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H-1B Visa General Cap 65,000 For 2016

H-1B Visa PassportFor the 2016 fiscal year, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B general-cap would be 65,000. This means that only 65,000 applicants for a general H-1B nonimmigrant visa would be accepted for this fiscal year through the computer-generated random selection process, or lottery. For those not selected for an H-1B visa, the USCIS will reject and return all unselected petitions with their filing fees.

What do you do if you were not selected for H-1B lottery?

If you have not been selected for H-1B lottery, there are some alternative visa options available to work in the US. There are:

TN Visa

A TN visa is available to citizens of Mexico or Canada. A TN Visa holds some similar attributes to that of an H-1B Visa in that the TN Visa holder may work for up to three years at a time. A unique feature that differentiates a TN Visa from an H-1B Visa is that a TN Visa may be renewed indefinitely.Read More

It’s Not too Early to Begin Preparing for the H-1B CAP

The H-1B CAP will Open on April 1st

It’s that time again for employers to begin preparing for the H-1B CAP. The H-1BCAP refers to the quota system that the USCIS uses to review 85,000 H-1B applications each year. The CAP only applies to those who are petitioning for an H-1B visa for the first time, not those seeking renewals or extensions. Every year theU.S. only allows 85,000 new H-1B applications available for review by the USCIS.65,000 of the visas are open to anyone seeking their first H-1B visa and 20,000 are reserved for those applying for an H-1B who have received a U.S. Master’s degree.Those who are successful and receive an H-1B visa are authorized to begin working in the U.S. under H-1B status on October 1, 2016. The CAP will open again this year on April 1st. It is predicted that there will be high number of applicants this year. A lottery will likely be implemented this year due to the predicted large number of applications. If last year serves as indication, when there were over 233,000 applications received in the first week after the CAP opened, this year could be just as competitive.

Closing the CAP

After the USCIS receives an adequate amount of applications, the CAP will close andthe USCIS will not accept any more applications. This means that any employer whomisses the CAP will not be eligible to apply this year and will have to wait until April2017. Because it is predicted that there will be a high number of applicationsreceived soon after the CAP opens it is essential that employers begin preparingnow to ensure their applications make it in before the CAP closes.

The Lottery

When the USCIS receives a substantial amount of H-1B applications, the USCIS canchoose to institute a lottery in order to decide which applications will be consideredfor review on a neutral basis. The lottery ensures every applicant has an equalopportunity to be chosen as one of the 85,000 applicants that the USCIS will reviewand possibly grant an H-1B visa. To be considered for the lottery, the applicationmust be received by the USCIS before the CAP closes.

Those in the Master’s quota get an advantage with essentially two chances to bechosen in the lottery. When the USCIS receives all the H-1B applications theMaster’s quota applications are separated from the others and 20,000 applicationsare chosen in a separate Master’s quota lottery. Any applications not chosen in theMaster’s quota will be placed with the other applications and have another chanceto be chosen in the regular lottery. This allows those with a Master’s degree to begiven two chances to be chosen in the H-1-B lottery.

Contact Us

It is important to ensure all materials are in order before the CAP opens on April 1st.To discuss filing H-1B’s this season contact the Law Office of Sweta Khandelwal. Attorney Khandelwal is an immigration attorney located in the Silicon Valley whohas considerable experience with H-1B filings.

Cited Sources:

H-1B Fiscal Year 2016 Cap Season, May 4, 2015, USCIS

H-1B Visa Alternatives

This year 233,000 applicants competed for the 65,000 H-1B visas available. This means over 150,000 applicants were not considered and denied the opportunity to apply. The unlucky applicants can wait and try again next year, but in the meantime there are other options available.This video gives a breakdown of the 6 alternative visas.

In addition to the options discussed in the video, below are some of the options explained further.

F-1 Student Visa

Students going to school in the US can apply for a F-1 visa. The F-1 visa allows the student to stay in the US as long as the student is enrolled in an accredited school and are active in a program that will result in a degree.

H-3 Visa for Trainee

Trainees are those who come to the US for training in any field, other than graduate medical education. The training program must be described in detail and approved by the USCIS.

O-1 Visa for Extraordinary Individuals

The O-1 Visa is available for any individual who can demonstrate a superior ability in science, art, education, business, athletics or the motion picture/television industry. Extraordinary ability means the applicant is at the top of the field, which is generally a very small percentage of people. Distinction or a high level of achievement shown through recognition that is not normally given to the typical person in the field may need to be demonstrated.

E-Visa for Trade Treaties

The E-Visa is available for those who come to the US under specific treaties that dictate trade between the US and certain foreign countries. Only nationals of countries that hold trade treaties with the US are eligible. Under the E-Visa category there is also the E-3 Visa which is reserved for speciality workers from Australia.

J-1 Visa for Study Based Exchange

J-1 visas are available for work and study based exchange visitor programs. Applying for a J-1 visa can be a complicated process however and some J-1 visas demand specific requirements, such as a two-year residence in the applicant’s home country. If the applicant is unable to do so, a waiver may be possible in some circumstances. The waiver must be applied for separately.

While the H-1B is an attractive visa, with limited numbers available it is worthwhile to consider alternative visa options. Instead of waiting another year to try again in the lottery it is beneficial to speak to an attorney about other options. Many visas are complicated and have many requirements. Speaking to a professional will ease the process and will assist in finding a visa that is the right fit.

Contact the Law Office of Sweta Khandelwal to discuss alternative visa options. Attorney Khandelwal is an experienced immigration attorney located in the Silicon Valley and has worked in the field for over 10 years.

Cited Sources:

Students and Employment, July 29, 2013, USCIS

H-3 Nonimmigrant Trainee or Special Education Exchange Visitor, September 9, 2014, USCIS

O-1 Visa: Individuals with Extraordinary Ability or Achievement, March 6, 2011, USCIS

E-Visas, April 23, 2011, USCIS

Change of H-1B Workplace Requires Amended Petition

H-1B holders working at multiple worksites must have a Labor Condition Application (LCA) on file for each worksite. Last week the USCIS Administrative Appeals released a decision that states any geographic change in the workplace listed on the LCA accompanying all H-1B visas requires filing an amended application. Also, any material change in the terms and conditions of the employment requires the filing of an amended H-1B with a new LCA.

Matter of Simeio Solutions, Inc., the case decided last week, reinforced this requirement. In the instant case, a foreign worker in India obtained an H-1B and applied for the visa at the United States Embassy in New Delhi. During the interview at the embassy the applicant indicated that he performed services not reflected in his application. This prompted an investigation by the USCIS, which included a visit to the worksite.

The USCIS investigators were unable to locate the worksite as listed on the LCA. After contacting the petitioner’s director of operations it was revealed that the worksite had moved to an employee’s home. Ultimately the court concluded that a change in worksite location is a material change in the application and requires the filing of an amended application.

Many United States employers require their employees to conduct work at multiple worksites. According to the State of California Employment Development Department, approximately 6% of employers in California conduct business at multiple work locations. These employers make up about 44% of California’s total employment. This suggests that many workers in the United States may work for a single employer at multiple workplaces. Foreign workers may also be expected to work at multiple worksites.

Foreign workers in the United States should take note of the worksite listed on their LCA and ensure it matches their place of employment. Multiple worksites can be listed on a single LCA or multiple LCAs can be filed with a single H-1B application. All LCAs should accompany the H-1B application. If the Immigration department conducts an unscheduled audit of a workplace listed on the H-1B application, and finds that the foreign worker is not performing services there, it may have serious immigration consequences.

The USCIS reserves the right to audit/inspect the worksites listed on an H-1B petition. Audits can occur at anytime and can occur without notice. Employers must ensure that the foreign workers are working in accordance with their H-1Bpetitions that includes the LCA.

If a foreign worker is assigned to a different work location that is not listed on the LCA that accompanied his/her H-1B application, an amendmentmust be filed. Contact the Law Office Of Sweta Khandelal today to discussfiling your amended application. Attorney Sweta Khandelwal is an immigration attorney with extensive experience in employment based immigration applications.

Cite Sources:

Matter of Simeio Solutions, Inc., April 9, 2015, U.S. Department of Homeland Security,USCIS Administrative Appeals Office.

Multiple Worksite Report, State of California Employment DevelopmentDepartment, 2014

 

 

Foreign Students and the H-1B Cap Gap

With the school year coming to a close, it’s time for foreign students to start thinking on ways to continue to remain in the United States, following the conclusion of their academic programs. Some college students on F-1 visas who are authorized to work pursuant to the Optional Practical Training (OPT) program are able to find jobs in their field of study and may continue to remain in the US their stay on an H-1B visa. However, moving from an F-1/OPT directly to H-1B can create a gap of time between the expiration of the OPT and before the H-1B visa starts. Fortunately there is a Cap-Gap, which allows applicants with pending or approved H-1B’s to extend OPT work authorization to cover this gap.

What’s required for an F-1 extension?

students-1197349-mIf you’ve secured an employer that will apply for an H-1B on your behalf, it’s essential that the H-1B is timely filed. The H-1B should be applied while the OPT is still in effect.

If the H-1B application is selected in the lottery and approved, an automatic F1/OPT extension will take place. On October 1st when the H-1B visa can officially take effect, the applicant should request a change of status. This will allow for a smooth transition from F-1/OPT to H-1B.

Things to watch out for

  • If the H-1B application is not chosen in the CAP or the H-1B application is denied, the applicant will be granted a 60-day grace period. During this time the applicant must make plans to leave the United States.
  • Once an applicant enters the 60-day grace period, the applicant is no longer authorized to legally work inside the United States.
  • Travel abroad during the OPT period is allowed, however the applicant will not be able to re-enter the United States without a valid F-1 visa, as stamped on the passport. Students are advised to have their latest I-20’s, as well as proof that they are employed pursuant to their OPT, in the event of foreign travel. If the applicant does not have a valid F-1 Visa, the applicant must apply for an H-1B visa at consular post outside of the United States before attempting to re-enter.
  • F-1 extensions are generally granted until September 30th. However, the H-1B employer may intend for employment to start later than October 1st which can create another gap. Should this happen, the Designated School Official of the student on F-1 can fix this gap. It is important to pay close attention to the start day of H-1B visa and end date of F-1.
  • Getting laid off by an H-1B employer before H-1B visa takes effect does not mean the applicant has forfeited his visa and must exit the United States. The student may be able to recover unused Optional Practical Training and continue working in the United States, as long as several additional requirements are met.

To ensure you are eligible for F-1 extension under cap gap it is important to be cautious of timelines and required paperwork. Because there is a transition from one visa to another, accuracy is important to ensure the applicant does not find himself in the United States without a valid visa status. Consulting an attorney is a good idea to ensure all filings are done correctly.

Contact the Law Office of Sweta Khandelwal today to discuss F-1 student visas, H-1B’s the Cap-Gap or any other immigration questions you have. Ms. Khandelwal is an experienced immigration attorney located in the Silicon Valley.

 

Cited Sources:

Extension Of Post Completion Optional Practical Training (OPT) and F-1 Status forEligible Students under H-1B, USCIS, March 15, 2013

 

 

Need for H-1B Visas- The Time to Apply Is Now!

As H-1B season approaches, it’s time to begin your application process for a spot in the lottery. Currently, the USCIS allots 65,000 H-1B visas each year. Vying for a spot in the lottery are an estimated 195,000 applicants. With three times the amount of applicants than visas available, many applicants will be unable to get H-1B status due to sheer lack of numbers.

The Obama administration has attempted to combatimmigration reform but these attempts have not survived in Congress. One bill called the Immigration Innovation Act proposes to increase the amount of H-1B issued from 65,000 to 115,000. The bill also proposes a removal of the 20,000 Cap on applicants with U.S. Master’s degree.

These proposed changes to increase the amount of H-1B visas available would allow more foreign employees to work in the United States.With more H-1B visas issued each year, employers will increase their odds of getting an H-1B and can better plan and prepare for their business’ hiring needs

The technology sector is one of the biggest users of the H-1B Visa. The United States is experiencing a shortage of workers in the Science, Technology, Engineering and Math fields. By increasing the no. of H-1B Visas, we are promoting growth of business’, particularly in high-tech. This could also lead to more job creation in the United States due to foreign workers bolstering new companies with their specialized skill set.

Unfortunately the proposed increases will not be in place this year. With a significantly higher number of H-1B applicants than H-1B visas available, employers can no longer depend on the H-1B program to fill these skilled positions. Employers may have to explore other visa options if their applicants are not chosen in the lottery in order to fulfill employment needs andavoid waitinganother year to try again. Again, the need to hire H-1B workers arise from the fact that United States is experiencing a shortfall of workers in the skilled positions that are filled by H-1B workers.

With a small amount of H-1B visas available the importance of filing on time is crucial. Like last year, the Cap will likely be filled in the first week. Thus, for a chance to be considered in the H-1B lottery, timely filing is extremely important. It’s critical that your application be filled correctly and accurately in order to prevent rejection. If petitions are not selected, or rejected because they are erroneously filed, employers/foreign nationals mustwait for another year before they can apply again. This is where an immigration attorney can be extremely valuable to ensure your application is filed timely and accurately.

The Law Office of Sweta Khandelwal is prepared to help you with all your H-1B filings this year. Contact our offices now to ensure you have time to gather any documentation before the Cap opens next month. Attorney Sweta Khandelwal can also speak with you about other visa options in the event your visa applicants are not chosen for the Cap this year.

Cited Sources:

AILA: Immigration Innovation Act Would Help Economy, January 14, 2015, AILA

 

 

 

How President Obama’s “Immigration Accountability Executive Action” Affects Employment-Based Immigration

President Obama’s “Immigration Accountability Executive Action” proposes several changes to the immigration system many of which could affect employment-based visas. The proposed changes could be good news for employees and employers by decreasing wait times for certain classifications, allowing spouses of H-1B visa holders to work and in some cases increasing the amount of time a employee can remain on his visa.

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The employment-based changes will affect green cards, H-4, L-1B, OPT and PERM classifications.

Ex
ecutive Action re Pre-Registration for Adjustment Cases
Main proposals:

  • Decrease wait time to file adjustment of status
  • Pre-register for green card and receive green card benefits while waiting for approval
  • Allow the temporary non-immigrant visa holder to change jobs while before green card is approved

The Executive Order’s proposals for readjustment cases will significantly benefit temporary non-immigrant visa holders. These visa holders will no longer suffer from long wait times before they eligible to even apply for a green card. Scrapping long wait times will allow immigrants to move through the once long and extensive process much faster. Green card holders are given more rights and benefits than temporary non-immigrant visa holders, and now workers can enjoy these benefits sooner.

Temporary non-immigrant visa holders will be able to change jobs while waiting for green card approval. If a worker receives a promotion or change in job title the lengthy green card process won’t have to start over again. This allows foreign workers to advance their careers faster and with greater ease. These changes will benefit the economy and increase the attractiveness of working in the United States.

H-4’s Ability to Work
Main proposal:

  • H-4 visa holders, spouses of H-1B visa holders can obtain work

Currently H-4 visa holders cannot work in the United States. This proposed change could greatly benefit families coming over the United States. Families may now have the ability to benefit from duel incomes, increasing their wealth and increasing the attractiveness of the H-1B visa. Allowing spouses to work may make the decision to travel to the United States easier on families now that spouses will not have to completely give up ability to work.

L-1BApprovals and Specialized Knowledge
Main proposal:

  • More specifically define “specialized knowledge” to decrease denials of L-1B visas

L-1B visas are granted to workers that possess an advanced knowledge specific to his employment. However, the term “specialized knowledge” is not well defined, which has led to several L-1B denials. The DHS has been consulting with the State Department for the past couple of years in an effort to update the definition of “specialized knowledge.”

Providing additional insight to the meaning of “specialized knowledge” will allow employers to more adequately find employees that fit under this visa classification. This can save employers considerable time and money filing L-1B visas that are subject to denial because the employee’s skill set doesn’t meet the definition of “specialized knowledge.”

Optional Practical Training (OPT)
Main proposal:

  • Students on OPT can extend stay for longer periods of time

OPT is a beneficial tool for students, specifically in the fields of science, technology, engineering and math, to work in the field that they are studying. This allows students to gain practical experience and be more attractive to employers.

Extending the length of stay on OPT will allow employers to employ a student longer without students having to go back to his home country. This will allow students to gain more skills and become more marketable by gaining considerable practical experience working in the United States.

PERM
Main Proposal:

  • Full revamp
  • Modernize PERM system
  • Foreign entrepreneurs subject to “parole” system

Obama proposes the PERM system undertake a full revamping to modernize the PERM system and modernize outdated practices. This could make the PERM process easier and quicker to move through.

Foreign entrepreneurs that invest a certain amount of money in the United States will under a new “parole” system. This could benefit the United States economy by bringing in more money.

ContactThe Law Office of Sweta Khandelwaltoday to discuss how the Immigration Accountability Executive Action and how it could affect your employment-based

Cited Sources:

AILA’s Take on President Obama’s “Immigration Accountability Executive Action” Plan, American Immigration Lawyers Association, November 24, 2014

H-1B Cap Opens April 1st

The H-1B cap for the 2015-2016 fiscal year will open on April 1, 2015. Timely filing is important because there are a limited number of H-1B visas issued each year. Application process is complex with no room for error. It’s time for employers to identify the candidates for whom they wish to file H-1B visa, and start the paperwork.

H-1B visas are popular among employers seeking to employ foreign workers in specialty occupations in the United States. A specialty occupation is a position that requires at least a Bachelor’s Degree. It follows that the H-1B visa applicants must possessa four-year bachelor’s degree in a field related to the position; or the applicants must have relevant and required experience to qualify.

The H-1B cap refers to the limit the USCIS puts on the number of new H-1B applications it will accept for approval each year. This year there will be 65,000 applications accepted for consideration for the regular cap and 20,000 for the H-1B Master’s cap. The Master’s cap is reserved for applicants with a U.S. Master’s degree or higher. Of the 65,000 applications accepted for the regular cap, 6,800 petitions are set aside for H-1B1 classification that is reserved for Singaporean and Chilean residents, per terms of US-Singapore and US-Chile trade agreements.

The National Law Review predicts this year the cap will close within five days of its opening. After the cap closes the USCIS will not accept any more H-1B applications. If USCIS receives more than 65,000 applications before the cap closes there will be a lottery to determine which applications will be selected for H-1B consideration. The lottery is a random drawing among all applications received before the cap closes.

Last year the USCIS received over 172,000 H-1B applications the first week the cap was open. Based on this number, immigration practitionerspredict that this number could increase to 200,000 this year. Applications that are not selected in the lottery will not be considered for H-1B approval. All rejected petitions will not be able to apply again for H-1B status until the cap opens again the following year.

Filing an H-1B petition is a complex process. It is important to ensure your application is filed timely and correctly. Many additional documents, qualifications, and requirements must be met to ensure an applicant can be considered for an H-1B visa. Even the smallest error of checking the wrong box on the application formor a single typo in your application package can cause rejection without an opportunity to refile until the next year.

To ensure your application timely and correctly filed it is important to speak with an immigration attorney. The Law Office of Sweta Khandelwal can help guide you through this process and ensure that your H-1B application has the best chance of being entered into the lottery and approved. Attorney Sweta Khandelwal is an expert in the field of immigration law and can also discuss any other visa options that may be available to you. Contact our offices today to get started on filing your H-1B for the 2015-2016 cap!

Cited Sources:

Fiscal Year 2016 H-1B Cap- You’ve Been Warned, Now Here Are This Year’s Key Dates, The National Law Review, January 23, 2015

H-1B Fiscal Year (YR) 2015 Cap Season, USCIS, January 5, 2015





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