USCIS Approaches H-1B Cap for New Fiscal Year

Posted on October 26, 2011 by Robert Cohen

USCIS announced the status of the H-1B cap filings as of October 21, 2011 for the fiscal year that began on October 1, 2011. For background, the law permits 65,000 regular "cap" cases and 20,000 master cap (graduates of U.S. universities with an advanced degree) each fiscal year. Because filings are permitted six months in advance, the annual filing season begins on April 1 each year and continues until the cap has been reached.

As of October 21, 2011, the full 20,000 complement of masters cap cases has been exhausted, and 46,200 regular cap petitions have been filed. This leaves 18,800 remaining for the fiscal year that began this month. Although this is reduced by 6800 visas reserved for Chile and Singapore under Free Trade Agreements, additional visas not used under the agreements from last year are added back in to the total. This leaves approximately 19,000 visas for the remainder of this fiscal year. Employers can expect that that the H-1B cap will again be reached shortly before or after the first of the calendar year and should plan accordingly.

After the cap has been exhausted, cap subject petitions cannot be filed until the following April 1 for a start date on October 1, 2012. There are a myriad set of rules that help cover the gap caused by the shortage of H-1B visas. Individuals currently working with existing H-1B visas that have already been counted under the cap in previous years are not subject to the cap. Additionally, universities and certain affiliated non-profit hospitals and research institutes are cap exempt. Finally, recent graduates from American universities with Optional Practical Training may be eligible for the "cap-gap" extensions of work authorization under the USCIS regulations. However, if there is no exemption or alternative employment authorization, H-1B beneficiaries subject to the cap may not be able to begin work until the beginning of the next fiscal year (October 1, 2012).
 

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H-1B Employer Assessed Back Wages and Fined

Posted on December 9, 2010 by Kyle Knapp

The U.S. Department of Labor announced this week a $638,449 back wage consent order and $126,778 civil fine against a New Jersey IT consulting firm, Peri Software Solutions, Inc. The announcement indicated that the back wages resulted from the employer's failure to compensate the H-1B workers as required under Department of Labor regulations. The civil fine arose from two issues:  the employer failed to provide notice of its intent to employ H-1B workers and it sued former employees "for early cessation of employment."

The announcement may raise more questions than it answers concerning the specific facts involved, but it serves as a good reminder for H-1B employers that the applicable regulations are very exacting and can be costly when disregarded.  While this case appears to have involved a failure to pay the required wage rate, employers may be surprised to learn that the wage obligation continues as long as the H-1B petition remains valid, which in many cases can be for up to three years. Even after an H-1B worker has resigned or been terminated, the Department of Labor requires the employer to pay the worker's wages until U.S. Citizenship and Immigration Services (USCIS) has revoked the H-1B petition. The H-1B regulations in fact require employers to notify USCIS when the H-1B worker's employment ends. Requesting revocation of the petition therefore complies with USCIS regulations and avoids a potential Department of Labor assessment of back wages.

 

The civil fine similarly is a good reminder of the notice requirement of the H-1B petition process. Employers must provide notice at the place of employment that it intends to employ H-1B workers at that location. The notice may be provided through a paper posting or electronic communication and must contain information concerning the occupation, salary and intended period of employment. In situations where the job location may change, such as IT consulting positions, there are specific guidelines for when and where the notice must be provided.

 

The H-1B visa program is a useful means for employers to hire and retain qualified noncitizen professionals for positions that require at least a bachelor's degree. Examples include many IT positions, engineers and financial analysts. And although the regulations contain many traps for the unwary, with careful planning and counsel, employers can satisfy the requirements and concentrate on running their businesses.
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H-1B Employers: Did you ever wonder what happened to the $500 fraud fee you paid with the H-1B petition you filed?

Posted on October 7, 2009 by Kyle Knapp

You may find out soon. After several years of collecting the $500 fraud fee from employers filing H-1B petitions to sponsor foreign national employees, the U.S. Department of Homeland Security ("DHS") has increased its investigatory activities by dispatching officers and independent contractors to the places of employment indicated on the visa petition forms. Since 2005, employers have paid the $500 fraud fee with the first petition they file on behalf of new H-1B employees. With 85,000 new H-1B visas available each year, this means DHS collects at least $42.5 million annually for just the new visa numbers. That amount very well may be dwarfed by the numerous other petitions employers file. Each time an H-1B worker changes employers, the new employer must pay the fee with the petition. DHS therefore likely collects substantially more than the $42.5 million it receives from the quota-based petitions.

 

The stated goal of the increased investigatory activity is to preserve the integrity of the H-1B visa program by ensuring that the terms of employment outlined in the visa petition actually exist. For example, if an employer outlined in its visa petition that the sponsored employee would be working as a graphic design artist, the inspector would inquire into the nature of the employer's business, ask to see the employee's work space and request copies of payroll records to verify that the sponsored individual actually is performing graphic design work. The inspector also likely would ask to speak with the employee to verify the nature of the work. Based upon various reports of recent site visits, the inspectors have been professional, courteous and required only a brief amount of time to gather the pertinent information and documents.

 

The instructions to the H-1B petition form put the employer on notice that DHS may conduct unannounced site visits before or after approving the petition. No subpoena is required. Therefore, while employers certainly may request that the inspector return at a more convenient time, or at a time when counsel may be present, the inspector is not required to honor such requests. As a practical matter, most inspectors should complete their site visits quickly, and legitimate employers should have little concern.

 

DHS is conducting the H-1B site visit efforts on a random basis. However, we have heard reports that the number of visits have increased exponentially in the past several months. Therefore, even large, well-known organizations should not be surprised when an inspector pays them a visit. Indeed, the number of site visits has increased to the point that if you have filed an H-1B petition within the past three years, it is likely that you have been, or will be visited shortly. 
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