The 12 Notes of H-1B Sponsorship: What U.S. Employers Should Know About the H-1B Lottery

The 12 Notes of Christmas H-1B Sponsorship: What U.S. Employers Should Know About the H-1B Lottery

The holidays are just around the corner, closely followed by the H-1B lottery during the first week of April. Though the deadline may seem far off, now is when U.S. employers should begin to consider which foreign workers they would like to sponsor for an H-1B visa. Below are 12 things that U.S. employers should know about the H-1B lottery:

  1. The foreign worker must be sponsored for a specialty occupation. A specialty occupation is one that requires “theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty”. Degrees in business are usually excluded from being a specialty occupation.
  2. There are 65,000 slots in the H-1B lottery for foreign workers only holding a bachelor’s degree.
  3. There are 20,000 additional slots for foreign workers holding a master’s degree from a college or university in the U.S. These workers are entered in both the bachelor’s lottery and the master’s lottery. The master’s degree must be in a field related to the sponsored position.
  4. The U.S. employer must be prepared to pay the prevailing wage, as determined by the government. The U.S. Department of Labor determines how much U.S. companies must pay H-1B visas holder based on their occupation in a metropolitan statistical area. Level 1 wages have received a lot of scrutiny from the government in the past few months and should be bumped to Level 2 wages, if possible.
  5. It may take until the end of June to know if a foreign worker was selected in the H-1B lottery.
  6. If the U.S. employer’s H-1B petition is not selected in the lottery, then the government filing fees are returned.
  7. Premium Processing is an option, for now. Premium Processing was suspended during the most recent H-1B lottery but has been permitted for the upcoming H-1B lottery. Premium Processing costs $1,225 and requests that the USCIS respond to the petition within 15 calendar days of being selected.
  8. Although the lottery takes place in April, the earliest the foreign worker can start work is October 1. Foreign workers may not start before October 1 (unless they are covered by the Cap Gap) and must hold an H-1B approval notice before beginning work.
  9. The maximum stay for a foreign worker in H-1B status is 6 years, unless the company begins the process of sponsoring the foreign worker for a green card. Foreign workers who hold an approved I-140 may renew their H-1B status in 3-year increments until they have their green card in hand.
  10. H-4 visa holders (spouses and dependents of H-1B visa holders) cannot work unless the H-1B spouse holds an approved I-140.
  11. Requests for Evidence (“RFEs”) are likely and may delay the process. A recent policy change at the USCIS has led to increased scrutiny for H-1B petitions. This means that more RFEs are being issued, which can increase the cost and processing time of H-1B petitions.
  12. H-1B visas put foreign workers in a good position to transition into the green card process. There is no dual-intent issue with foreign workers going from H-1B visa holders to green card holders.

Happy holidays from our firm. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

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USDOS Announces December Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an applicant may file for permanent residency during the month of December 2017.

Category Country of Chargeability Priority Date Comment
EB-1 Worldwide Current Unchanged
EB-1 China           Current Unchanged
EB-1 India           Current Unchanged
EB-1 Mexico Current Unchanged
EB-1 Philippines Current Unchanged
EB-2 Worldwide Current Unchanged
EB-2 China July 1, 2013 Advanced 2 weeks
EB-2 India November 1, 2008 Advanced 3 weeks
EB-2 Mexico Current Unchanged
EB-2 Philippines Current Unchanged
EB-3 Worldwide Current Unchanged
EB-3 China March 8, 2014 Advanced 5 weeks
EB-3 India October 15, 2006 Unchanged
EB-3 Mexico Current Unchanged
EB-3 Philippines January 15, 2016 Unchanged

 

 

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USCIS Increases Scrutiny for Nonimmigrant Extension Petitions

In a policy memorandum dated October 23, 2017, the USCIS announced that it has instructed its adjudicating officers to apply the same level of scrutiny to both initial petitions and extension petitions for H-1B, L-1, TN, and other nonimmigrant categories. This is a significant change from the USCIS’ previous policy, which did not allow officers to readjudicate extension petitions that had already been approved in initial petitions. Adjudicating officers may now readjuciate the beneficiary’s eligibility for a nonimmigrant classification at the time the extension is requested, even if this there has been no change in facts regarding the foreign worker’s job position, job location, etc.

Under the previous policy, USCIS officers were required to give deference to past approvals unless:

  1. There was a substantial change in circumstances that affected the beneficiary’s eligibility for the nonimmigrant classification,
  2. The agency made a material error in the previous approval, or
  3. The new information adversely affected a beneficiary’s eligibility for the nonimmigrant status.

In the new policy, previously approved petitions no longer receive deference by adjudicating officers. As a result, employers should expect a significant increase in Requests for Evidence. With each officer expected to weigh the facts of each case, additional Requests for Evidence will likely be issued requesting more information about job duties, job classification, job location within the company’s organizational structure, job requirements, and the employer’s ability to pay the prevailing wage. Companies should expect increased scrutiny regarding company financials, specifically regarding their tax records and annual reports. For H-1B petitions in particular, Requests for Evidence may also include requesting that the employer provide a detailed list of other positions that it currently sponsors in H-1B status. This Request will be for the USCIS to decide whether the position under scrutiny truly qualifies as a specialty occupation and/or whether the company can pay the prevailing wage of all of the sponsored positions at once.

In addition, an increase in Requests for Evidence often means longer processing times. Presently, premium processing is available for H-1B, L-1, and TN petitions. This may be suspended again for certain categories in the coming months.

Our firm will continue to follow this development closely. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

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The Immigration Group, P.C. hires new paralegal, Lydia Ethridge.

The Immigration Group is proud to announce and welcome Lydia Ethridge as a new paralegal. Ms. Ethridge will be responsible for a variety of paralegal tasks within the firm’s nonimmigrant visa and green card practices.

Lydia 2017Ms. Ethridge graduated from summa cum laude Sweet Briar College in 2015 with a Bachelor of Arts in history with highest honors and in French. She received a Master of Arts in history from Georgetown University in 2017.  She is also an alumna of Sweet Briar College’s Junior Year in France and the Université de Paris IV, Paris-Sorbonne (2013-14).  She attends Cross Point Church, is a member of the Alliance Française de Nashville, and volunteers regularly with the Nashville Rescue Mission.

You may contact Ms. Ethridge at 615-340-5000 and lethridge@immigrationgrp.com

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USDOS Announces November Priority Dates For Filing Permanent Residency Applications

The following priority dates determine whether an applicant may file for permanent residency during the month of November 2017.

Category Country of Chargeability Priority Date Comment
EB-1 Worldwide Current Unchanged
EB-1 China           Current Unchanged
EB-1 India           Current Unchanged
EB-1 Mexico Current Unchanged
EB-1 Philippines Current Unchanged
EB-2 Worldwide Current Unchanged
EB-2 China June 15, 2013 Advanced 3 weeks
EB-2 India October 8, 2008 Advanced 3 weeks
EB-2 Mexico Current Unchanged
EB-2 Philippines Current Unchanged
EB-3 Worldwide Current Unchanged
EB-3 China February 1, 2014 Advanced 1 month
EB-3 India October 15, 2006 Unchanged
EB-3 Mexico Current Unchanged
EB-3 Philippines January 15, 2016 Advanced 6 weeks

Dan White leads the law practice at The Immigration Group, focusing exclusively on work visas and green cards for companies and their employees. He is a graduate of Vanderbilt Law School and his writings have appeared in the National Law Journal and the Tennessee Bar Journal. Clients include corporations nationwide and in more than 60 countries.

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Spouses of Employment-Based Visa Holders May Now Apply for Work Authorization and Social Security Number via Form I-765

Spouses of employment-based visa holders who hold H-4, L-2 or E status may now apply for work authorization and a Social Security Number via Form I-765, instead of appearing at a local Social Security Administration office. In order to pursue this streamlined option, spouses must answer a few additional biographical questions on the form. The USCIS expects that applicants should receive their Social Security Card within two weeks after their EAD arrives in the mail.

This new option is especially helpful for H-4, L-2, or E spouse visa holders who are coming to the U.S. for their initial entry in that visa category. In those situations, it is most likely that these visa holders will not have Social Security Cards. H-4, L-2, or E spouse visa holders who have been present in that status for months or years most likely already hold Social Security Cards. This new option will also allow visa holders in these categories to apply for replacement Social Security Cards.

Employment-based nonimmigrants present in E-1/2/3, H-1B, H-1B1, L-1, O, P and TN status, however, may not use this option to apply for Social Security Cards. These visa categories must still appear at a local Social Security Administration office.

Our firm will continue to follow this development closely.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

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Premium Processing Resumed For All H-1B Petitions

The USCIS has resumed premium processing service (“PPS”) today for all H-1B visa petitions. PPS guarantees a 15-calendar day processing time. If the guaranteed time frame is not met, the $1,225 government filing fee is refunded by the USCIS, which will continue with expedited processing of the petition. PPS was suspended on April 3 of this year. Those with regular processing petitions that are still pending may wish to convert to PPS.

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