Sweta Khandelwal, U.S. Immigration Attorney at The Law Offices of Sweta Khandelwal, speaks about President Donal Trumps’ Executive Order “Buy American, Hire American.”
H-1B Quota over–now what?
US Citizenship and Immigration Services (USCIS) announced on May 3 that all data entry for FY 2018 H-1B cap-subject petitions had been completed. Only 65,000 applicants for a general H-1B nonimmigrant visa would be accepted for this fiscal year through the computer-generated random selection process, or lottery. For those not selected for an H-1B visa, the USCIS will reject and return all unselected petitions with their filing fees. Continue reading H-1B Quota over–now what?
Rumors Concerning The H-4 EAD for Spouses of H-1B Visa Holders
There are rumors about the H-4 EAD for spouses of H-1B visa holders and they are not entirely accurate. There is a freeze on judgments for the visas while there is a lawsuit in court over the legality of the stance. The government is fighting back against the lawsuit, and H-4 EAD for spouses cannot be approved while the court rules on it. This article explains why the myth is concerning for those coming to America, and it may frighten anyone who is already in the country.
#1: The Freeze Stops Everything
The freeze stops nearly everything in the system related to the processing of H-4 EAD visas, and anyone who is looking for an H-4 EAD visa cannot begin the process. Anyone who is already in the system will find they must wait for the judgment to come down on the case. They will wait while the visa is suspended, and they may call the government for help staying in the process while they are waiting. There are many people who may believe they cannot apply again and there are more who are afraid their applications will be kicked out of the system. The simple fact is that the government is only on hold while the court case is pending. Continue reading Rumors Concerning The H-4 EAD for Spouses of H-1B Visa Holders
H-1B Visas Premium Processing Temporarily Suspended
On March 3, 2017, the U.S. Citizenship and Immigration Services (USCIS) decided to suspend H-1B visas premium processing. The department has stated that the suspension may last for about six months but it is unclear how long the suspension will ultimately last. The USCIS claims that the suspension is a move to speed up all of the incoming applications that they have received so far. However, it does not take effect until April 3rd, which is the next application opening period.
About H-1B Premium Processing
H-1B visas premium processing takes on average as little as a month. The suspension, scheduled to take effect on April 3rd, will take away the option of allowing highly skilled immigrant workers to find out if they have been approved that quickly. Financial Times has stated that this could cause a delay for up until August or September. Mark Zuckerberg’s FWD.us, a technology lobbying group, has been seeking to expand on the program. Continue reading H-1B Visas Premium Processing Temporarily Suspended
Get Help Obtaining H-1B Visas-Deadline to file is April 1st 2017
At the Law Office of Sweta Khandelwal, we help individuals in obtaining H-1B Visas, the only work visa available for US companies to hire foreign nationals. H-1B visas are available for positions that require at least a Bachelor’s Degree in a specific field, and are also referred to as Specialty Occupation visas. Examples of Specialty Occupations would be Engineers, Doctors, Lawyers, Scientists, etc. Our H-1B Visa attorney, in conjunction with the U.S employer, can help structure an immigration strategy, that will use H-1B and H-1B1 temporary work visas as part of an ongoing process that may eventually lead to permanent legal residency for foreign nationals. Continue reading Get Help Obtaining H-1B Visas-Deadline to file is April 1st 2017
H-1B Visa General Cap 65,000 For 2016
For the 2016 fiscal year, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B general-cap would be 65,000. This means that only 65,000 applicants for a general H-1B nonimmigrant visa would be accepted for this fiscal year through the computer-generated random selection process, or lottery. For those not selected for an H-1B visa, the USCIS will reject and return all unselected petitions with their filing fees.
What do you do if you were not selected for H-1B lottery?
If you have not been selected for H-1B lottery, there are some alternative visa options available to work in the US. There are:
A TN visa is available to citizens of Mexico or Canada. A TN Visa holds some similar attributes to that of an H-1B Visa in that the TN Visa holder may work for up to three years at a time. A unique feature that differentiates a TN Visa from an H-1B Visa is that a TN Visa may be renewed indefinitely. Continue reading H-1B Visa General Cap 65,000 For 2016
It’s Not too Early to Begin Preparing for the H-1B CAP
The H-1B CAP will Open on April 1st
It’s that time again for employers to begin preparing for the H-1B CAP. The H-1BCAP refers to the quota system that the USCIS uses to review 85,000 H-1B applications each year. The CAP only applies to those who are petitioning for an H-1B visa for the first time, not those seeking renewals or extensions. Every year theU.S. only allows 85,000 new H-1B applications available for review by the USCIS.65,000 of the visas are open to anyone seeking their first H-1B visa and 20,000 are reserved for those applying for an H-1B who have received a U.S. Master’s degree.Those who are successful and receive an H-1B visa are authorized to begin working in the U.S. under H-1B status on October 1, 2016. The CAP will open again this year on April 1st. It is predicted that there will be high number of applicants this year. A lottery will likely be implemented this year due to the predicted large number of applications. If last year serves as indication, when there were over 233,000 applications received in the first week after the CAP opened, this year could be just as competitive.
Closing the CAP
After the USCIS receives an adequate amount of applications, the CAP will close andthe USCIS will not accept any more applications. This means that any employer whomisses the CAP will not be eligible to apply this year and will have to wait until April2017. Because it is predicted that there will be a high number of applicationsreceived soon after the CAP opens it is essential that employers begin preparingnow to ensure their applications make it in before the CAP closes.
When the USCIS receives a substantial amount of H-1B applications, the USCIS canchoose to institute a lottery in order to decide which applications will be consideredfor review on a neutral basis. The lottery ensures every applicant has an equalopportunity to be chosen as one of the 85,000 applicants that the USCIS will reviewand possibly grant an H-1B visa. To be considered for the lottery, the applicationmust be received by the USCIS before the CAP closes.
Those in the Master’s quota get an advantage with essentially two chances to bechosen in the lottery. When the USCIS receives all the H-1B applications theMaster’s quota applications are separated from the others and 20,000 applicationsare chosen in a separate Master’s quota lottery. Any applications not chosen in theMaster’s quota will be placed with the other applications and have another chanceto be chosen in the regular lottery. This allows those with a Master’s degree to begiven two chances to be chosen in the H-1-B lottery.
It is important to ensure all materials are in order before the CAP opens on April 1st.To discuss filing H-1B’s this season contact the Law Office of Sweta Khandelwal. Attorney Khandelwal is an immigration attorney located in the Silicon Valley whohas considerable experience with H-1B filings.
H-1B Fiscal Year 2016 Cap Season, May 4, 2015, USCIS
H-1B Visa Alternatives
This year 233,000 applicants competed for the 65,000 H-1B visas available. This means over 150,000 applicants were not considered and denied the opportunity to apply. The unlucky applicants can wait and try again next year, but in the meantime there are other options available.This video gives a breakdown of the 6 alternative visas.
In addition to the options discussed in the video, below are some of the options explained further.
F-1 Student Visa
Students going to school in the US can apply for a F-1 visa. The F-1 visa allows the student to stay in the US as long as the student is enrolled in an accredited school and are active in a program that will result in a degree.
H-3 Visa for Trainee
Trainees are those who come to the US for training in any field, other than graduate medical education. The training program must be described in detail and approved by the USCIS.
O-1 Visa for Extraordinary Individuals
The O-1 Visa is available for any individual who can demonstrate a superior ability in science, art, education, business, athletics or the motion picture/television industry. Extraordinary ability means the applicant is at the top of the field, which is generally a very small percentage of people. Distinction or a high level of achievement shown through recognition that is not normally given to the typical person in the field may need to be demonstrated.
E-Visa for Trade Treaties
The E-Visa is available for those who come to the US under specific treaties that dictate trade between the US and certain foreign countries. Only nationals of countries that hold trade treaties with the US are eligible. Under the E-Visa category there is also the E-3 Visa which is reserved for speciality workers from Australia.
J-1 Visa for Study Based Exchange
J-1 visas are available for work and study based exchange visitor programs. Applying for a J-1 visa can be a complicated process however and some J-1 visas demand specific requirements, such as a two-year residence in the applicant’s home country. If the applicant is unable to do so, a waiver may be possible in some circumstances. The waiver must be applied for separately.
While the H-1B is an attractive visa, with limited numbers available it is worthwhile to consider alternative visa options. Instead of waiting another year to try again in the lottery it is beneficial to speak to an attorney about other options. Many visas are complicated and have many requirements. Speaking to a professional will ease the process and will assist in finding a visa that is the right fit.
Contact the Law Office of Sweta Khandelwal to discuss alternative visa options. Attorney Khandelwal is an experienced immigration attorney located in the Silicon Valley and has worked in the field for over 10 years.
Students and Employment, July 29, 2013, USCIS
H-3 Nonimmigrant Trainee or Special Education Exchange Visitor, September 9, 2014, USCIS
O-1 Visa: Individuals with Extraordinary Ability or Achievement, March 6, 2011, USCIS
E-Visas, April 23, 2011, USCIS
Change of H-1B Workplace Requires Amended Petition
H-1B holders working at multiple worksites must have a Labor Condition Application (LCA) on file for each worksite. Last week the USCIS Administrative Appeals released a decision that states any geographic change in the workplace listed on the LCA accompanying all H-1B visas requires filing an amended application. Also, any material change in the terms and conditions of the employment requires the filing of an amended H-1B with a new LCA.
Matter of Simeio Solutions, Inc., the case decided last week, reinforced this requirement. In the instant case, a foreign worker in India obtained an H-1B and applied for the visa at the United States Embassy in New Delhi. During the interview at the embassy the applicant indicated that he performed services not reflected in his application. This prompted an investigation by the USCIS, which included a visit to the worksite.
The USCIS investigators were unable to locate the worksite as listed on the LCA. After contacting the petitioner’s director of operations it was revealed that the worksite had moved to an employee’s home. Ultimately the court concluded that a change in worksite location is a material change in the application and requires the filing of an amended application.
Many United States employers require their employees to conduct work at multiple worksites. According to the State of California Employment Development Department, approximately 6% of employers in California conduct business at multiple work locations. These employers make up about 44% of California’s total employment. This suggests that many workers in the United States may work for a single employer at multiple workplaces. Foreign workers may also be expected to work at multiple worksites.
Foreign workers in the United States should take note of the worksite listed on their LCA and ensure it matches their place of employment. Multiple worksites can be listed on a single LCA or multiple LCAs can be filed with a single H-1B application. All LCAs should accompany the H-1B application. If the Immigration department conducts an unscheduled audit of a workplace listed on the H-1B application, and finds that the foreign worker is not performing services there, it may have serious immigration consequences.
The USCIS reserves the right to audit/inspect the worksites listed on an H-1B petition. Audits can occur at anytime and can occur without notice. Employers must ensure that the foreign workers are working in accordance with their H-1Bpetitions that includes the LCA.
If a foreign worker is assigned to a different work location that is not listed on the LCA that accompanied his/her H-1B application, an amendmentmust be filed. Contact the Law Office Of Sweta Khandelal today to discussfiling your amended application. Attorney Sweta Khandelwal is an immigration attorney with extensive experience in employment based immigration applications.
Matter of Simeio Solutions, Inc., April 9, 2015, U.S. Department of Homeland Security,USCIS Administrative Appeals Office.
Multiple Worksite Report, State of California Employment DevelopmentDepartment, 2014
Foreign Students and the H-1B Cap Gap
With the school year coming to a close, it’s time for foreign students to start thinking on ways to continue to remain in the United States, following the conclusion of their academic programs. Some college students on F-1 visas who are authorized to work pursuant to the Optional Practical Training (OPT) program are able to find jobs in their field of study and may continue to remain in the US their stay on an H-1B visa. However, moving from an F-1/OPT directly to H-1B can create a gap of time between the expiration of the OPT and before the H-1B visa starts. Fortunately there is a Cap-Gap, which allows applicants with pending or approved H-1B’s to extend OPT work authorization to cover this gap.
What’s required for an F-1 extension?
If you’ve secured an employer that will apply for an H-1B on your behalf, it’s essential that the H-1B is timely filed. The H-1B should be applied while the OPT is still in effect.
If the H-1B application is selected in the lottery and approved, an automatic F1/OPT extension will take place. On October 1st when the H-1B visa can officially take effect, the applicant should request a change of status. This will allow for a smooth transition from F-1/OPT to H-1B.
Things to watch out for
- If the H-1B application is not chosen in the CAP or the H-1B application is denied, the applicant will be granted a 60-day grace period. During this time the applicant must make plans to leave the United States.
- Once an applicant enters the 60-day grace period, the applicant is no longer authorized to legally work inside the United States.
- Travel abroad during the OPT period is allowed, however the applicant will not be able to re-enter the United States without a valid F-1 visa, as stamped on the passport. Students are advised to have their latest I-20’s, as well as proof that they are employed pursuant to their OPT, in the event of foreign travel. If the applicant does not have a valid F-1 Visa, the applicant must apply for an H-1B visa at consular post outside of the United States before attempting to re-enter.
- F-1 extensions are generally granted until September 30th. However, the H-1B employer may intend for employment to start later than October 1st which can create another gap. Should this happen, the Designated School Official of the student on F-1 can fix this gap. It is important to pay close attention to the start day of H-1B visa and end date of F-1.
- Getting laid off by an H-1B employer before H-1B visa takes effect does not mean the applicant has forfeited his visa and must exit the United States. The student may be able to recover unused Optional Practical Training and continue working in the United States, as long as several additional requirements are met.
To ensure you are eligible for F-1 extension under cap gap it is important to be cautious of timelines and required paperwork. Because there is a transition from one visa to another, accuracy is important to ensure the applicant does not find himself in the United States without a valid visa status. Consulting an attorney is a good idea to ensure all filings are done correctly.
Contact the Law Office of Sweta Khandelwal today to discuss F-1 student visas, H-1B’s the Cap-Gap or any other immigration questions you have. Ms. Khandelwal is an experienced immigration attorney located in the Silicon Valley.