Tag Archives: H-1B visa

Universities and International Students May Still Benefit Amid Uncertain Immigration Future

Contributed by Jacqueline Lentini McCullough, February 2, 2018

After a decade of rapid growth which saw the international student population increase 85 percent to over a million students, the number of newly arriving international students fell 3 percent in the 2016-2017 academic year.

President Trump’s campaign rhetoric and subsequent action as President have contributed to substantial declines in international student enrollment for the current academic year. Across the country the number of new international students declined an average of 7 percent according to a study of about 500 campuses by the Institute of International Education, with 45 percent of campuses reporting at least some decrease.

41338099 - celebration education graduation student success learning conceptI encourage education and university clients, and any employer hiring international students to be calm and take a breath.  One thing I have noticed about President Trump’s actions is that they have been very consistent with his campaign promises: border enforcement and bans. He wants to move to a merit-based immigration system similar to Canada and Australia.

If the U.S. does move to a merit-based immigration system, international students may gain an advantage. A merit-based system is point-based and prizes highly educated immigrants. Who would be better positioned than those who gained a U.S. college education?

In fact, Sen. Orrin Hatch and Sen. Jeff Flake introduced a bill in the U.S. Senate last week, the Immigration Innovation (I-Squared) Act of 2018, to allow as many as 195,000  H-1B visas. The proposal would increase the number of H-1B visas by 110,000 (from 85,000), while awarding U.S. advanced degree-holders expanded priority in the selection process.

As colleges regroup to recruit internationally in this context, it is recommended that they approach prospects with an eye toward the H-1B visa that international students will ultimately want to apply for.  These are students who:

  • Intend on a STEM major: Engineering majors are the safest bet.
  • Plan to work in a STEM field or true specialty occupation: Qualifying occupations include doctors, lawyers, teachers and engineers.

Unfortunately, unless a student wants to teach a foreign language, liberal arts students are unlikely to qualify for an H-1B visa.

Colleges may even want to use the possible advantage of U.S. college education in a merit-based immigration system as a recruiting point.

U.S. colleges, universities and employers can weather this intense immigration storm by staying calm and focusing their recruitment on the areas most likely to succeed with visas.

H-1B Applicants, Start Your Engines

Contributed by Jacqueline Lentini McCullough, January 31, 2018

If you are planning to file H-1B applications for your employees this year, now is the time to start the process. While the filing deadline is April 2, 2018, it’s not too early to begin the application, which involves several time consuming steps. As in recent years, the H-1B cap season may be met with an overwhelming number of petitions within a week of the April 2nd deadline. If you plan to file for an H-1B visa this year, starting early will enable us to provide your petition with the best possible shot at winning the lottery and obtaining a visa. We recommend starting to prepare the H-1B application by February 12th.

 

Executive Action on Immigration to Affect Millions

Contributed by Jacqueline Lentini McCullough

Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The initiatives include:

Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any age) who have been continuously present in the U.S. since January 1, 2010, who pass background checks and pay taxes are eligible for deferred action (temporary relief from removal for a specified period of time) for a three year period;

Deferred Action for Childhood Arrivals (DACA) to be revised to expand the group it encompasses to include young people who came to the U.S. before turning 16 years old, and have been present in the U.S. since January 1, 2010. It will also remove the 31 year old age cap, paving the way for about 270,000 more people to apply. The work authorization permit will also be increased from two to three years;

-Permit Employment Authorization for H-4 Visa Holders. Currently dependents of H-1B visa holders are not permitted to work. Regulations will be finalized in early 2015;

Optional Practical Training. The length of time in OPT for Science, Technology, Engineering and Mathematics (“STEM”) graduates will be expanded, although no set time frame for this increase and associated regulations have been outlined;

Pre-registration for Adjustment of Status. Individuals with an approved employment immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This change is expected to impact approximately 410,000 people;

-I-601A Waivers. Waivers will be expanded to include spouses and children of LPRs;

Modernization and improvement of immigrant and nonimmigrant programs. Details on this are unclear;

-Enhancements to the Naturalization process; and

-U and T Visas. Three more types of offenses will be added to the list of offenses that can be certified by the Department of Labor.

Preliminary estimates show that approximately 4.9 million individuals may be eligible for the initiatives announced by the President, although there is no way of knowing how many individuals will apply. USCIS won’t begin accepting applications until approximately May 2015, and the new protections could be reversed by a new President. The bottom line is that the only certain provisions will have an immediate impact early next year, such as the DAP and DACA changes. Other proposed changes should be considered more along the lines of “Coming Attractions,” because they require regulations to be implemented. Limited details were offered during the President’s address to the nation, and in his subsequent Memoranda of November 21st.  Since the President’s briefing included business employment immigration reform, there is a reasonable expectation for improvements outside of the undocumented community as well.

 

Immigration Reform Bill Revealed and the Debates are On…

Contributed by Sara Zorich

Last week the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) was introduced.  Since then, there have been a series of congressional hearings to discuss the provisions of the Act.  It is clear from the hearings that there are strong opinions on the bill from many communities that would be affected.  In general, the bill proposes sweeping reform to the country’s broken immigration system.  A summary of the main sections covered by the bill is as follows:

  • Border Security – improving border security including increased surveillance and patrol
  • Legalization and Legal Immigration – work authorization and path to citizenship for individuals currently in the United States with unlawful status; requirement to pay back taxes as part of the application process
  • Legal Immigration – overhaul of the current system for family and employment based immigration
  • Mandatory E-Verify and Increase/Additional Penalties – all employers would be required to use the E-Verify system for employment verification in addition to the Form I-9 within the required phase in periods; employers with more than 5,000 employees would be phased in within 2 years, employers with more than 500 employees will be phased in within 3 years and all employers within 4 years; significant fines from $3,500 – $7,500 per worker for knowingly hiring or continuing to employ unauthorized aliens and fines for failure to comply with E-Verify use requirements; establishes the potential for an electronic Form I-9 in conjunction with E-Verify
  • H-1B Visa Reform – increasing the current cap for the H-1B visa category, additional regulations aimed to curtail alleged H-1B abusers by requiring “H-1B dependent employers” to pay significantly higher wages and modification of application/posting requirements for all H-1B employers
  • New W-Visa Program for Lower-Skilled Workers – new visa category for foreign workers to perform services or labor for registered employers in registered lower skilled positions; the number of visas in this new category would fluctuate annually and is dependent on unemployment rates, job openings, bureau recommendations and additional data
  • Agricultural Job Opportunities – current undocumented farm workers will have an opportunity to obtain legal status

Employers should be aware that the congressional hearings have begun and nothing in the current bill is set in stone.  The bill is certain to go through rounds of revisions before it is set for any vote before the Senate or the House of Representatives.  However, at least thus far, mandatory E-Verify is a pillar of the bill and its continued inclusion seems certain.

Since, in recent years, the government has only increased its enforcement of I-9 and immigration compliance, employers should consider reviewing their current processes and policies in advance of any implementation of mandatory E-Verify.  Further, as a reminder, employers MUST utilize the new Form I-9 (Rev. 03/08/13)N no later than May 7, 2013.  Starting on May 7, 2013, employers are not allowed to use prior versions of the Form I-9 for employment verification of new employees.

Fiscal Year 2014: H-1B Filing Date Coming Up Quickly

Contributed by Jacqueline Lentini McCullough

The H-1B visa category is used by employers hiring a foreign national in a professional-level position (“specialty occupation”) requiring at least a Bachelor’s degree or the equivalent.  Typically, H-1B petitions are filed for foreign nationals hired from abroad, or for F-1 and/or J-1 students who are currently working in the U.S. pursuant to student status work authorization. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1, 2013, with a start date of October 1, 2013 (FY 2014). 

There is an annual cap of 65,000 new H-1B petitions permitted per fiscal year, with an additional 20,000 H-1B’s available for foreign nationals who have earned a U.S. Master’s degree or higher, who are exempt from the H-1B cap. In addition the special rule pertaining to foreign nationals who have earned a U.S. Master’s degree or higher, petitions for new H-1B employment are exempt from the annual cap if the foreign national will work at an institution of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. 

While last year the H-1B cap was reached in mid-June, it is anticipated that the quota will be reached earlier this year. Of course no one has a crystal ball to say exactly when the cap will be exhausted. Consequently, it is advisable to file an H-1B petition by April 1, 2013.  Beware, the first step of the application process is filling the Labor Condition Application (LCA) with the Department of Labor, which can delay the application process.

Typically, it takes approximately five to seven days for an LCA to be certified, and the LCA must be certified before filing the H-1B petition with USCIS.

Technology Company Agrees to Pay More Than $740,000 In Back Wages to 73 H-1B Workers

Contributed by Jacqueline Lentini McCullough

In a recent settlement announced by the Department of Labor (DOL) in June 2012, Semafor Technologies, of Norcross, Georgia, agreed to pay workers $741,288 in back wages to H-1B workers. The DOL’s Wage and Hour Division found violations of the H-1B visa program, which permits foreign nationals to work temporarily in the United States. Semafor Technologies is an IT company specializing in software development, on-site/off-site outsourcing, consulting and product development services.

An investigation conducted by the DOL’s Atlanta district office determined that Semafor Technologies failed to pay 54 H-1B workers during periods of time in which they were not productive because the company did not assign them any work. This practice is called “benching,” and is not permitted under the H-1B DOL regulations. Employers must continue to pay foreign nationals in H-1B status even if there is no work to be performed. In addition, five workers were not reimbursed for various processing fees related to their employment, and 14 were not reimbursed for processing fees or paid for periods without assigned work.

The Director of the DOL’s Atlanta office commented “as demonstrated by the resolution of this case, we are using all tools available to remedy violations, promote accountability, and ensure a level playing field for law-abiding employers and legitimate users of the foreign guest worker programs.”

DOL regulations clearly impose H-1B costs on the employer as a business expense, and not the employee. Employers should pay all expenses related to the processing of H-1B visa petitions, including attorney’s fees and government filing fees. The Semafor Technologies case demonstrates that employers who pass along any part of the H-1B processing fees to employees are creating possible exposure to DOL employer sanctions.

H-1B’s Still Available!

Contributed by Jacqueline Lentini McCullough

The H-1B visa category is used by employers hiring a foreign national in a professional level position (“specialty occupation”) requiring at least a Bachelor’s degree or the equivalent.  The U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions on April 1, 2012, with a start date of October 1, 2012 (FY 2013).  There is an annual cap of 65,000 new H-1B petitions permitted per fiscal year, with an additional 20,000 H-1B’s available for foreign nationals who have earned a U.S. Master’s degree or higher, who are exempt from the H-1B cap. As of May 11, 2012, USCIS had receipted 36,700 H-1B petitions against the 65,000 cap, and 14,800 H-1B petitions for aliens with advanced degrees against the 20,000 Master’s cap.

While last year the H-1B cap was not reached until just before Thanksgiving, it is anticipated that the quota will be reached earlier this year given the cautious signs of an economic recovery. Consequently, it is advisable to file an H-1B petition as soon as possible.  There is even talk that the cap will be reached by the end of this month! A delaying factor in filing the H-1B petition is the first step of the process, the Labor Condition Application (LCA) filed with the Department of Labor (DOL). Typically, it takes approximately five to seven days for an LCA to be certified, and the LCA must be certified before filing the H-1B petition with USCIS.

Petitions for new H-1B employment are exempt from the annual cap if the foreign national will work at an institution of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. Typically, H-1B petitions are filed for foreign nationals hired from abroad, or for F-1 and/or J-1 students who are currently working in the U.S. pursuant to student status work authorization.

UPDATE: On June 11th, the H-1B cap was reached for fiscal year 2013.