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.

Obama Delays Action on Immigration Reform Until After the November Elections

Reuters reports that President Obama reversed his course last week and delayed taking executive action on the immigration reform until after the November congressional elections, fearing that such action could cost his fellow Democrats control of the Senate.  The immigration reform has been a highly polarizing and political issue in the last few years.  The current delay begs the question and concern that this "attempt to deny protection to desperate refugees, and the delay on immigration action, make absolutely no fiscal or moral sense, and are built on questionable political assumptions."  For further discussion, please refer to the Reuters article:  http://www.reuters.com/article/2014/09/06/us-usa-immigration-obama-idUSKBN0H10ER20140906?utm_source=AILA+Mailing&utm_campaign=7f4b627c9d-AILA8_9_8_14&utm_medium=email&utm_term=0_3c0e619096-7f4b627c9d-290691581

DOS Alert: China EB-5 "Green Card Through Investment" Is Unavailable For Remainder of FY2014

U.S. Department of State's Chief of the Immigrant Visa Control and Reporting Division announced last week that as of August 23, 2014 the maximum number of immigrant visas that may be made available for use by EB-5 Chinese applicants during FY2014 has been reached.  USCIS may continue to accept China EB-5 cases, but they will be held in the "pending demand" status until October 1, 2014.

New Polls Show Continued U.S. Support for Immigration Reform

Results of a poll issued earlier this month by the American Action Forum, show that 78 percent of GOP primary voters, support a step-by-step approach to an immigration reform.  The House has said that it prefers this gradual approach, although it hasn’t taken any action beyond passing a handful of separate bills through committees.   For more information on the polls and the current state of the immigration reform, check out this NBC News article:  http://www.nbcnews.com/news/latino/two-new-polls-show-continued-u-s-support-immigration-reform-n129461

Department of State Revises Visa Reciprocity Schedule for Ukraine

Effective immediately, U.S. Department of State has a revised visa reciprocity schedule for Ukraine to increase the validity of the B-1/B-2 nonimmigrant visitor visa category from the current 60 months to 120 months, valid for multiple entries.  All other visa validities for Ukrainian nationals will remain unchanged.

USCIS Pledges to Improve the EB-5 Green Card Through Investment Program

The Huffington Post published "USCIS Works to Improve the EB-5 Visa Program. Will Congress Follow Suit?" by EB5 Investors Magazine's CEO Ali Jahangiri.  Recently appointed program director Nicholas Colucci at an EB-5 stakeholders conference call pledged that USCIS will not only attempt to process forms more efficiently, but it also aims to increase its competency in the due diligence department.  As of September 2013, there were 7,131 petitions currently pending, pointing to a need for increased efficiency at USCIS.  Approving projects that are well-planned and likely to succeed will continue to strengthen the EB-5 program's image, as well as provide much needed benefits to the U.S. economy. Click here to read the full article.

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.