H-1B visas

On January 8, 2010, USCIS issued a very troublesome Memo which changed decades of immigration law. The Memo changed the definition of “employer” for immigration petitions in a way that makes it more difficult for owners of companies to obtain non-immigrant visas. It also makes it more difficult for computer consulting companies to obtain H-1B visas for their consultants. The complaint, which includes an application for preliminary injunction, was filed in the United States District Court for the District of Columbia. Hopefully, this lawsuit will lead to a settlement or a favorable verdict so that the more unreasonable aspects of this Memo will be ameliorated.

According to USCIS, as of May 11, 2010, a total of 25,600 H-1B cap petitions have been received. Of these 7,600 are in the master’s cap for which 20,000 H-1Bs are available, and 18,000 are in the regular cap for which 65,000 H-1Bs are available.

As of April 22, 2010, USCIS had allotted 16,025 H1Bs from the 65,000 available in the general allotment, and 6,739 H1Bs from the additional 20,000 available for individuals who have completed an advanced degree in the U.S.

Immigration lawyers around the country continue to report issues and problems caused by USCIS’ January 8, 2010 memo redefining employer-employee relationships for adjudication of H-1B petitions. Of particular concern is the memo’s focus on consulting companies and arrangements as well as its focus on employer-owners. Some of the interpretations set forth in the memo have also been applied to other types of visa categories.

On March 19, 2010 the American Immigration Lawyers Association National Office submitted a response to the January 8th memo expressing its serious concerns regarding these issues. Hopefully USCIS will back off the new interpretations contained in the memo which reversed decades of established precedent.

April 1st marks the beginning of the H-1B Visa “season” whereby USCIS will start accepting applications for the next fiscal year. Last year the H-1B cap numbers were not exhausted until early December due to the recession. No one can predict how long the numbers will last this year so we urge our clients to contact us as soon as possible to commence work on H-1B applications.

As of August 14, 2009, USCIS had received approximately 45,000 H-1B cap-subject petitions. Accordingly, there are still a significant number of H-1B numbers available for the 2010 fiscal year which starts October 1, 2009.

Contact Stern & Curray LLC if you have any questions.

We have received reports from our clients and through immigration circles about the increasing number of H-1B audits, especially site visits. A typical audit involves an investigator appearing at an employer’s office with a list of questions to be answered. The audit can also include a review of the terms and conditions set forth in the H-1B petition to make sure the reality is in sync with these provisions. Accordingly, it is important for H-1B employers to make sure their documentation is in order and that the terms and conditions of the H-1B beneficiary’s employment is consistent with the provisions set forth in the H-1B petition.

The U.S. Department of Labor (DOL) and U.S. Citizen and Immigration Services (USCIS) are Increasing H-1B Audits and Random Site Visits this Year

The Department of Labor has announced that it has hired 250 new investigators and a primary responsibility for these investigators is to audit companies who have filed H-1B visas. These audits will focus on confirming that the individual is working at the described location, at the required wage, and performing the position described in the H-1B application.

Additionally, USCIS has received significant funding for a substantially increased volume of random site visits. USCIS, through the “fraud fee,” has engaged outside contractors to conduct thousands of random site visits to petitioners. Many of these visits are expected to occur after approval of the H-1B petition. Reports are that employers are receiving these visits, most with no notice, and many selected randomly.

During the webinar, we will address how to best prepare in advance – in the event your organization receives an audit from DOL or a random site visit from USCIS.

Free Webinar:
Wednesday, August 26, 2009
10:00 – 11:00 am (MDT)

Please RSVP at: https://www2.gotomeeting.com/register/112591122

When you RSVP, you will be provided with the call-in and log-in information.

This webinar has been approved for 1.0 (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

Please feel free to forward the email to colleagues who may be interested in this webinar also.

If you have any questions please contact us at 303-407-4100.

As of May 22, 2009 there has been approximately 45,700 H-1B cap-subject petitions filed with USCIS. Apparently, USCIS has received approximately 20,000 petitions for the “Master’s Cap.” Therefore, there are still close to 20,000 cap numbers available in the general pool. Individuals who are considering filing for H-1B status this year should, however, file their applications as quickly as possible.

Extensions beyond six years

USCIS has made it clear that if an individual is attempting to extend his/her H-1B status beyond six years based on the filing of a labor certification, the labor certification will expire unless an I-140 form is filed. Generally speaking, the filing of a labor certification prior to the expiration of five years of H-1B status will allow an individual to extend his/her H-1B status beyond six years. If the labor certification is approved, an I-140 must be filed within 180 days. If an I-140 is not filed during this time period, the labor certification can no longer be used to extend H-1B status.

If the H-1B beneficiary did not file a labor certification application prior to the end of the fifth year of H-1B status, an extension beyond six years can still be obtained if he or she has an approved I-140 and cannot file for adjustment of status due to a backlog in visa numbers. USCIS has announced that it will expedite I-140 applications under these circumstances.

On a related note, in order for a beneficiary to be eligible for I-485 portability, the underlying I-140 must be approved in addition to demonstrating that the adjustment of status application has been pending for more than six months.

Official termination

There has been a lot of activity in the area of what constitutes an official termination of an H1-B employee. At the annual AILA Conference in Vancouver, at a joint panel with USCIS and DOL, the statement was made that an official termination will not occur until the following four events occur:

– The employee is notified;
– USCIS is notified;
– The employer has made an offer to pay the beneficiary’s transportation to his/her home country; and
– The LCA has been withdrawn.

The requirement of withdrawing the LCA is a new development which is not supported by regulation or case law. In fact, there have been a number of recent cases on this point which do not mention the necessity of withdrawing the LCA. These cases also support our position that return transportation does not need to be paid. Rather, an offer to pay such transportation must be made to the employee. Our practice has always been to inform the employee that if he or she is leaving the United States on a permanent basis and can document his or her transportation costs, the employer will reimburse the H-1B beneficiary for those expenses. Recent case law supports this practice.

Our firm has revamped the way in which we assist employers in terminating H-1B status in order to be in full compliance with these developments.