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H-1B Quota over–now what?

US Citizenship and Immigration Services (USCIS) announced on May 3 that all data entry for FY 2018 H-1B cap-subject petitions had been completed.  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.Read More

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H-1B Quota for 2018

The H-1B is a type of non-immigrant visa foreign workers can receive through the U.S. Immigration and Nationality Act. The H-1B visa allows U.S. employers to provide temporary workers with jobs in specialty occupations. Under this visa program, if the worker is fired or quits they must either find a new job, apply to change their immigration status or leave the United States.

According to the regulations governing this visa program a “specialty occupation” is a job requiring the application of highly specialized knowledge for which a bachelor’s degree or some equivalent level of training and certification is required. The H-1B visa is commonly used to hire foreign nationals to work in accounting, architecture, biotechnology, business specialties, chemistry, engineering, health, law, mathematics, medicine, physical and social sciences, theology, and the arts. Fashion models “of distinguished merit and ability” may also receive H-1B visas.Read More

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Get Help Obtaining H-1B Visas-Deadline to file is April 1st 2017

At the Law Office of Sweta Khandelwal, we help individuals in obtaining H-1B Visas, the only work visa available for US companies to hire foreign nationals.  H-1B visas are available for positions that require at least a Bachelor’s Degree in a specific field, and are also referred to as Specialty Occupation visas.  Examples of Specialty Occupations would be Engineers, Doctors, Lawyers, Scientists, etc. Our H-1B Visa attorney, in conjunction with the U.S employer, can help structure an immigration strategy, that will use H-1B and H-1B1 temporary work visas as part of an ongoing process that may eventually lead to permanent legal residency for foreign nationals. Read More

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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

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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

 

 

Tags: #H-1B visa, #immigration law, #immigration law attorney, #immigration law lawyer, #USCIS




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