Tuesday, March 22, 2016

H-2B Cap for FY2016; Exemption for Returning Workers

On March 21, 2016, The USCIS announced that the H-2B Cap for the first half of FY2016 has been reached.  The final receipt date was March 15, 2016 for those with a job start date before April 1, 2016.  Every year, the USCIS allows 66,000 employees to enter the U.S. to work on a temporary basis through issuing H-2B visas. The first half of the fiscal year, they allow a limit of 33,000 applicants. 

The Requirements of H-2B
In order to provide proof of the above-mentioned factors, the H-2B petitioner must have received a valid temporary labor certification from the U.S. Department of Labor. 

In order for the beneficiary to be granted a H-2B visa, the petitioner must establish (1) there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, (2) employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers, and (3) its need for the prospective worker’s services or labor is temporary.

If the petition is approved, the term of this visa is no longer than one year.  However, the term may be extended for up to three years. At this time though, we do not know the exact date when the USCIS will re-open the cap and start accepting applications for the second half of FY 2016. If past practice is any indication, this usually happens in June of every year. 

Returning Workers Exempt From Cap
For this fiscal year ONLY, which lasts from October 1, 2015 until September 30, 2016, returning workers are exempt from the 66,000 H-2B cap.

A returning worker is defined as a H-2B worker who was previously counted against the annual H-2B cap of 66,000 visas during FYs 2013, 2014, or 2015. This means (1) the petitioning employer, is submitting a petition for a H-2B worker with a requested start date in FY 2016 and (2) the H-2B worker was previous issued an H-2B visa during the above mentioned fiscal years. However, in order to petition for the H-2B cap-exempt as a returning worker, there are also specific filing requirements you must follow closely.

If you are an employer with a prospective temporary employee who needs an H-2B visa to enter the U.S., contact Zhang-Louie, Immigration Legal Counsel at 978-482-7728 now to get your process underway for the next time when USCIS reopens its H-2B acceptance period in June.  Even if your prospective employee is a "returning worker" filing cap-exempt, Zhang-Louie, Immigration Legal Counsel can help ensure that the process is done correctly and successfully.  Zhang-Louie, Immigration Legal Counsel dedicates its entire practice to business immigration and will give your petition the full attention it deserves.

Monday, March 14, 2016

Optional Practical Training (OPT): F-1 Students Beware!

Optional Practical Training, commonly known as OPT to international students studying in the U.S,, is an opportunity the U.S. has provided to foreign students here on F-1 status to gain practical experience while in the country. We all hope that the student will receive a job offer before the end of his OPT term. Call it an internship or a co-op opportunity for international students, if you will. This opportunity extends the student's F-1 status for at least a year after the program on which his F-1 status is based has ended.  Students studying in the specialty fields of Science, Technology, Engineering, and Mathematics may obtain OPT for 17 months.

Most colleges and universities with international programs provide OPT advice for students in F-1 status.  This advice can come in many forms. Some are in the form of flyers, some are in the form of workshops for the students.  In these workshops, they explain the entire OPT process to you and what the school does and does not do for you.  For example, the school will have to issue an OPT Recommendation, however, they will not fill out your I-765 for you.

Be sure to check with your school's international students' office for the dates of these workshops.  Be sure to attend them as they can be invaluable to you obtaining your OPT after your program ends.

However valuable these workshops are, they do not provide you with legal advice on what happens if your OPT does not result in a job offer.  To word it more ominously, what would happen if your OPT ends before you were able to get a job offer in hand?  Most school programs end in July or August, you may start your OPT at that time.  Congrats, you have bought yourself another year in the U.S.!  But what happens next July or August when you discover that your employer cannot afford to keep you? By then, it's too late for an H-1B petition.  See Gearing up for H-1B for more details on the importance of meeting that H-1B deadline.

In today's economy, you just don't know.  Do not wait until a few months before your OPT expiration date to start searching for another job. Have the conversation with your OPT employer right off the bat, see what their projections are. More importantly, talk to a immigration attorney who can give you the advice you need on USCIS deadlines. Zhang-Louie, Immigration Legal Counsel can help you set deadlines in sync with that of the USCIS's deadlines and ensure that you do not miss these important dates.  Contact us at 978-482-7728 to see how we can help you.

Friday, March 4, 2016

Gearing Up For H-1B

For business immigration attorneys, this time of the year is more than just tax season, this is also H-1B season. The deadline for H-1B petitions is April 1 and attorneys are striving to complete the applications and send them in for employers before the cap is filled.

The cap for H-1B visas still maintains at 65,000 even though the popularity of this visa is ever increasing.  If your beneficiary has obtained a U.S. master's degree or higher, the attorney may relax her efforts, but only a little bit! Those with U.S. equivalents of master's degrees or higher are exempt from the 65,000 gap and the USCIS will consider the first 20,000 petitions received for beneficiaries with these advanced degrees.

Historically, the 65,000 cap is usually filled within the first week after USCIS begins accepting applications! That's why having an attorney with a set plan of action and a set schedule of when certain tasks need to be completed by the petitioner is extremely important.

For example, of particular importance is the certification of the Labor Conditions Application (LCA) from the Department of Labor.  In order to obtain this certification, the employer must submit a Prevailing Wage Determination (PWD) with the application. A PWD can be done by first referring to the the O*NET Database and obtaining an occupation code for a job title that is the most similar to the beneficiary's job title. Second, the employer or the attorney for the employer must utilize the occupation code to find the prevailing wage through the Foreign Labor Certification Data Center.

Moreover, the LCA may not be filed more than 6 months before the application for the H-1B. Simultaneously, employers must balance that with the requirement that there be enough time to undergo a proper hiring process to show that the employer have undergone an extensive process and was unable to find an U.S. resident suitable for the position.

All this must be done correctly to avoid penalties should your employer be selected at random for an audit! Zhang-Louie, Immigration Legal Counsel can help you ensure that the entire process is done correctly and successfully.  Contact us at 978-482-7728 for more information on how we can help you.