Posts Tagged ‘H-1B’

« Older Entries

Conrad 30 Physician J-Waiver Update for Washington State, Oregon, Idaho, Montana, and Alaska

Thursday, October 17th, 2019 by W. Scott Railton

The demand for Conrad 30 J-1 Physician waivers has risen substantially in the past few years for Washington State and Oregon. Both states received more applications than they used to when this fiscal year began on October 1st. This is probably attributable to a number of factors, including desirability of the living in these beautiful states (including in some amazing semi-rural locations), increasing employer familiarity with the J-1 program, and growing demand for qualified physicians. In particular, demand for certain specialists has grown dramatically, to some extent reflecting both growth and aging populations.

As of October 15th, Washington State reports that it has received 15 specialists applications and two primary care applications. State regulations only permit the approval of 10 specialist applications, prior to April 1st in the fiscal year. Seven specialist applications are pending approval, as in one primary care application. In all likelihood, the remaining applications may have issues which require further attention, though probably some of these concerns are quickly addressed. FLEX spots, which are for non-health professional shortage areas, become available on January 15th, provided slots remain.

As of this writing, 22 of 30 spots are reported reserved for 2020 for Oregon. The past few years, Oregon has filled up with increasing speed.
Alaska, Idaho, and Montana usually do not fill up their 30 spots.

In my experience, applications do not come together over night, as there are several components that require consideration and preparation. The starting point is coming to agreement on a contract which satisfies physician and employer, while meeting all state requirements for the waiver. Beyond that, there is much paperwork, which several discrete requirements that require differing amounts of attention. All this is to say, time is of the essence for anyone seeking spots for this fiscal year in Oregon or Washington. For 2021, it will be best to plan far ahead of the October 1st open window date, as there are some time sensitive requirements that must be met in advance of filing.

All is not lost, necessarily, if all the spots fill up. Sometimes other temporary and permanent solutions exist. Some physicians can successfully obtain O-1 Alien of Extraordinary Ability work authorizations, based on their accomplishments. Canadians physicians can sometimes obtain H-1B status, due to the fact that Canadians are “visa exempt”. It is also sometimes possible to commute from Canada to work in the U.S., and thus fulfill the two year residency requirement while working in the U.S. The U.S. Department of Health & Human Services also operates a J waiver program that can work for primary care and mental health practitioners sometimes. Other federal agencies can also act as sponsors, such as the Department of Defense has previously done via its Military Accessions Vital to the National Interest program (MAVNI). That program however is not currently operating, though DOD has authority to sponsor.

Several bills have been introduced over the years to improve the Conrad 30 program. The Conrad State 30 and Physician Access Reauthorization Act (H.R. 2895) would expand the program, and help address physician shortage needs. As a member of the International Medical Graduate Task Force, I try to stay up on the latest legislative efforts, and always willing to help connect physicians with legislators in an effort to improve access to care and physician opportunity.

I am happy to schedule consultations with physicians and/or potential employers to further discuss these and other immigration-related matters.

Tags: , , , , , , , , , , , , , , ,
Posted in General, Scott Railton |

H-1B Processing Changes Arriving Soon

Friday, September 6th, 2019 by W. Scott Railton

The U.S. Government seems focused on making this be the year it changes how things go with H-1B petitions. Overall, the changes are likely positive, but H-1B filers need to keep on top of these changes, as the timing and method of filings shall both be impacted.

1.  Proposed H-1B Lottery Registration Fee

U.S. Citizenship and Immigration Services is planning on conducting a lottery before April 1st, where employers vie for ticket to file each H-1B.  If chosen, the employer will then be permitted to file an application on April 1st, 2020, for positions starting no sooner than October 1st, 2020. The agency has proposed a fee of $10 for employers to register for the lottery. The introduction of the lottery will save money for all those who end up losing out in a lottery. It remains to be seen though how it will work timing-wise. It is not too early to be thinking about potentially sponsoring H-1B workers, particularly those who are current working in their optional practical training subsequent to their academic program.

Here is USCIS’s announcement on the lottery registration:

The Department of Homeland Security (DHS) today announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS.

Because USCIS must expend resources to implement and maintain the H-1B registration system, and because USCIS operations are funded by fees collected for adjudication and naturalization services, DHS is proposing an appropriate, nominal fee for submitting H-1B registrations to recover those costs.

On Jan. 31, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period, unless we suspend that requirement. We also stated in that final rule that we were suspending the registration requirement for the fiscal year (FY) 2020 cap season, to complete required user testing of the new H-1B registration system and otherwise ensure the system and process work correctly.

In that final rule, DHS also reordered the cap selection process to increase the chance of selecting petitioners with a master’s degree or higher from a U.S. institution of higher education. Preliminary data shows that the number of petitions for U.S. advanced degree holders selected toward the FY 2020 numerical allocations increased by more than 11% over the year before.

H-1B visas allow skilled workers in certain specialty occupations to temporarily live and work in the United States.

Additional information on the proposed rule is available in the Federal Register. Public comments will be accepted from Sept. 4 (when the proposed rule publishes in the Federal Register) through Oct. 4.

 

2.  Department of Labor Changing Its On-Line Portals

The Department of Labor’s Office of Foreign Labor Certification is rolling out big changes for some its filings, including H-1Bs. Employers have long used the Department’s iCERT system to file the required labor condition application, which supports the H-1B petition. This month, the Foreign Labor Application Gateway will replace iCERT.  This makes me feel old, as I remember when iCERT was brand new.  These application used to be submitted by fax.  Here’s the Department of Labor’s announcement:

OFLC Announces Schedule for Electronic Filing of Labor Condition Applications in the Foreign Labor Application Gateway (FLAG) System

As part of the Department’s technology modernization initiative, the FLAG System has been developed to replace the legacy iCERT System, improve customer service, and modernize the administration of foreign labor certification programs through the Employment and Training Administration’s Office of Foreign Labor Certification (OFLC).

OFLC is making this public service announcement to alert employers and other interested stakeholders about implementation of its new FLAG System for the Labor Condition Application (LCA) programs covering the H-1B, H-1B1, and E-3 visa classifications.

Electronic Filing of Form ETA-9035E, Labor Condition Application for Nonimmigrant Workers

• Beginning September 16, 2019, the FLAG System’s LCA Program Module will be enabled and stakeholders will be able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E. However, the FLAG System will not permit the submission of LCA applications until 12:00 p.m. Eastern Time on October 1, 2019.
• OFLC will continue to accept online submissions of the Form ETA-9035E through the iCERT System until 11:59 a.m. Eastern Time on October 1, 2019. The ability to submit LCA applications using the iCERT System will be deactivated at 12:00 p.m. Eastern Time on that date.
• OFLC will process all LCA applications submitted through the iCERT System, and stakeholders will be able to access their iCERT System accounts to check the status of applications submitted through the iCERT System

Tags: , , , ,
Posted in General, Scott Railton |

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.

Tags: , , , , , , , ,
Posted in General, Scott Railton |

Pre-Registration for 2019 Cap-Subject H-1B In The Works

Monday, November 19th, 2018 by W. Scott Railton

The Department of Homeland Security released its list of rules that it plans to update, and the H-1B program made the list.  Specifically, DHS is actively considering whether to implement a pre-registration requirement for cap-subject H-1Bs.  Here’s the language from the DHS Fall 2018 Unified Agenda:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.

Time is getting tight for the U.S. Government to make this work for the April 1st, 2019 lottery.  A Notice of Rulemaking rule will first need to be published in the Federal Register, whereupon the public will be afforded a period of time to comment. The matter is currently pending review at the Office of Management and Budget.

I like the idea of pre-registration, but we’ll have to wait and see what this exactly looks like. Ideally, I think a system which allows employers to apply for a lottery spot before making an actual application can save businesses all sorts of money.  It is a waste of government and business expenditure to prepare full applications, only to have the government return about half of them due to not being selected in the lottery. The Government proposed a similar rule in 2011, but the rule was never implemented. Unfortunately, the Administration has consistently made the H-1B process harder for employers, without regard to cost or sometimes established precedent and law, and so any change to the H-1B program has to be anticipated with skepticism.

In any case, we are recommending that employers start the H-1B process earlier this year, to account for any changes the Administration may implement. We’ll stay up to date on this, and advise accordingly.

 

 

Tags: , , , , ,
Posted in General, Scott Railton |

Cap Gap Work Authorization Ends On October 1st for H-1B Applicants

Saturday, September 29th, 2018 by W. Scott Railton

USCIS sent out a reminder today that students in F-1 status, waiting on their H-1B adjudications, are no longer permitted to work on October 1st based on the cap gap rules.  Employers need to be alert to this as well, due to work authorization rules.  Working without authorization can risk accrual of unlawful presence, which is another can of worms. This is s yet another unfortunate consequence of the agency’s delays in adjudicating petitions this year.

Here is the alert:

F-1 students who have an H-1B petition that remains pending on Oct. 1, 2018, risk accruing unlawful presence if they continue to work on or after Oct. 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through Sept. 30. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS may not be able to adjudicate H-1B change of status petitions for all F-1 students by Oct. 1.

USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is referred to as filling the “cap-gap”, meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to Oct. 1.

While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS to allocate additional resources to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after Oct. 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past Sept. 30, they may continue to work as authorized.

USCIS is committed to adjudicating all petitions, applications, and requests fairly and efficiently on a case-by-case basis to determine if they meet all standards required under applicable laws, regulations, and policies.

Tags: , , , ,
Posted in General, Scott Railton |

USCIS Processing Times Are Getting Longer

Tuesday, September 25th, 2018 by W. Scott Railton

Longer waits, longer applications, and higher fees are the unfortunate reality for persons and businesses seeking immigration benefits with U.S. Citizenship and Immigration Services.  Here in Washington State, the USCIS Field Office in Seattle says it is taking 15 to 16.5 months to adjudicte a naturalization application.  The application itself costs $725, has 18 pages of instructions, and 20 pages of application to complete.  USCIS Field Offices appear to be swamped with additional vetting responsibilities, with no additional funding, despite the high application costs.

Similarly, the Service Centers have long waits for many important benefits.  Work authorization documents are taking 4.5 to 6.5 months to issue out of the National Benefits Center.  It used to be that the agency was required to issue a work authorization document within 90 days by regulation, but since that regulation was stricken, wait times have increased. This can be really hard on adjustment application couples, who need their significant other to be earning income to pay the bills.

H-1B applications have really slowed down too, now taking 5.5 to 7.5 months, according to the California Service Center.  We’ve heard of longer adjudications. The agency has noted the issue as well, and has suspended much of its premium processing program in order to try to get a handle on things.  It seems likely that the increase in Requests for Evidence and Denials has added to the agency’s workload.  H-1B applications include thousands of dollars in filing fees, but that doesn’t seem to be relevant.

Last week I participated in a teleconference with Congressional staffers and discussed the issue of delays.  It is a universal concern in immigration law right now, and hopefully something can be done. As part of that call, I put together the following list of published adjudication timeframes:

Timeframes for initial adjudications:

Local Field Offices:

I-485s

(Seattle):             10 to 19.5 months

(Yakima)              9.5 to 21.5 months

(Spokane)           9.5 to 21.5 months

Application fee:                $1225

Form length:                      18 pages; 42 pages of instructions, not including parole and work authorization applications

N-400s

(Seattle):                              15 to 16.5 months

(Yakima)                              3.5 to 5.5 months

(Spokane)                           11.5 to 18 months

Application Fee:               $725

Form length:                      20 pages; 18 pages of instructions.

 

National Benefits Center:

I-765                      4.5 to 6.5 months for adjustments;   5 to 7 months at NBC for all others

I-131                      4.5 to 6.5 months at NBC

 

California Service Center (I-129s)

H-1B:                     5.5 to 7.5 months

Ls:                           4 to 6 months

Rs:                          4 to 7 months

 

Nebraska Service Center (I-140s)

Extraordinary ability (E11)                                         5 Months to 7 Months

Outstanding professor or researcher (E12)                 5 Months to 7 Months

Multinational executive or manager (E13)                  9.5 Months to 12 Months

Advanced degree or exceptional ability (E21)           5 Months to 7 Months

Skilled worker or professional (E31; E32)                  5 Months to 7 Months

Unskilled worker (EW3)                                             7 Months to 9.5 Months

Advanced degree/ (NIW)                                           5 Months to 7 Months

Schedule A Nurses                                                     8 Months to 10 Months

Tags: , , , , , , , ,
Posted in General, Scott Railton |

Premium Processing Price Hike, Suspension

Thursday, September 6th, 2018 by W. Scott Railton

USCIS will raise the price for Premium Processing on October 1st, from $1225 to the odd number of $1410. Premium processing allows petitioners for certain types of applications to be guaranteed initial adjudication within 15 days, by paying the additional fee. Employers often choose to pay this fee, since the agency often takes months upon months to adjudicate applications through regular processing. The process works a lot of the time, though sometimes attorneys feel that the Premium Processing Unit may adjudicate the petition differently than regular processing. Long-time immigration attorneys probably have seen a few Day 15 Requests for Additional Evidence, which seem issued just to comply with the 15 day adjudication window.

Many Petitioners won’t be able to pay this new, higher fee, because a few days earlier USCIS announced that it is extending and expanding the suspension of premium processing for most types of petitions, in order to get a better handle on the non-premium processing workload. This is an agency which is struggling to manage increasing vetting obligations while delivering adjudications in reasonable timeframes. Employers are best advised to be aware of these bureaucratic challenges, as they can have a real impact on noncitizen worker availability.

Here are the two press releases from USCIS announcing these changes to the Premium Processing service:

USCIS Adjusting Premium Processing Fee (8/31/18)

Fee Increase Consistent with the Consumer Price Index

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today it is adjusting the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers beginning on Oct. 1, 2018 to more effectively adjudicate petitions and maintain effective service to petitioners.

The premium processing fee will increase to $1,410, a 14.92 percent increase (after rounding) from the current fee of $1,225. This increase, which is done in accordance with the Immigration and Nationality Act, represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.

“Because premium processing fees have not been adjusted since 2010, our ability to improve the adjudications and service processes for all petitioners has been hindered as we’ve experienced significantly higher demand for immigration benefits. Ultimately, adjusting the premium processing fee will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently,” said Chief Financial Officer Joseph Moore. “USCIS will continue adjudicating all petitions on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Premium processing is an optional service that is currently authorized for certain petitioners filing Forms I-129 or I-140. The system allows petitioners to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.

USCIS intends to hire additional staff and make investments in information technology systems with the premium funds that are generated by the fee increase. This will allow the agency to provide premium processing service with less disruption while improving adjudications and operational processes.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), and Facebook (/uscis).

USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays (8/28/18)

USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. We expect these suspensions will last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.

While H-1B premium processing is suspended, we will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.
Who Is Affected

The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).

The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.

We will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, we will refund the premium processing fee if:

The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and
We did not take adjudicative action on the case within the 15-calendar-day processing period.

Premium Processing Remains Available for Certain H-1B Petitions

The suspension does not apply to:

Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.
Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. The petitioner must demonstrate that they meet at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite request.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.
Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times by allowing us to:

Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
Be responsive to petitions with time-sensitive start dates; and
Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.

Tags: , , , , ,
Posted in General, Scott Railton |

USCIS Narrows Meaning of a Specialty Occupation

Wednesday, May 23rd, 2018 by W. Scott Railton

USCIS is challenging employers on whether their positions fit the definition of a “specialty occupation.” It has become for the agency to issue “Requests for Additional Evidence” (RFEs) of employers, providing up to three months to respond. The Requests are overly broad, and a disguised tax on the company for filing the petition in the first place. It has been said that the agency anticipates denying as many as 25% of the applications submitted.  Applications were down this year, probably due to these bureaucratic challenges.  Many fear where this is going, with the best and the brightest opting for jobs elsewhere.

The requests can be several pages long.  In doing so, the agency is piling up the costs for businesses. This fits in with the Administration’s overall goal of making immigration harder. Or, as the Executive Order goes, “Buy American, Hire American.”

We are seeing businesses disrupted by this red tape, as new petitions and renewals for key personnel are challenged. The occupations most commonly challenged are managers and information technology professionals. Often, these professionals have many years of experience, and have seen past approvals from the agency.

In my experience, employers don’t typically want to sponsor H-1B professionals unless they have great cause to, due to the underlying costs. Employers don’t typically seek an attorney’s assistance to hire a professional, but that is standard for an H-1B.  There are just too many regulations and procedures to navigate. However, the U.S. has record unemployment and a shortage of qualified STEM professionals right now. So, the H-1B program has the potential to help businesses.

Here is the Request for Evidence template that many petitioners are receiving:

Specialty Occupation

A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum, for entry into the occupation in the United States.
USCIS does not use the job title, by itself, when determining whether a particular position qualifies as a specialty occupation. The specific duties of the proffered position, combined with the nature of the petitioning entity’s business operations, are factors that USCIS considers.

To qualify as a specialty occupation, the position must meet at least one of the following criteria:

1. Bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

USCIS interprets the term degree in the above criteria to mean not just any degree, but a degree in a specific field of study that is directly related to the proffered position.

To show that the position offered to the beneficiary qualifies as a specialty occupation, you submitted:

• A certified Labor Condition Application (LCA)
• Other evidence described, relating to occupation title

The Occupational Outlook Handbook (“OOH”) (a publication of the U.S. Department of Labor) indicates that a [occupation title] is an occupation that does not require a bachelor’s level of education or higher or its equivalent in a specific specialty as a normal, minimum for entry into the occupation.

You have not shown that the position offered to the beneficiary is a specialty occupation. You may submit additional evidence to satisfy this requirement.

Evidence may include, but is not limited to:
• A detailed statement to:
o explain the beneficiary’s proposed duties and responsibilities;
o indicate the percentage of time devoted to each duty; and
o state the educational requirements for these duties.
• A copy of a line-and-block organizational chart showing your hierarchy and staffing levels. The organizational chart should:
o list all divisions in the organization;
o identify the proffered position in the chart;
o show the names and job titles for those persons, if any, whose work will come under the control of the proposed position; and
o indicate who will direct the beneficiary, by name and job title.
• Job postings or advertisements showing a degree requirement is common to the industry in parallel positions among similar organizations.
• Letters from an industry-related professional association indicating that they have made a bachelor’s degree or higher in a specific specialty a requirement for entry into the field.
• Copies of letter or affidavits from firms or individuals in the industry that attest that similar organizations routinely employ and recruit only degreed individuals in a specific specialty. Any letter or affidavit should be supported by the following:
o The writer’s qualifications as an expert;
o How the conclusions were reached; and
o The basis for the conclusions supported by copies or citations of any materials used.
• Copies of your present and past job postings or announcements for the proffered position showing that you require applicants to have a minimum of a bachelor’s or higher degree in a specific specialty or its equivalent.
• Documentary evidence of your past employment practices for the position, including:
o Copies of employment or pay records; and
o Copies of degrees or transcripts to verify the level of education of each individual and the field of study for which the degree was earned.
• An explanation of what differentiates your product and services from other employers in the same industry and why a bachelor’s level of education in a specific field of study is a prerequisite for entry into the proffered position. Be specific and provide documentation to support any explanation of complexity.
• Copies of documentary examples of work product created by current or prior employees in a similar position, such as:
o Reports;
o Presentations;
o Evaluation;
o Designs; or
o Blueprints.
• Additional information about your organization, such as:
o Press releases;
o Business plans;

Tags: , , ,
Posted in General, Scott Railton |

USCIS Receives 190k H-1B Applications for 85k Spots

Thursday, April 12th, 2018 by W. Scott Railton

Demand continues to outpace supply for H-1B petitions. For this year’s cap lottery, U.S. Citizenship and Immigration Services received 190,098 applications for 85,000 spots. This is actually less applications than in some recent years. Of course, this is the full allocation of H-1B slots for the 2019 Fiscal Year, received in the first five days.

For those reading who do not know, H-1Bs are the United States’ professional temporary visa for high skilled workers. These include certain information technology workers, high skilled health care professionals, engineers, accountants, and the like. While there are other temporary and permanent work authorization categories, the H-1B is the typical work authorization category that foreign students might pursue upon completion of studies in the United States. Over half of the students in STEM graduate programs in the U.S. are foreign students.

We speak to many employers who want to hire these students, but run into issues with the H-1B cap. Increasingly, it seems that students who don’t get picked either look for other employers or go to other countries. In some cases, they can wait another year, and apply again, but eventually time runs out. There are other options, like continuing education, or finding employment with certain cap-exempt employers. Fundamentally, though, the current system has many flaws, based on our observations from working with employers and prospective employees.

Good luck to all who applied! Here is the excerpted announcement from USCIS:

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap.

USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

Tags: , , , , , , ,
Posted in General, Scott Railton |

H-1Bs Are Now In Season

Tuesday, February 6th, 2018 by W. Scott Railton

H-1B season is officially upon us.

H-1Bs are the nonimmigrant work authorization for persons in specialty occupations. Specialty occupations are meant to be professional positions, but in the past year U.S. Citizenship & Immigration Services has gone to great lengths to narrow the class of professionals eligible for H-1Bs. In particular, the agency has made obtaining an H-1B much more challenging for information technology professionals.

The H-1B category requires that the employer pay the greater of the prevailing or actual wage for the position. Prevailing and actual wage calculations can sometimes be complicated matters, depending on the position. Employers are required to obtain a certified labor condition application from the Department of Labor prior to filing. This process can take a few weeks in some cases, if the employer is not already registered to file.

On April 1st, the annual cap will be open, and for five days employers will submit applications. We have every reason to expect that the agency will receive more than the maximum number of applications under the H-1B quotas. In total, there are about nearly 85,000 spots. In recent years, the agency has received more than 200,000 applications.

H-1Bs are often used as a bridge status for employers who have initially hired foreign students to work for them based on pre-approved optional practical training.

Filing fees vary depending on the employer, but there is a $460 I-129 form fee, a $500 fraud fee, and a $750 or $1500 training fee.

In light of the recent challenges employers have faced with this category, careful evaluation and planning is best. Job descriptions with particularized duties need to be provided, in order to withstand up to agency scrutiny, This can be challenging for some employers, where they know they have a professional position, but have never had to precisely articulate professional duties.

We can help.

Tags: , , , , ,
Posted in General, Scott Railton |

« Older Entries