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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.

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H-1B petition for a Civil Engineer from India approved in 7 weeks

We filed a H-1B petition on behalf of a US structural and civil engineering services provider. Our client has hired a graduate from an US university with a Master degree in environmental and sustainable engineering as part of the employee optional practical training.

Fortunately, our client was selected in the H-1B lottery. With the petition, we submitted plenty of evidence that this position meets the criteria of a “specialty occupation” defined in H-1B regulations. In this case, we did not have any issue showing to the USCIS satisfaction that the position of Civil Engineer normally requires a degree and that at least a baccalaureate degree is normally the minimum requirement for entry into the position of the Civil Engineer.    In addition, the degree requirement is common to the industry in parallel positions among similar organizations and the position of the Civil Engineer is so complex or unique that it can be performed only by an individual with a degree as evidenced by the beneficiary’s work product.  

Please note that this article does not constitute a legal advice.  We outlined one case study of filing a H-1B petition. If you would like to discuss if you may qualify for H-1B status or you want to change H-1B employer, call our experienced H-1B visa attorney at 480-425-2009 or schedule your consultation online

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H-1B status for an Electrical Engineer from India

Our client, a civil and environmental engineering firm, has hired an Engineer from India who completed a Master degree in Electrical and Computer Networking in the US. She started working for our client as her optional practical training. Our client was very happy with her performance and wanted to petition for her H-1B status.

We guided our client what evidence we need to submit and established that the employee meets the requirements for H-1B status. We have established that the position of the Electrical Engineer requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States and the foreign employee is qualified to perform services in the specialty occupation because she has attained a Master Degree in Electrical Engineering.  Congratulations!

Please note that this case study does not constitute a legal advice.  We simplified the law in order to outline the H-1B requirements.  If you would like to discuss if you may qualify for H-1B status, call our experienced H-1B attorney at 480-425-2009 or contact an experienced H-1B attorney via our website to schedule a consultation. We look forward to discussing how we can help you obtain your H-1B status.

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H-1B visa for a Business Analyst approved

Our client is a citizen of China and was offered a position of a Business Analyst by a manufacturer of body armor safety products. We were happy that we did not have to go to court like other lawyers who had to previously challenge the flawed denial of H-1B petition for the same position. We submitted the court decision directing the USCIS to change status to H-1B and finding that the USCIS has failed to meet the fundamental threshold for rational decision making.

The Business Analyst analyzes sales trends, seasonal trends, inventory to provide insights on ways the business can drive sales and provides tools to the manufacturing, marketing and sales team to better project performance and highest areas of opportunity.

The position of Business Analyst is a specialty occupation as defined in section 214(i)(1) of the Immigration and Nationality Act and 8 CFR 214.2(h)(4)(ii)(A). It meets more than one of the four criteria in 8 CFR 214.2(h)(4)(iii).  Under 8 CFR 214.2(h)(4)(iii), to qualify as a specialty occupation, the position must meet one of the following criteria:

(a) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(b) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(c) The employer normally requires a degree or its equivalent for the position; or

(d) 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.

In this case, we provided evidence that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the position of Business Analyst, the degree requirement is common to the industry in parallel positions among similar organizations and the position of the Business Analyst is so complex or unique that it can be performed only by an individual with a degree. 

Please note that this article does not constitute a legal advice.  We simplified the law in order to outline the H-1B process.  If you would like to discuss if you may qualify for H-1B status, call our experienced H-1B attorney at 480-425-2009 or contact an experienced H-1B attorney via our website to schedule a consultation. We look forward to discussing how we can help you obtain your H-1B visa.