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?
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
New Case Challenges New H-4 Regulation That Would Allow Spouses to Work in U.S.
A few weeks ago we blogged about a new regulation allowing H-4 visa holders(dependents of H-1B visa holders) to work in the United States. However, a case has just been filed in Washington D.C. federal court challenging this regulation. The lawsuit, Save Jobs USA v. U.S. Department of Homeland Security, was filed lastThursday by Save Jobs USA, a group representing former California computer workers, claiming that the regulation violates the Immigration and Nationality Act and asking the court to vacate the H-4 rule allowing spouses to work in the UnitedStates.
Save Jobs USA backs up its claims by stating there is no statute that authorizes H-4visa holders to work in the United States and that in promulgating this rule, theDepartment of Homeland Security has exceeded its authority. The effect of this, asmuch of the complaint is focused on, is the increase in foreign competition, which inturn burdens U.S. citizens by increase the difficulty of finding a job. Specifically itstates the new rule will increase the foreign workforce by 179,000 in the first yearand 55,000 following years. Save Jobs USA goes on to list three instances of SaveJobs USA members who have been replaced by H-1B visa holders.
Save Jobs USA claims the Immigration Nationality Act has provisions that aredesigned to protect American workers. For instance, the Labor Conditions Application (LCA) limits the number of visas to be issued to foreign workers.However, allowing H-4 holders to obtain work, works against the protection thatlimits the amount of foreign workers
The complaint also cites the Department of Homeland findings that the new H-4regulation will make the H-1B visa more attractive and cause employers to retain the H-1B workers that are already working for United States companies. Save JobsUSA warns that an increase in H-1B workers staying in the United States in conjunction with an influx of new H-1B workers coming to the United States each year, will only work against the United States citizen’s ability to find viable employment.
Another issue raised by Save Jobs USA is a website that contains postings for foreignworkers in the United States on H-4 visas. The website already has 15 job postinglisted, all for computer jobs. Therefore even though the new regulation allowing H-4 workers to work has yet not gone into effect, there is already increasedcompetition for jobs when these jobs could potentially go to U.S. citizens.
Save Jobs USA is asking the court to vacate the H-4 rule and prevent H-4 visa holdersfrom working in the United States. If they win this could upset the projected179,000 foreign workers who would apply for work under this new provision in thenext year. The United States government will be defending this case and will likelyargue it does have the power to pass this regulation.
The arguments raised by Save Jobs USA are very narrow in scope and does not consider the broader economic benefits of the regulation. Many families will benefit from the regulation because it will allow both parents to work outside of the home and bring in additional income. Additionally allowing spouses of H-1B holders to gain work authorization will increase the number of highly-skilled workers in the workplace. This will benefit many U.S. companies that require highly-skilled workers, particularly in the technology sector. Save Jobs USA’s arguments are narrow and are only focused on the increased competition and fails to address any of the many benefits this regulation provides.
Contact the Law Office of Sweta Khandelwal for updates on this case or to discusswork authorization for H-4 visa holders or any other immigration questions.Attorney Khandelwal is an immigration attorney located in the Silicon Valley.
Save Jobs USA v. U.S. Dep’t of Homeland Security, Filed April 23, 2015
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.
Need for H-1B Visas- The Time to Apply Is Now!
As H-1B season approaches, it’s time to begin your application process for a spot in the lottery. Currently, the USCIS allots 65,000 H-1B visas each year. Vying for a spot in the lottery are an estimated 195,000 applicants. With three times the amount of applicants than visas available, many applicants will be unable to get H-1B status due to sheer lack of numbers.
The Obama administration has attempted to combatimmigration reform but these attempts have not survived in Congress. One bill called the Immigration Innovation Act proposes to increase the amount of H-1B issued from 65,000 to 115,000. The bill also proposes a removal of the 20,000 Cap on applicants with U.S. Master’s degree.
These proposed changes to increase the amount of H-1B visas available would allow more foreign employees to work in the United States.With more H-1B visas issued each year, employers will increase their odds of getting an H-1B and can better plan and prepare for their business’ hiring needs
The technology sector is one of the biggest users of the H-1B Visa. The United States is experiencing a shortage of workers in the Science, Technology, Engineering and Math fields. By increasing the no. of H-1B Visas, we are promoting growth of business’, particularly in high-tech. This could also lead to more job creation in the United States due to foreign workers bolstering new companies with their specialized skill set.
Unfortunately the proposed increases will not be in place this year. With a significantly higher number of H-1B applicants than H-1B visas available, employers can no longer depend on the H-1B program to fill these skilled positions. Employers may have to explore other visa options if their applicants are not chosen in the lottery in order to fulfill employment needs andavoid waitinganother year to try again. Again, the need to hire H-1B workers arise from the fact that United States is experiencing a shortfall of workers in the skilled positions that are filled by H-1B workers.
With a small amount of H-1B visas available the importance of filing on time is crucial. Like last year, the Cap will likely be filled in the first week. Thus, for a chance to be considered in the H-1B lottery, timely filing is extremely important. It’s critical that your application be filled correctly and accurately in order to prevent rejection. If petitions are not selected, or rejected because they are erroneously filed, employers/foreign nationals mustwait for another year before they can apply again. This is where an immigration attorney can be extremely valuable to ensure your application is filed timely and accurately.
The Law Office of Sweta Khandelwal is prepared to help you with all your H-1B filings this year. Contact our offices now to ensure you have time to gather any documentation before the Cap opens next month. Attorney Sweta Khandelwal can also speak with you about other visa options in the event your visa applicants are not chosen for the Cap this year.
AILA: Immigration Innovation Act Would Help Economy, January 14, 2015, AILA
H-1B Cap Opens April 1st
The H-1B cap for the 2015-2016 fiscal year will open on April 1, 2015. Timely filing is important because there are a limited number of H-1B visas issued each year. Application process is complex with no room for error. It’s time for employers to identify the candidates for whom they wish to file H-1B visa, and start the paperwork.
H-1B visas are popular among employers seeking to employ foreign workers in specialty occupations in the United States. A specialty occupation is a position that requires at least a Bachelor’s Degree. It follows that the H-1B visa applicants must possessa four-year bachelor’s degree in a field related to the position; or the applicants must have relevant and required experience to qualify.
The H-1B cap refers to the limit the USCIS puts on the number of new H-1B applications it will accept for approval each year. This year there will be 65,000 applications accepted for consideration for the regular cap and 20,000 for the H-1B Master’s cap. The Master’s cap is reserved for applicants with a U.S. Master’s degree or higher. Of the 65,000 applications accepted for the regular cap, 6,800 petitions are set aside for H-1B1 classification that is reserved for Singaporean and Chilean residents, per terms of US-Singapore and US-Chile trade agreements.
The National Law Review predicts this year the cap will close within five days of its opening. After the cap closes the USCIS will not accept any more H-1B applications. If USCIS receives more than 65,000 applications before the cap closes there will be a lottery to determine which applications will be selected for H-1B consideration. The lottery is a random drawing among all applications received before the cap closes.
Last year the USCIS received over 172,000 H-1B applications the first week the cap was open. Based on this number, immigration practitionerspredict that this number could increase to 200,000 this year. Applications that are not selected in the lottery will not be considered for H-1B approval. All rejected petitions will not be able to apply again for H-1B status until the cap opens again the following year.
Filing an H-1B petition is a complex process. It is important to ensure your application is filed timely and correctly. Many additional documents, qualifications, and requirements must be met to ensure an applicant can be considered for an H-1B visa. Even the smallest error of checking the wrong box on the application formor a single typo in your application package can cause rejection without an opportunity to refile until the next year.
To ensure your application timely and correctly filed it is important to speak with an immigration attorney. The Law Office of Sweta Khandelwal can help guide you through this process and ensure that your H-1B application has the best chance of being entered into the lottery and approved. Attorney Sweta Khandelwal is an expert in the field of immigration law and can also discuss any other visa options that may be available to you. Contact our offices today to get started on filing your H-1B for the 2015-2016 cap!
Fiscal Year 2016 H-1B Cap- You’ve Been Warned, Now Here Are This Year’s Key Dates, The National Law Review, January 23, 2015
H-1B Fiscal Year (YR) 2015 Cap Season, USCIS, January 5, 2015
Special Visa Categories for Canadians
Despite the media attention surrounding immigration from Mexico, it’s important to remember that the United States shares a border to the north with Canada as well. Given Canada’s proximity to the United States, it is no surprise that there are some special requirements and restrictions for Canadians seeking entry into the United States, even though Canadians can receive status to all of the more common visa categories.
It is important to note that there is a difference between a visa and a status. A visa is merely a placeholder in the line to obtain status. A visa is much like a plane ticket –you have a seat reserved on the plane, but a person can be stopped or prevented from boarding the plane for a number of reasons. Similarly, applying for a visa means a person is applying for a spot in line into the US, and receiving a visa that means the spot in line is secure. However, that same person may not be granted status despite having a visa and can still be turned away.
Thus, for Canadian citizens, they do not need a visa unless they are seeking E, K, S, or V nonimmigrant status. However, they must still obtain the status necessary. For example, although a Canadian citizen need not seek an F-1 visa to study in the United States, they must still satisfy all of the F-1 status requirements in order to study in the United States.
Also, under the Visa Waiver Program, Canadians can seek entry into the United States without a visa if they meet certain conditions. The travelling Canadian must be a Canadian citizen, not a permanent residence or other status under Canadian laws. If travelling by air or sea, the Canadian citizen must also show proof of a return ticket. The Canadian citizen must also be traveling to the United States for transit, tourism, or a short term business visit. They cannot seek extensions of their stay past the approved stay period, but can adjust status if based on marriage to a US citizen or an application based on asylum.
There is also a special TN status available to Canadians and Mexicans as well.
The TN status is similar to the H-1B status, but there are some advantages and disadvantages. The advantage is that receiving TN status can be much faster as it can be dealt with at the border and not through USCIS. Also, it is not subject to any visa limitations, while the H-1B visa is subject to its visa cap. However, one disadvantage is that the TN status does not allow for the Canadian citizen to adjust status to a green card, while an H-1B visa does.
If you are a Canadian citizen and have questions about seeking entry in the United States or have general immigration questions, contact our office to consult with attorney Sweta Khandelwal.
Advanced Parole or H-1B?
It is a stressful, but rewarding, time when a noncitizen finally begins their adjustment of status process to obtain a green card. Not only are many of the visa restrictions lifted, but it also allows for more frequent travel in and out of the United States. This article will explore some of the issues, however, of traveling with a pending I-485 adjustment of status application with USCIS.
The old law required a foreign national to obtain an Advance Parole document to travel outside the US while the I-485 was filed and still pending adjudication with USCIS. However H-1B, L, and K-3/K-4 (but not K-1/K-2) visa holders with a pending I-485/Adjustment need not seek advanced parole before travel. However, there is no harm in obtaining one, and in fact a memorandum put out by USCIS states that it is the alien’s prerogative to present either the advanced parole document or their H-1, L, or K-3/K-4 visa papers to evidence proper entry into the United States. If the noncitizen presents both, however, the reviewing officer should take the visa papers instead of the advanced parole document and inform the noncitizen that they don’t need the advanced parole document.
If the noncitizen re-enters the United States by using the Advanced Parole document instead of his or her visa papers, it does not negate their H-1B status. Thus, when a nonimmigrant is attempting to adjust status to obtain a green card, there is no break in the requirement to continuously maintain valid nonimmigrant status. For all intents and purposes, the H-1B status is continuously maintained and H-B beneficiaries have gone on to successfully obtain extensions premised on a valid underlying H-1B visa. Even if there were to be some question about this, the Act specifically creates a safe harbor exception for “technical violations,” which this situation would fall under. It would be incongruous for the noncitizen to be considered “out of status” when using an Advanced Parole document to re-enter the United States, but still allow him or her to obtain extensions on that H-1B visa.
If you have questions about your visa and the effect of obtaining an Advanced Parole document, contact our office today for more information or to speak with an attorney.
Visas and Residency for UC Tuition Purposes
It is no secret that many immigrants are young students seeking to attend the United States’ top universities. Many of these universities are in California, but California universities’ out-of-state tuition rates can be prohibitively expensive. What is considered a “resident” for California university tuition purposes has some interplay with immigration laws. This article will explore some of them here, based on the University of California tuition guidelines.
For UC tuition purposes, California has two requirements to satisfy: a physical presence requirement and an intent requirement. However, for noncitizens who hold nonimmigrant visas (H-1B, F-1, etc.) there are a specific list of visas that will not be able to satisfy either of these requirements. Some common examples are B-1/B-2, F-1, F-2, or H-1B visas. These nonimmigrants must change their status to another visa type or adjust status to obtain legal permanent residence status (i.e., a green card).
However, even if one has a green card or have a qualifying nonimmigrant visa, it does not mean they automatically qualify for “residence” status under the UC tuition guidelines. They must still satisfy the two requirements set out above: physical presence and an intent to be a California resident. Sometimes, nonimmigrants and green card holders may spend significant amounts of time abroad for many reasons. Even if such a noncitizen buys a home in California and pays California taxes, the existence of other homes in other states or abroad may cause the University of California to question whether the student and his or her family intend to make California their home.
More specifically, a person must spend at least 366 days (1 day and 1 year) in California to satisfy the physical presence requirement. Some breaks for travel are acceptable, but large breaks in the 366 day requirement may cause problems with obtaining California residence status. Also, for the intent requirement, this is a fact specific inquiry that depends on each individual case. Some examples of documents that will help satisfy the intent requirement are sale records of previous homes, evidence of a place of residence in California, receipts, employment records, having a California driver’s license, and registering to vote in California. These are again just examples and an attorney should assess the entirety of the situation.
Another issue for young noncitizens attempting to become California residence for UC tuition purposes is the relationship they have with their parents. Often, even if the student lives in California, if the parents are residing elsewhere then it may prevent being considered a California resident. One way around this is to show that the student is wholly financially independent and need not depend on his parents for financial assistance, but this is a rare exception.
If you have questions about the effect your visa or your immigration plans may have on attending a University of California school, or if you have other immigration questions, contact our office today so that we may assist you.
Intermittent Employees and I-9 Issues
Occasionally, a company requires an intermittent employee to complete a certain project or goal. A foreign national on an H-1B or L-1 visa may be employed in the US for a short period of time. . Regardless of how long a particular employee stays or how often they come in and out of the United States, an employee in the United States must comply with I-9 requirements, , even if they are paid by a foreign employer. More details on the I-9 process can be found here
An employer must ensure, at a minimum, that Section 2 of Form I-9 is completed within three days of the employee commencing employment. Sometimes an overseas employee may enter the US for the limited duration of a project and leave US without completing the I-9 Form. In such a situation, the employee must complete the Form I-9 upon their next arrival in the United States. However, this does not always cure the violation; the employer may find themselves in trouble with E-Verify standards.
A common misconception by employers is that rules/laws regarding worksite compliance do not apply to foreign employees. This is not true. Although for an employee on a foreign payroll the missing Form I-9 may not come up in an I-9 audit, the Immigration and Customs Enforcement may find it in their own audit; or if company tax records are scrutinized.
On a separate note, complying with the IRS tax requirements for both the employer and employee can be a very complicated process, requiring an analysis of the employee’s primary residence, the days spent in the United States, current income tax guidelines, the employee’s income, and other factors. It is imperative to check with a CPA.
Having a foreign employee work in the US requires the assistance of an expert immigration attorney, irrespective of the duration of employment in the US. Contact our office if you need assistance with hiring a foreign employee, I-9 compliance, or any other immigration issues.