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ABC’s Of H-1Bs (This Is Part 1 Of An 8 Part Series) H-1B Filing Season (For The 2020 Deadline On April 1St) Gets Into Full-swing For H-1B Employers And Prospective H-1B Employees
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/392778-article-abc%E2%80%99s-of-h-1bs-this-is-part-1-of-an-8-part-series-h-1b-filing-season-for-the-2020-deadline-on-april-1st-gets-into-full-swing-for-h-1b-employers-and-prospective-h-1b-employees-by-kunal-patel#bio”>
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Kunal Patel
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<p>
U.S. Citizenship and Immigration Services on Dec 6, 2019, announced a
requirement for employers seeking to file H-1B cap-subject petitions,
including those eligible for the advanced degree exemption, to first
electronically register and pay the associated $10.00 H-1B registration fee
before filing a petition for the fiscal year 2021 H-1B cap. USCIS will open
an initial registration period from March 1 through March 20, 2020.
</p>
<p>
? During this initial registration period, prospective petitioners or their
authorized representatives must electronically submit a separate
registration naming each alien for whom they seek to file an H-1B
cap-subject petition.
</p>
<p>
? If a sufficient number of registrations are received, USCIS will randomly
select the number of registrations projected as needed to reach the H-1B
numerical allocations after the initial registration period closes and no
later than March 31, 2020. Prospective petitioners with selected
registrations will be eligible to file a cap-subject petition only for the
alien named in the registration.
</p>
<p>
USCIS will not consider a cap-subject petition properly filed unless it is
based on a valid registration selection for the same beneficiary, and the
appropriate fiscal year. Additionally, although petitioners can register
multiple aliens during a single online submission, duplicate registrations
for the same beneficiary in the same fiscal year will be discarded.
</p>
<p>
What does this mean for the immigration practitioners, professionals, and
prospective H-1B employers and employees? To better prepare for the
<a href=”https://visaserve.com/lawyer/H-1B-Visas_cp14934.htm”>
H-1B cap season
</a>
, this article endeavors to summarize a few practice pointers that every
prospective H-1B employer and employee needs to know.
</p>
<p>
<strong></strong>
</p>
<p>
<strong>
Limited Numbers: Not 65,000; There Are Only 58,200 Regular H-1B Visas.
</strong>
</p>
<p>
The current annual cap on the H-1B category is 65,000. However, all H-1B
nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas
are set aside from the cap of 65,000 during each fiscal year for the H-1B1
program designed specifically for the Nationals of Chile and Singapore.
Unused numbers in the H-1B1 pool are made available for H-1B use for the
next fiscal year. Thus, in effect, only 58,200 H-1B visas are granted each
year with the exception of the 20,000 additional H-1B visas which are
reserved for individuals who have received a master’s or higher degrees
from a U.S. college or university. In an upcoming article, we will discuss,
in detail, whether or not every master’s degree from a U.S. academic
institution qualifies an individual for the H-1B master’s cap.
</p>
<p>
Because of the limited number of H-1B visas, employers should identify
individuals who would need H-1B sponsorship. This will allow sufficient
time for petition preparation, including the time required to file and
receive certification of the Labor Condition Application (LCA), Form ETA
9035. Thus, formulating a strategy for an H-1B petition is key to hiring an
H-1B employee for the next USCIS fiscal year which begins on October 1st,
2019.
</p>
<p>
<strong>How Long Will USCIS Accept H-1B Petitions?</strong>
</p>
<p>
With the new H-1B Online registration period starting from March 1, 2020,
if a sufficient number of registrations are received, USCIS will randomly
select the number of registrations projected as needed to reach the H-1B
numerical allocations after the initial registration period closes and no
later than March 31, 2020. USCIS will provide guidance on how to use the
registration system and prepare registrations before opening the
registration system for the initial registration period.
</p>
<p>
<s>
</s>
</p>
<p>
<strong>
Refrain From Submitting Multiple H-1B Registrations For the Same
Employee.
</strong>
</p>
<p>
An employer may not submit more than one H-1B registration for each
prospective employee during the fiscal year. This limitation also precludes
an employer from filing multiple petitions for different jobs for the same
employee but does not preclude related employers (e.g., parent and
subsidiary companies or affiliates) from filing petitions for the same
beneficiary. However, the employer must demonstrate a legitimate business
need to do so and, if it fails to meet that burden, all petitions on behalf
of the beneficiary will be denied or revoked.
</p>
<p>
<strong>
Both the Proffered Position And the Prospective H-1B Employee Should
Qualify.
</strong>
</p>
<p>
Not only the prospective employee but also the proffered position should
qualify for the H-1B visa. For a proffered position to qualify for an H-1B
visa, it must be a job in a “specialty occupation”. “Specialty occupation”
is an occupation that requires: (1) a theoretical and practical application
of a body of highly specialized knowledge; and (2) attainment of a
bachelor’s or higher degree in the specific specialty (or its equivalent)
as a minimum for entry into the occupation in the United States.
</p>
<p>
The H-1B regulations further require that a position also meet one or more
of the following criteria in order to qualify as a specialty occupation:
(1) a baccalaureate or higher degree or its equivalent is normally the
minimum requirement for entry into the particular position; (2) the degree
requirement is common to the industry in parallel positions among similar
organizations; (3) the employer normally requires a degree or its
equivalent for the position; (4) the nature of the specific duties are so
specialized and complex that knowledge required to perform the duties is
usually associated with the attainment of a baccalaureate or higher degree.
</p>
<p>
Therefore, in order to qualify as a “specialty occupation,” a proffered
position must: (1) require a theoretical and practical application of a
body of highly-specialized knowledge; (2) require a bachelor’s degree or
higher in the specific specialty (or its equivalent) as a minimum for entry
into the occupation; and (3) meet at least one of the four criteria listed
above.
</p>
<p>
For a prospective employee to qualify for the proffered H-1B position,
regulations specify that he/she should have one of the following: (1) full
state licensure to practice in the occupation (if required); (2) completion
of the degree required for the occupation; or (3) progressively responsible
work experience in the specialty equivalent to the completion of such
degree. Thus, a general degree absent specialized experience may be
insufficient because there must be a showing of a degree in a specialized
field.
</p>
<p>
<strong>
The Filing Fee Depends Upon the Type And Size of H-1B Employer.
</strong>
</p>
<p>
Initially, Employer will need to pay the H-1B registration fee in the
amount of $10.00. Aside from the H-1B legal fee, the employer will also
need to pay the USCIS filing fees. The amount of the H-1B filing fee
depends on the size and type of employer. All employers are required to pay
the base filing fee for the H-1B petition which is currently $460.00.
Additionally, pursuant to the American Competitiveness and Workforce
Improvement Act (ACWIA), employers are required to pay an additional fee
(commonly referred as ACWIA fee) of $750.00 or $1,500.00 unless exempt
under Part B of the H-1B Data Collection and Filing Fee Exemption
Supplement.
</p>
<p>
A sponsoring employer is required to pay a fee of $750.00 if it employs 25
or fewer full-time equivalent employees. In all other cases, the employers
need to pay $1500.00. Employers such as institutions of higher education;
nonprofit organizations or entities related to, or affiliated with an
institution of higher education; nonprofit research organization or
governmental research organization, etc. are exempt from paying the ACWIA
fee. Additionally, employers seeking initial approval of an H-1B must pay a
$500.00 Fraud Prevention and Detection fee as mandated by the H-1B Visa
Reform Act of 2004.
</p>
<p>
Additionally, as a result of the FY2020 Omnibus Appropriations Bill passed
on December 18th, 2015, the supplemental fee for H-1B petitions are
increasing for companies that employ 50 or more employees in the United
States and have more than 50 percent of their U.S. workforce in H-1B, L-1A,
or L-1B nonimmigrant status. Specifically, the previously expired fees H-1B
petitions will increase from $4,000. These supplemental fees must be paid
on initial and extension petitions. Further, either the employer or
employee can pay an optional premium processing fee of $1,225.00 to
expedite the adjudication of a petition. For the past two years USCIS
suspended premium processing service.
</p>
<p>
<strong>Be Aware of Salary and Benching Costs.</strong>
</p>
<p>
A prospective employer must obtain an approved Labor Condition Application
(LCA) from the U.S. Department of Labor (DOL). The employer attests on the
LCA that the H-1B nonimmigrant worker will be paid wages which are at least
the higher of the actual wage paid by the employer to all other individuals
with similar experience and qualifications for the specific employment in
question OR the prevailing wage level for the occupational classification
in the area of intended employment. Thus, not to undercut wages paid to the
comparable U.S. workers, Congress has included a safeguard in the H-1B
program. Additionally, and in some cases the employers are required to pay
the costs for the petition process. The wage offered to the prospective
H-1B nonimmigrant may drive whether or not the employer is or is not
required to pay for the H-1B visa process.
</p>
<p>
Regulations require that employers must begin paying LCA-stated wages when
the employee “makes him/herself available for work” but not later than 30
days after employee’s entry into the United States (if the prospective H-1B
employee is outside the U.S.) or 60 days from the date that USCIS grants a
Change of Status (if the prospective H-1B nonimmigrant is inside the U.S.).
Liability begins to accrue when the person “enters into employment” with
the employer. Thus, even if the worker has not yet “entered into
employment,” when the H-1B worker is present in the U.S. on the date of the
approval of the H-1B petition, the employer is required technically to pay
to the worker the required wage beginning 60 days after the date the H-1B
worker becomes eligible to work for the sponsoring employer. The H-1B
worker becomes “eligible to work” for the employer on the date set forth in
the approved H-1B petition filed by the employer.
</p>
<p>
An employer must continue to pay an H-1B employee who is not working due to
a nonproductive status at the direction of the employer (e.g., this is
referred to as “benching” because of lack of work, lack of a permit or
license). This regulation applies even if the H-1B employee is receiving
training (either provided by the employer or through some other external
arrangement at the direction of the employer). Thus, the employer is liable
for both nonproductive time as well as productive time once the employee
becomes eligible for work. Employers who do not pay non-terminated H-1B
employees may face civil penalties. Employers are generally advised to pay
an H- 1B employee his or her salary as listed on the LCA until that
employee has been terminated and the USCIS has been notified of the request
to withdraw the H-1B Petition. Furthermore, if the H-1B employee is
terminated prior to the end of the period of admission, the employer should
withdraw the H-1B and may be liable for “the reasonable costs of return
transportation” to return the foreign national home.
</p>
<p>
<strong>
Compliance Issues: Posting Notice of the LCA & Maintaining Public
Access Files.
</strong>
</p>
<p>
Notice of the LCA must be posted, or where there is a union it must be
given to the union, before filing the LCA. The notice may be the LCA itself
or a document of sufficient size and visibility that indicates: (1) that
H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational
classification; (4) the wages offered; (5) the period of employment; (6)
the location(s) at which the H-1Bs will be employed; and (7) that the LCA
is available for public inspection. The notice should state where
complaints may be filed. Notice must be posted at two conspicuous locations
at place of employment where any H-1B nonimmigrant will be employed and the
notice shall be posted on or within 30 days before the date the LCA is
filed with the U.S. DOL and shall remain posted for a total of 10 days.
</p>
<p>
Notice may be posted in areas where wage and hour and OSHA notices are
posted. An employer may also provide electronic notice to employees in the
“occupational classification” for which H-1Bs are sought, through any means
it normally uses to communicate with employees including a home page,
electronic bulletin board or e-mail. If accomplished through e-mail it
needs only to be sent once; other electronic forms (e.g., home page) should
be “posted” for 10 days. Notices must be posted at each worksite including
ones not originally contemplated at the time of filing but which are within
the area of intended employment (same MSA- Mean Statistical Area) listed on
the LCA.
</p>
<p>
Additionally, an employer must maintain a group of documents referred to as
a Public Access File (PAF). The PAF must be accessible to interested and
aggrieved parties. The PAF must be available at either the employer’s
principal place of business or at the worksite. An interested party is one
that has “notified the DOL of his or her/its interest or concern in the
administrator’s determination.”
</p>
<p>
The PAF must be available within one day after the LCA is filed with all
supporting documentation including: a copy of the completed LCA;
documentation which provides the wage rate to be paid; a full, clear
explanation of the system used to set the “actual wage”; a copy of the
documentation used to establish the prevailing wage; copy of the notice
given to the union/employees; and a summary of the benefits offered to U.S.
workers in the same occupational classification, and if there are
differences, a statement as to how differentiation in benefits is made
(without divulging proprietary information).
</p>
<p>
<strong>
Demonstrate Sufficient Level of “Control” Over Prospective H-1B
Employee(s).
</strong>
</p>
<p>
In order for the H-1B petition to be approved by USCIS, a petitioning
employer must establish that an employer-employee relationship exists and
will continue to exist throughout the duration of the requested H-1B
validity period. Hiring a person to work in the United States requires more
than merely paying the wage or placing that person on the payroll of the
H-1B petitioning organization. In considering whether or not there is a
valid “employer-employee relationship” for the purposes of H-1B petition
adjudication, USCIS must determine if the employer exercises a sufficient
level of “control” over the H-1B employee.
</p>
<p>
Thus, the prospective H-1B petitioner organization must be able to
establish that it has the “right to control” when, where, and how the
prospective H-1B nonimmigrant beneficiary will perform the professional and
specialty occupation job. USCIS considers various factors in making such a
determination (with no one particular factor being decisive).
</p>
<p>
For more information about the H-1B nonimmigrant work visa process or to
consider H-1B nonimmigrant work visa options, the immigration and
nationality lawyers and attorneys at the Nachman Phulwani Zimovcak (NPZ)
Law Group, P.C. invite you to visit them on the web at
<a
href=”https://visaserve.com/lawyer/2018/12/14/H-1B-Visa/www.visaserve.com”
>
www.visaserve.com
</a>
or to email them at info@visaserve.com or to call the firm at 201.670.0006
(x107).
</p>
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About The Author<br/>
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<p>
<a><b>Kunal Patel</b></a> is a management Analyst at Nachman Phulwani Zimovcak Law Group, P.C. – Immigration and Nationality Law.</p>
<p><hr/>
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