Articles Tagged with H-1B

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There is never a lack of surprises in the immigration world.  Recently, in addition to the unveiling of the President’s new executive order, USCIS announced that the agency would be temporarily suspending the premium processing program for H-1B petitions.  Beginning on April 3, 2017, and continuing for as long as six months, USCIS will not accept premium processing requests for H-1B petitions.

What is the Premium Processing Program?

Premium processing is an optional service offered by USCIS for certain eligible applications for immigration benefits.  To make use of premium processing, the petitioner must request the service using the Form I-907 and provide USCIS with an extra fee of $1,225, which is in addition to any other filing fee the petitioner may have already paid.  Once USCIS receives these materials, the agency will adjudicate the underlying application within 15 business days.  Since the normal processing time for some petitions is more than one year, the premium processing option has become more and more attractive in recent years.

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It’s been a long wait from April 1 to October 1, but as of the first day of this month, those lucky 80,000 foreign nationals whose H-1B petitions were selected in the lottery became eligible to take up their employment with their U.S. employers.  Now that the H-1B employment has begun, employees and companies should take care to fulfill a number of responsibilities to make sure they are in compliance with the H-1B

Employers’ Responsibilities

The most important responsibility for the employer is making sure that all H-1B employees have completed I-9s on file with the employer’s place of business.  The I-9 contains biographic and work authorization information for each employee and is required for each employee, regardless of nationality or citizenship status.

The second-most important responsibility is maintaining the Public Access File (PAF). Each H-1B employee must have a Public Access File that contains specific information and documentation, such as a copy of the certified Labor Conditions Application that was filed with the U.S. Department of Labor, the source for the H-1B position’s prevailing wage, and a summary of the benefits offered to U.S. and H-1B workers.  The PAF should be readily accessible should USCIS visit the employer’s place of business in order to conduct a site visit.

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by Ken Robinson

hibThe H-1B visa is a visa classification used by some foreign national who will be temporarily employed–full- or part-time–in a specialty occupation by an employer.  A specialty occupation is one which requires a theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree or its equivalent related to the occupation.  For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are all areas in which specialty occupations are routinely found.  But what about, say, fashion designers?  Does someone who designs t-shirt graphics for a multinational company qualify as someone in a specialty occupation?

Restaurant/hospitality managers?  Marketing professionals?  The Service makes employers–and their immigration counsel–jump through hoops in order to demonstrate that the position qualifies as a specialty occupation.  This creates an evidentiary burden for employers which is overly cumbersome, with the net effect of creating obstacles to employment where none ought to be.  We recognize that employers should demonstrate that an employee qualifies for a specialty occupation.  But, cases from just two years ago, where the H-1B was readily granted, are now generating undue inspection from the Service.  That’s problem number one.