Posts Tagged ‘NAFTA TN’

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 |