Posts Tagged ‘Cap-Exempt’

Time To Determine H-1B Worker Needs

Friday, January 25th, 2019 by W. Scott Railton

Employers get a single bite at the apple each year to use the H-1B program.  On April 1st, U.S. Citizenship and Immigration Services will begin accepting applications for H-1B workers. The window for filing is only five business days.

After the window closes, the agency will hold its annual lottery of applications.  Twenty thousand slots are available for graduates with Master’s degrees or higher, from U.S. institutions. Another sixty-five thousand slots are reserved for persons with at least undergraduate degrees or the equivalent (e.g. equivalency through work experience).  Those selected will not be able to start any sooner than October 1st, 2019.  In practice, the agency has sometimes taken longer to adjudicate cases.

Last year, the agency also projected a 25% denial rate, based on increasingly stringent adjudication standards. Certain professions, particularly in the information technology sector, need to really focus on delivering evidence that the position indeed qualifies as a “specialty occupation.”

H-1B employers are required by law to pay at least the greater of the prevailing wage or actual wage for the position. These figures can be calculated a number of ways,  including through Department of Labor resources, collective bargaining agreements, or private wage studies.

H-1Bs are typically granted for three years, and renewable another three years.  In some cases, it is possible to renew them beyond six years, such as when someone has proceeded sufficiently  down the green card path.

Sometimes it makes sense for NAFTA TN workers to be switched to H-1B status, if possible. The Immigration and Nationality Act specifically permits H-1B holders to pursue permanent residence.  This is not the case with the TN status.

Some employers are not subject to the annual H-1B cap, and can petition for H-1B status any time during the year.  These include institutions of higher education, affiliated organizations, and non-profit research organizations. Determining whether an organization is cap-exempt can be a complicated affair in some cases, but this exemption is very valuable. We see many medical organizations that are cap exempt, based on their connection to institutions of higher education.

The H-1B application takes some lead time to prepare, due to the complexity, and particularly due to prerequisite Labor Condition Application that must be filed with the Department of Labor. The LCA usually takes at least a week to process. A pre-registration rule cleared the Office of Management and Budget on January 25th, and could end up adding an additional process, though a court challenge is also possible.

This post only touches the highlights of the process. The key point is April 1st is approaching quickly, and if there appears to be a need to file an H-1B, now is the time to take further steps to investigate and perhaps prepare the application.

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Posted in General, Scott Railton |

H-1B Season Is Upon Us

Tuesday, January 28th, 2014 by W. Scott Railton

H-1B filing season is upon us. H-1Bs are specialty occupation work authorizations, and are one of the more common ways U.S. employers are able to employ foreign professionals.

Here are a few things to know:

• April 1st is important for H-1Bs. Most employers must file on or very soon after this day for H-1B start dates of October 1st.

• H-1Bs availability is governed by quotas. The current quota allows for 65,000 approvals per year, plus an additional 20,000 approvals for persons with graduate degrees from a U.S. school. Additionally, some employers are exempt from this cap, including those affiliated with institutions of higher education and non-profit research organizations. Cap exemption can sometimes be a sticky subject.

• If it’s anything like last year, the quotas will probably be filled up by the end of the first week of April. In fact, in recent years, the agency has had to hold a lottery because the applications received have exceeded the quotas.

• Waiting until the last minute is a mistake. Proper preparation of the applications takes a while. Employers are required to first file a labor condition application with the Department of Labor, and this can take a week. Gathering the appropriate supporting documentation can slow things down as well.

• H-1Bs are typically granted to employees for 3 years, and renewable for another 3 years. H-1Bs are permitted to have immigrant intent, and so lawful permanent residence can be sought during this time, without DHS repercussion to the status.

• Filing fees are somewhat expensive for H-1Bs. They can include a $325 filing fee related to the I-129 form; $1500 or $750 “training fee”, based on the number of employees a company has; and a $500 fee for fraud prevention. There is an optional $1225 fee for premium processing, which guarantees initial adjudication in 15 days or less.

• H-1B applications can be complicated by any number of factors. U.S. Citizenship and Immigration Services has shown a propensity for challenging applications in recent years.

This is just a snapshot of things. The H-1B program is laden with rules and exceptions to those same rules.  We make it our business to know the ins and outs. Along those lines, April 1st is one of the most important “ins” for clients to be aware of, and so I’m putting up this post.

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Posted in General |