Tag Archives: h1b visa

H1B Visa Season FY2011 Tips for April 1, 2010

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H1B visa season is hotting up again and we want to try to help all those foreigners who are seeking to work in the US now after a tough H1B Visa season FY2010 in 2009.

Already this year we have listed the most recent Top 25 Employer Sponsors of H1B visas to give you an idea of who most recently has been hiring foreign workers even during the tougher economic times of last year. Then we also covered some great H1B visa application filing FAQs as well as covered all the H1B visa petition supporting documents you need for a successful application.

There is every indication this year that things should go back more to normal due to the better economic conditions. This means that it is more likely you will need to get your H1B petition filed close to the April 1, 2010 filing date to ensure you have the best chance of being approved for a successful application.

What this means that even things like the H1B visa lottery may be reinstated this year if there is an over supply of application for the 65,000 H1B visa quota for the main group along with the additional 20,000 quota for those with US based advanced degrees (i.e. Master’s or higher).

This H1B visa lottery in past years has left many deserving foreigners and their employers with work approval so it is critical that you get your application early to avoid any random selection in the process.

Some other general tips for H1B visa season include;

  1. H1B visa Premium Filing: If you either have means to pay for premium processing or your prospective H1B visa employer sponsor on your behalf can on your behalf, then certainly do. This is where the USCIS guarantees a response of approval, denial or need for more information within 15 days of filing (otherwise they refund the money). This costs $1,000 and while it doesn’t directly mean your chances are better it does give your employer/attorney direct access to the USCIS assessing case officer. (you can’t do this on your own behalf). This of course tends to help the whole application process being approved and being done quickly
  2. Understand Specialty Occupation & Wage Requirements: Due to the tougher economic conditions there is definitely more of a focus from the USCIS and US Department of Labor (DOL) that these are enforced. Specialty occupation in its broadest sense can mean any occupation that requires and specifies as so a Bachelors Degree minimum requirement with a few exceptions. However it is important that role as defined in the your H1B application to the USCIS and prior ETA-9035(e) filing with the US Department of Labor to receive your LCA is as specialized as possible. The more generic your title and job duties, the greater the risk of denial either at these points or even when applying for your H1B visa at your US Consulate or Embassy Interview
  3. Beware of H1B visa Fraud: In years gone by many individuals and employers were more easily able to get away with either borderline following the rule H1B visa petitions or more fraudlent H1B visa applications. They were borderline and/or fraudulent in the areas of who was actually employing the foreigner, where their job sites would be, who was paying them, whether they were really employees or contract workers paid by the job, whether they were benched (meaning not working or being paid waiting for their employer to send them to a new role), etc. Currently there are more regular H1B visa site audits, additional scrutiny of applications at all levels from the DOL to USCIS and the US Consulates and more alarmingly recently H1B visa deportations of approved H1B workers.
  4. US Immigration & Employment Trends: Ensure that you are fully versed in the best locations and industry sectors to look for work in the US. We documents these immigration and employment trends recently and you will see that areas like Texas and Florida and then industry sectors like Health, Education, Green Energy and Internet are among the best places to search for jobs.
  5. US Job Applications: Understand the best places to look for work in the US, how to create a US style resume, issues and extension benefits if transferring from the F1 visa OPT program and finally great US job interview techniques

Good luck in this H1B visa season to all foreigners and we look forward hearing your stories and experiences as the season unfolds.

CJ

H1B Visa Deportation News

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The recent deportation of a number of Indian H1B IT workers from Newark and JFK airports has sent shock waves through the H-1B community. H-1B employers, employees and their attorneys alike are flabbergasted by this brazen act of official highhandedness where individuals arriving on H-1B visas were singled out even before their primary immigration inspection, put through a sham questioning, forced into making coercive statements, issued expedited removal orders, and sent back! Their crime? They landed in the U.S. with legitimate H-1B visas to work for genuine U.S. entities, but at a location other than their office, i.e., at a client site or third party site!

H1B employees working at a client site or a third party site is a practice as old as the H1B program itself, and is not a violation of the regulations when supported by appropriate documentation. What is shocking is that the disgraceful action by CBP inspectors was triggered by an overzealous (mis)interpretation of a recent Memo issued by Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services (USCIS).

At its core, the Neufeld Memo underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States. In such a relationship the employer should have the “actual” control or the “right” to control the employee, to hire, fire, pay, and to decide when, where, and how the employee will be employed.

Based on the experience of this writer in processing thousands of H-1B petitions over a period of more than 15 years (and attending to the resultant issues), this situation can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation. Also, H1B employees should be educated on how to answer questions from overbearing government officials. Pardon me for saying this, a small minority of companies, through a lackadaisical attitude towards adhering to the regulations, seem to bring a bad name to the entire H-1B community and to the H-1B program itself, resulting in such sweeping governmental actions that affect legitimate H1B employers and put the lifestyle of unsuspecting employees and their families in jeopardy. Moreover, this supplies fodder to the anti-H-1B bogey that is becoming more and more vociferous in the light of rising unemployment in the United States. We, at our office, always make it a point to emphasize to H-1B employers and employees alike to strictly adhere to the governing regulations and requirements of the H-1B program.

As stated above, the focus of the CBP enforcement action is as to who the actual employer is. It should be noted, in situations where an individual works at a location different from the petitioning company’s office, the question is whether such petitioner employer has the “actual” control or the “right” of control over the H1B employee. When the H-1B employee works at a client site, or a third party site, the H-1B employer may not always be able to exercise “actual” control over the individual’s employment. But to maintain the H-1B status and be in compliance with the regulations, the H1B employer needs to prove the “right” to control, if not the “actual” control. There are various ways to meet the requirements of actual control or right to control, as we have been advising our clients, by ensuring acquisition, usage, and maintenance of appropriate documents. It takes logical planning under effective legal guidance.

In conclusion, we would like to remind our clients and other readers of this article that the government’s enforcement of the regulations can be expected to become stricter in the future, and appropriate proactive steps will save the employers and employees alike a lot of hardship and aggravation.

Guest Author

Morley J. Nair