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What is “cap-gap”?

Where an employer subject to H-1B cap properly files H-1B petition requesting an October 1 start date and a timely change of status on behalf of an F-1 student, student’s F-1 status and employment authorization (if in Optional Practical Training) is automatically extended until September 30, thus eliminating the “gap” between the time the F-1 status would have expired and the October 1 start date of H-1B status. If the H-1B petition is not filed before the OPT expires, the student may not be empoyed again until October 1. Cap-gap does not apply to cap-exempt H-1Bs.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about one aspect of H-1B visa.  If you would like to discuss if you qualify for the cap-gap or need help obtaining H-1B visa, schedule a consultation with an experienced immigration lawyer in Phoenix at www.calendly.com/irena-3 TODAY or call our office at 480-425-2009! We look forward to talking with you!

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New proposed H-1B “wage-based” selection process

The Department of Homeland Security (DHS) proposes to
change the process of selecting H-1B registrations for filing of H-1B cap-subject petitions from a random lottery selection to a wage-level-based selection process.

If more registrations were received during the annual
initial registration period than necessary to reach the
cap, USCIS would rank and select the registrations received generally on the basis of the highest OES wage level in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I

These proposed changes would incentivize petitioners to offer higher wages
to H-1B workers or petition for positions requiring higher skills By changing the selection process, DHS would increase the chance
of selection for registrations or petitions seeking to employ beneficiaries at wages that would equal or exceed the level IV or level III prevailing wage. The DHS data shows that only 28.53% of H-1B petitions received in FYs 2018 and 2019 were filed for level IV and III wages.

The 30-day comments period starts on November 2, 2020.

Please note that this article does not constitute a legal advice.  We simplified the law to outline the proposed changes to H-1B selection process. If you would like to obtain an H-1B status, call our experienced H-1B attorney at 480-425-2009 or schedule your consultation online.

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What are the new H-1B rules?

On December 7, 2020, changes to the H-1B nonimmigrant visa regulations will take effect. The proposed regulations amend the definition of a “specialty occupation” to indicate that there must be a “direct” relationship between the required degree field(s) and the duties of the position. Instead of demonstrating that a bachelors’ degree is “normally”, “commonly” or “usually” required; the bachelor’s degree in a specific specialty or its equivalent needs to be “always” required.

The regulations defines the term “employer-employee relationship”. In addition to considering whether employer has “the right to control” the employee’s work USCIS will also look at whether the employer actually exercises that right to control. The regulations set a 1-year maximum validity period for all H-1B petitions in which the beneficiary will be working at a third-party worksite.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only some proposed changes to H-1B regulations. If you would like to obtain an H-1B status, call our experienced H-1B attorney at 480-425-2009 or schedule your consultation online.

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How will new H-1B prevailing wage increase effect H-1B eligibility?

On October 8, 2020, Department of Labor (“DOL”) published an interim final rule changing its method for calculating the prevailing wage rates in the H-1B program. DOL altered the level 1 prevailing wage from the 17th percentile of the OES wage distribution to 45th percentile on the false
assumption that the wages paid to individuals with a master’s degree represent the entry level wages for H-1B workers. Based on that upward adjustment, DOL increased the level 2 prevailing wage rate from 34th to the 62nd percentile, the level 3 prevailing wage from the 50th to the 78th percentile and the level 4 prevailing wage from the 67th percentile to the 95th percentile.

The upward adjustment of prevailing wage rates results in an overnight increase in wage rates and may likely result in many employers not hiring foreign workers. Lawsuits were filed seeking injunction to stop the DOL interim final rule.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only some proposed changes to H-1B rules. If you would like to obtain an H-1B status, call our experienced H-1B attorney at 480-425-2009 or schedule your consultation online.