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Articles Posted in H-1B Visa

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The Chicago immigration lawyers of Zneimer & Zneimer are preparing for the H-1B registration.  The H-1B visa is a type of non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. To qualify for an H-1B visa, the job must meet the following requirements:

  1. Specialty Occupation: The job must require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific field or its equivalent.
  2. Bachelor’s degree or higher: The worker must have completed a U.S. bachelor’s degree or its equivalent in the specific field related to the job.
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The H-1B visa registration process for FY 2024 has not been announced yet.   The immigration lawyers of Zneimer & Zneimer PC are preparing for the registration period to ensure that our clients can successfully register their H-1B visa beneficiaries.  The U.S. Citizenship and Immigration Services (USCIS) typically opens the registration process for H-1B visas in the beginning of the year. The exact dates and details of the registration process are typically announced several weeks in advance by the USCIS. It is important to stay informed about the H-1B registration process and be prepared to submit your application as soon as the registration period opens.  We expect that USCIS will announce the registration process within the next couple of months.  Please complete and send us this H-1B Registration Form if you would like our help.

Employers who wish to sponsor an employee for an H-1B visa must create an H-1B registrant account on the USCIS website. This account allows employers to submit registrations for their employees during the H-1B registration period.

It is important for employers to stay informed about the H-1B registration process and ensure that they are following all requirements set by the USCIS. Following the USCIS’s announcements helps to ensure that the registration process runs smoothly and reduces the risk of errors or complications that could delay or prevent an employee from obtaining an H-1B visa.  To ensure compliance, employers should:

  • stay up-to-date with the latest information and changes to the H-1B registration process and requirements as announced by the USCIS.
  • review and understand the guidelines set by the USCIS for the H-1B registration process.
  • gather all required documents and information for the employee and the employer before the registration period opens.
  • double check all the information and documents for accuracy before submitting the registration.
  • consult with a qualified immigration attorney or a registered agent if in doubt.

By following these steps, employers can help ensure that their H-1B registration is complete and accurate, which will increase the chances of their employees being selected for the H-1B program.

The registrant account will require the employer to provide basic information about their company, including Employer Identification Number (EIN), company name, and contact information. Once the account is created, the employer can use it to register their employees for the H-1B visa program. It is important to note that creating an H-1B registrant account does not guarantee that an employee will be selected for the H-1B program. The number of H-1B visas available is limited and selected through a lottery system.

To ensure proper registration, we typically require the following information for H-1B registration: Continue reading →

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H-1B Chicago Immigration Lawyer

The H-1B visa is a type of non-immigrant visa that allows U.S. employers to employ foreign workers in specialty occupations, such as in the fields of technology, engineering, and science.  The H-1B status permits a foreign worker to live and work in the United States for up to six years, along with the worker’s spouse and children, unmarried and under 21, who receive H-4 status.  Some H-1B workers who are in a process of applying for permanent residence can remain in the U.S. beyond the six-year maximum.  Because immigrant visas are subject to per-country quotas, workers born in oversubscribed countries like India or China may take years, sometimes decades to receive permanent residence.   Our Chicago immigration lawyers like to point out that under current backlogs, a physician born in India will wait over 11 years in line to receive a green card.  In comparison, persons born in countries without backlogs, can immigrate as soon as the paperwork goes through, even if they are not in a professional or a specialty occupation.

If an H-1B worker is laid off, they will generally have to either find a new job and have their H-1B visa transferred to the new employer, or leave the United States.  If the H-1B worker is waiting for a green card and is in a backlogged country, the new employer will have to restart the green card from scratch, but the worker’s place in line will not change because the new petition will receive the earliest filing date from any prior petition.  If the worker is unable to find a new job and their H-1B visa is not transferred to a new employer, they will be out of status and may be subject to deportation.  When a worker falls out of status for more than 180 days, they lose their ability to receive a green card even if they are close to receiving their green card in the line. It’s important for H-1B workers who have been laid off to talk with an immigration attorney to understand their options and ensure that they are in compliance with U.S. immigration laws.

If an H-1B worker is laid off, they may be eligible for a 60-day grace period during which they can remain in the United States and look for a new job. This grace period is known as “60-day portability” and it applies to H-1B workers who have been previously granted H-1B status and who have a new, non-frivolous H-1B petition filed on their behalf within 60 days of their previous H-1B employment ending. This provision Continue reading →

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H-1B Approval Notice

The Chicago H-1B attorneys of Zneimer & Zneimer remind clients and noncitizens that USCIS recently announced the opening of the new H-1B registration period.  The H-1B registrant account function will be available on March 2, 2021, at 12:00 noon EST at myUSCIS. Employers and attorneys who already have MyUSCIS accounts from last year do not need to create new accounts for this year.

To login or to createan account, go to https://my.uscis.gov/, and follow the instructions.  Before starting the process, it is a good idea to watch USCIS’s instructions and check periodically USCIS’s H-1B registration page.  The option to register as H-1B registrant will not become available until March 2, 2021, at 12:00 noon EST.

During the registration period, petitioners and representatives would be able to fill out information about employers and beneficiaries and submit registrations for H-1B petitions.  The registrants must use myUSCIS online account to register each beneficiary.  Each registration will cost $10.00 per person.  To submit H-1B registrations for beneficiaries,  potential petitioners must use the “registrant” account that will be available on March 2, 2021.  If USCIS receives enough H-1B registrations by March 25, USCIS will run H-1B lottery and will send selection notifications via users’ myUSCIS online accounts by March 31.  Remember that submission of duplicate registration by the same petitioner for the same beneficiary will result in denial of the registration.

Only selected registrants will be able to file H-1B cap-subject petitions, and only on behalf of beneficiaries selected through the H-1B Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer PC urge employers to seek sound legal advice from experienced H-1B attorneys to avoid denials of approvable H-1B petitions.  Many cases involve information technology or business positions in new and emerging occupations grouped under the “all other” categories that fail to meet USCIS’s idea of “Specialty Occupation” requirement due to poor communication of the job duties.   When drafting a petition, it is important  to understand the industry, requirements, and the technical terms in order to explain what tasks the job involves, what knowledge the job requires, and why such knowledge is beyond the ken of a person that does not have an academic degree in a specific specialty.  Failure to understand the job itself results in a poorly drafted H-1B petition even though the petition was approvable.  HR departments that used to prepare their own H-1Bs now turn more and more to experienced attorneys to avoid the avalanche of denials.  Some heavy users of H-1B visas saw denials jump from 4% in 2015 to 40% in FY 2019  for H-1Bs for initial employment.
According to USCIS’s the top ten reasons for Requests for Evidence and subsequent denials are:

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The Chicago attorneys of Zneimer & Zneimer PC reviewed the final regulations entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398-01, that the that the Department of Homeland Security published on November 18, 2016.  These regulations interpreted several employment-based sections of the Immigration and Nationality Act, including those regulating employment of non-immigrant workers.

The updated regulations made some changes to the rules applicable to E–1, E–2, E–3, H–1B, L–1, or TN.   They added up to 10 days of admission before the authorized work period begins, and up to 10 days of grace period after the work-authorized period ends.  During these extra 10 days on both ends, the foreign worker may not work.

These extra days at the end of the authorized work period will be helpful to foreign workers and their families if they wish to leave the United States.  However, Chicago attorney Sofia Zneimer cautions, that for workers and employers who wish to continue their work relationship in the United States, these additional days may cause issues if not properly monitored.

One thing to keep in mind is that these extra 10 days are not work authorized.  This means that the employee will have an I-94 card that will include the additional grace period even though this period will not be work-authorized.  Thus, unless both the foreign worker and the HR mangers overseeing the I-9s for their companies are mindful of this added grace period,  they both can get in trouble, if the foreign workers inadvertently works during the grace period relying solely on the expiration of the foreign worker’s I-94.   It is important to remember that the the top of the I-797 Approval Notice will reflect the actual work-authorized period, and not the I-94.  An employee relying solely on the expiration of the I-94, who works during these extra days without authorization, can fall out of status for working without authorization.  By permitting unauthorized work during the grace period, the employer will violate the immigration law subjecting itself to fines and penalties.

Important points for HR managers and foreign workers: Continue reading →

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On March 31, 2017, USCIS rescinded a memorandum from December 22, 2000, called “Guidance memo on H-1B computer related positions.”  According to USCIS rescinding this 2000 memorandum will prevent inconsistencies because it was based on outdated information about computer occupations.  This new policy will affect our clients in Chicago and in other cities and states.

USCIS will now zoom in on computer occupations to scrutinize H-1B petitions for jobs with entry level wages.  According to USCIS, “[t]hrough the wage level, the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties” citing to U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing wage Determination Policy Guidance (Nov. 2009).  An employer cannot offer an entry level wage and argue that the “proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”  Therefore, USCIS will review the Labor Condition Applications to check whether the wage level corresponds to the petitioner’s representation of the position.  An entry-level computer programmer position generally will not meet the “specialty occupation” requirement.

It will be more difficult to have H-1B approved for computer occupations even if the employer proffers a higher wage.  USCIS states that according to the most recent edition of U.S. Dept of Labor’s Occupational Outlook Handbook, an “individual with an associate’s degree may enter the occupation of computer programmer.”  This does not mean that all computer programming positions would automatically be ineligible for H-1B for failing the specialty occupation requirement.  However, the petitioner must submit “probative evidence from objective and authoritative sources” that the position qualifies as an H-1B specialty occupation.

USCIS also will target positions that require a general purpose bachelor degree such as a business administration degree.  Although such degree may be a prerequisite for a position, “requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty occupation visa.”  The burden is on the petitioner to prove that the position is in a specialty occupation.

Therefore, employers that wish to file H-1B petitions for computer occupations will have to provide detailed information about: Continue reading →

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In a recent decision the Administrative Appeals Office affirmed the revocation of an H-1B petition where the geographical location of employment had changed triggering a requirement for a new Labor Condition Application.  In Matter of Simeo Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO determined that a change in the beneficiary’s location of employment is a material change to the terms and conditions of employment as originally listed in the H-1B petition.  Because such change is material, the petitioning employer was required to file an amended H-1B petition corresponding to a new LCA that reflects the change.  The AAO noted that Section 212(n) of the Immigration and Nationality Act ties the prevailing wage to the “area of employment.”  Therefore, the AAO reasoned, “a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material” for both the LCA and the H-1B petition, since such change may affect eligibility for H-1B petition.

Background

In this case, the employer filed H-1B petition changing the beneficiary’s status from F-1 student to H-1B employee.  In the  Labor Condition Application and the H-1B petition, the employer identified an

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The new H-1B fiscal year begins on October 1, 2015, when U.S. employers can add to their workforce up to 65,000 foreign nationals, plus additional 20,000 foreign nationals with a U.S. master’s or higher degree.  In addition, any unused H-1B1 numbers from Chile and Singapore will be added to the regular H-1B visa pool.  As the USCIS regulations permit the filing of H-1B petition no more than 180 days before the start date, and since the earliest state date for new H-1B employees would be October 1, 2015, the filing season begins today.  Most petitioners had everything ready for mailing on March 31, 2015 (yesterday) for USCIS receipt on April 1, 2015.

Based on prior experience, USCIS expects to receive more petitions than the Congressionally mandated numerical limitations.  The agency stated that it would monitor the number of petitions and will announce to the public when the cap has been met.

 

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