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!
On March 30, 2021, the USCIS completed the H-1B lottery and announced that it received enough H-1B registrations to reach H-1B cap for the fiscal year 2022. What options do you have if you were not amount those who were selected?
First of all, you are eligible for selection in any subsequent selection for FY 2022. For example, some selected registrants may not file their petitions.
Depending on your situation, you may be eligible for other types of visas or status. Your employer may file for your employment-based green card (permanent legal resident status) if he can show that there are no U.S. workers available, willing and qualified for the job. Certain professionals from Mexico or Canada may qualify for TN visa. If you are the entrepreneurial type and are from certain countries, you may be eligible for E-2 (treaty investor) or E-1 (treaty trader) visa. If you have extraordinary ability in the sciences, arts, education, business of athletics, you may apply for O visa.
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.
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.
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.
A real estate technology based company (Company) with a unique platform wanted to hire a foreign worker from India with a US Master of Science degree in Mechanical Engineering currently on H-1B visa for a position of a Technical Product Manager. The Company needs him to design and implement its full line of products. We filed the petition just before the worker’s H-1B status expired.
The Company and worker provided all documents necessary to show that all H-1B requirements are met and the H-B petition was approved in ten weeks without any delays or request for evidence.
Please note that this articles does not constitute a legal advice. We outlined one case study changing an H-1B employer. 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.
On June 22, 2020, President Trump signed a proclamation suspending and limiting the U.S. entry of foreign nationals on H-1B, H-2B, J (as intern, trainee, teacher, camp counselor, au pair, or summer work travel program) and L visas and any individuals accompanying or following to join them.
The proclamation applies to those who are outside the U.S. on June 24, 2020 and do not have such non-immigrant visa or official travel document that is valid on that day.
The suspension and limitation on entry does not apply to lawful permanent residents, spouses and children of the U.S. citizens, essential workers, individuals whose entry would be in the national interest.
The proclamation shall expire on December 31, 2020, and may be continued.
Please note that this article does not constitute a legal advice. We simplified the law in order to outline the Proclamation. If you would like to discuss how does this Proclamation affect you, call our experienced Immigration Attorney at 480-425-2009 or contact an experienced Immigration Attorney via our website to schedule a consultation. We look forward to talking with you and helping you analyze the effect of the Proclamation and your alternatives.
My client is a global marketing and branding company and
filed a H-1B petition for a position of an Interior Designer. The H-1B registration was selected in the
H-1B lottery. The Client was very
cooperative and provided all documents necessary to show to the USCIS
satisfaction that the Interior Designer is a specialty occupation according to
the regulations. In this case, the Petitioner (Client) normally requires a degree
or its equivalent for the position and a baccalaureate or higher degree or its
equivalent is normally the minimum
requirement for entry into the position of the Interior Designer. The position
of the Interior Designer is also so complex
that it can be performed only by an individual with a degree.
The client provided documents related to the position and showing that the Beneficiary (Employee) meets the requirements for the position. The Beneficiary has a Master of Interior Architecture and has been working for the Client as a junior Interior Designer on her OPT. My client was very happy to receive the approval just in 3 weeks, especially for entry level position. Congratulations!
Please note that this case study 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 visa 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