1B petitions will require more strategic planning and upfront preparation than in prior years. Following the Trump Administration’s Buy American Hire American Executive Order on April 18, 2017, requests for evidence tripled for the past two years. I expect this level of scrutiny to continue for this year, too.

This means that we need to begin your application earlier, especially if you have never filed before. Companies filing for the first time need to apply to have the DOL verify their business and approve a Labor Condition Application (LCA) before they can file the H-1B petition. Each of those two processes takes at least 7 days.

U.S. Citizenship and Immigration Services and Department of Labor Announce Further Measures to Detect H-1B Visa Fraud and Tighten Rules

Contributed by Jacqueline Lentini McCullough, April 18, 2017

While the H-1B petitions submitted for the lottery this cap season were still in transit to the U.S. Citizenship and Immigration Services (USCIS), both the USCIS and the Department of Labor (DOL) announced several measures aimed at detecting H-1B visa fraud and abuses.

  1. 43431121 - book with words immigration law and glasses.

    Book with words Immigration Law and glasses 

    Beginning April 3, 2017, USCIS is taking a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. The focus will be on the following: (1) cases where USCIS cannot validate an employer’s basic business information through commercially available data; (2) H-1B dependent employers; and (3) employers petitioning for H-1B workers who are off-site at another company or organization’s location. Employers should be prepared to implement internal policies to mitigate risk exposure.

  2. On March 31, 2017, USCIS issued a memorandum making it harder for companies to bring foreign workers to the U.S. using the H-1B visa. The new guidelines require additional information for computer programmers applying for the work visa to show that the position is a specialty occupation requiring advanced knowledge and experience. The new policy is effective immediately, so it will impact the visas currently in the pipeline for the annual lottery process.
  3. On April 5, 2017, the DOL announced that it plans to protect American workers from discrimination efforts by abusing or misusing H-1B visas through the following measures:
    • Rigorously using all its authority to begin investigations of H-1B program violators by using further investigation and if necessary, prosecution.
    • Considering changes to LCA for future application cycles (application may be updated to provide greater transparency to all).
    • Continue to engage stakeholders on how the program may be improved to provide better protections for U.S. workers under existing authorities or through legislative changes.

To help detect or prevent abuse, the DOL has also set up an email address which allows anyone to contact them if they feel they or someone they know have been a victim of H-1B fraud.  (REPORTH1BABUSE@USCIS.DHS.GOV).

As more information becomes available regarding how these announcements will be implemented, we will keep you abreast of any changes. Under political pressure, the policy direction is for increased scrutiny of the H-1B visa category by both USCIS and the DOL. Internal compliance practices may need to be reviewed to ensure your company is following the most recent guidelines moving forward.

When You Need An Amended H-1B Petition, Simeio Solutions Decision

Contributed by Jacqueline Lentini

H-1B employee mobility makes USCIS uncomfortable.

In fact, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) set a new precedent via the Matter of Simeio Solutions LLC. The AAO determined that a worksite relocation outside of the intended area of employment on the original H-1B petition qualifies as a material change to the petition. H-1B employers are now required to file an amended petition for the employee before placing them at the new worksite. The U.S. Citizenship and Immigration Services finalized guidance based on the Simeio Solutions decision in a Policy Memorandum issued on July 21, 2015.

Where a new Labor Condition Application (LCA) used to suffice with a new worksite, H-1B employers are now required to file an amended or new H-1B petition as well. As you can imagine, this creates a lot of paperwork and increases costs for H-1B employers. There are some exceptions to the ruling:

  1. Same “intended area of employment” – If the H-1B employee is moving to a new position within the same metropolitan statistical area (MSA), no amended petition is necessary. The employer is required to post the original LCA at the new worksite as usual.
  2. Short-term placements – In certain cases, an H-1B employee can work at a new location for up to 30 days or in some situations up to 60 days without necessitating a new LCA. In those cases, no new or amended petition is necessary.
  3. Non-worksite locations – H-1B employees traveling for a development activity such as a conference or seminar, and those who spend little time at any one location are exempted from the need for a new or amended petition. And peripatetic employees are exempt if they spend no more than 5 consecutive workdays at the worksite location in any one visit.

Employers who have relocated H-1B employees not covered by the exceptions above need to prepare amended or new H-1B petitions. The Simeio decision is effective based on the following:

  • For H-1B employees relocated to a new worksite on or before April 9, 2015, employers must file a new or amended petition by January 15, 2016. Any employer who has received an intent-to-revoke notice due to the lack of amended petition may avoid revocation by filing the petition by this date.
  • For H-1B employees placed at a new worksite between April 9 and August 19, 2015, employers must file a new or amended petition by January 15, 2016 to be considered timely and to avoid adverse action.
  • For H-1B employees to be placed at a new worksite on or after August 19, 2015, employers must file a new or amended petition before employee starts working there.

If the rules seem complicated, that’s because they are. Compliance requires some thought, creativity, and careful management.

If you have assigned H-1B employees to new locations or are planning to, or have peripatetic H-1B employees, please call me at 630-587-7988 or e-mail me at jlentini@salawus.com so I can help you stay in compliance.