USCIS Alert: FY2016 H-1B Cap Reached!

USCIS announced this week that it has received enough H-1B cap-subject petitions to reach the cap for FY2016 (employment start date of October 1, 2015).  USCIS will complete initial intake before it conducts the lottery, but due to the high number of petitions, it is not yet able to announce when the lottery will occur.

2015 H-1B Season Is Fast Approaching!

U.S. employers wishing to employ foreign national workers in the H-1B specialty occupation category starting October 1, 2015, may file the H-1B applications 6 months prior to the October 1^st start date, or April 1, 2015.  There is an annual quota of 65,000 visas for foreign nationals in the general H-1B category and 20,000 for foreign nationals with an advanced degree (Master’s or higher).  Last year USCIS reached the quota for both the general and advanced degree H-1B categories within the first week of April 1, 2014 filing deadline, with the remainder of the applications being subject to a lottery. 

With U.S. economy on the up-swing, it is projected that more U.S. employers will be onboarding new employees this year, including foreign national workers.  The demand for H-1Bs will be higher than in previous years, and the quota will probably once again be reached in the first week of April 1st for foreign national workers who wish to begin employment on October 1, 2015.  It would be wise for the U.S. employers to begin the H-1B process early on to ensure that the applications are filed on April 1, 2015.

Essential Compliance Issues for Employers: H-1B and the Requirements under the LCA

There are regulatory obligations related to the Labor Condition Application (LCA) and the public access file that employers must comply with when sponsoring a foreign national for an H-1B.  The LCA program was conceived as part of the process to protect U.S. workers from foreign workers willing to work for less money, and at less-favorable working conditions. The LCA has a number of attestations, public posting requirements and records maintenance obligations for employers.


Did you know that employers who fail to comply with the LCA attestations or public access requirements may find themselves faced with civil penalties in the amounts from $1,000.00 per violation to as much as $35,000.00 per violation, accompanied by an order to for back-pay of salary and fringe benefits to the foreign worker or debarment from participation in the H-1B program for one to three years?   For further discussion of the key elements surrounding LCA compliance visit the TBLO website and click on the H-1B link under Services tab: http://www.batrakovalaw.com/#!h-1b---specialty-occupation-employment-/c1way.

H-1B Season Is In Full Swing!

U.S. employers wishing to employ foreign national workers in the H-1B specialty occupation category starting October 1, 2014, cannot file the H-1B applications earlier than 6 months prior to the October 1^st start date, or prior to April 1, 2014.  There is an annual quota of 65,000 visas for foreign nationals in the general H-1B category and 20,000 for foreign nationals with an advanced degree (Master’s or higher).  Last year USCIS reached the quota for both the general and advanced degree H-1B categories within the first week of April 1, 2013 filing deadline, with the remainder of the applications being subject to a lottery. 


With U.S. economy having improved since the recession, it is projected that more U.S. employers will be onboarding new employees this year, including foreign national workers.  The demand for H-1Bs will be higher than in previous years, and the quota will probably once again be reached in the first week of April 1, 2014 for foreign national workers who wish to begin employment on October 1, 2014.  It would be wise for the U.S. employers to begin the H-1B process early on to ensure that the applications are filed by April 1, 2014.

H-1B Visa: Allows U.S. Employers To Hire Foreign National Professionals To Work in the U.S.

October 5, 2012

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation.  Currently the law provides for an annual cap on the H-1B category which is 65,000 visas. Not all H-1B nonimmigrants are subject to this annual cap. The quota does not apply to renewals and certain other applicants. The law also exempts up to 20,000 foreign nationals holding a Master’s or higher degree from the cap.  In addition, excluded from the cap are all H-1B non-immigrants who work at (but not necessarily for) Universities and non-profit research facilities.  Free Trade Agreements carve out 1,400 H-1B1 visas for Chilean nationals and 5,400 H-1B1 visas for Singapore nationals. However, if these reserved visas are not used, then they are made available in the next fiscal year to applicants from other countries.

The foreign worker must possess at least a Bachelor’s degree or its equivalent and state licensure, if required to practice in that field. The H-1B work-authorization is strictly limited to employment by the sponsoring employer. 

The H-1B visa is initially issued for a period of 3 years and may be extended up to 6 years.   An exception to maximum length of stay applies in certain circumstances:

• If a visa holder has submitted an I-140 immigrant petition or a PERM labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year or three-year increments until a decision has been rendered on their application for permanent residence;
• If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to their priority date not being current, they may be entitled to a three-year extension of their H-1B visa.

One of the reasons that makes the H-1B visa so desirable is that, unlike many other non-immigrant visa categories, it is a "dual intent" visa which means the H-1B worker may continue on to obtain a permanent resident status (“green card”).  In addition, this dual intent means that an H-1B visa will not be denied simply because a person has an intention to become a permanent resident.

If an H-1B worker quits or is his employment is terminated by the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, switch (“port”) to another employer, or leave the U.S. within a short period of time.