Articles Posted in Non Immigrant Visa

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.

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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?

students-1197349-mIf 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.

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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 combat  immigration 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.

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President Obama’s “Immigration Accountability Executive Action” proposes several changes to the immigration system many of which could affect employment-based visas. The proposed changes could be good news for employees and employers by decreasing wait times for certain classifications, allowing spouses of H-1B visa holders to work and in some cases increasing the amount of time a employee can remain on his visa.

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The employment-based changes will affect green cards, H-4, L-1B, OPT and PERM classifications.

Ex
ecutive Action re Pre-Registration for Adjustment Cases
Main proposals:

  • Decrease wait time to file adjustment of status
  • Pre-register for green card and receive green card benefits while waiting for approval
  • Allow the temporary non-immigrant visa holder to change jobs while before green card is approved

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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 possess a four-year bachelor’s degree in a field related to the position; or the applicants must have relevant and required experience to qualify.

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