On Dec. 6, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for the H-1B cap season 2021 will begin on March 1, 2020 and end on March 20, 2020. Once selections have been announced, those selected will have 90 days to submit the petitions.
On Jan.
Various news sources have been reporting on certain changes that may be coming to the H-1B program under the new Trump administration.
First, there is a draft copy of an Executive Order titled, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” The draft contains several “orders” directing governmental agencies to propose and develop regulations pertaining to foreign nationals working in the United States. The draft that is currently available does not contain any concrete ideas as to the nature of any proposed or amended regulations. Furthermore, if this Executive Order were to be signed, it would take months for the affected agencies to review, propose and develop such regulations.Continue Reading Changes to the H-1B program under the Trump Administration?
On February 24, 2015, the United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS) announced that certain H-4 dependent spouses of H-1B nonimmigrant workers pursuing employment-based lawful permanent resident (LPR) status will be eligible for employment authorization beginning May 26, 2015.
This announcement follows the Executive Action announced by President
President Obama’s announcement on November 20, 2014 regarding his planned Executive Action to improve the immigration system was accompanied by several administrative memorandums, including several that addressed the business community’s frustration with a system that has been cumbersome, lengthy, and unpredictable. One memo included a promise to review the PERM process with an effort to
By now, all employers should have filed their H-1B petitions for their employees who are subject to the cap for the upcoming fiscal year. While waiting for the October 1st start date, the employees often ask about travel during the summer before the H-1B becomes effective. The rules on travel during the “cap-gap” period are both obscure and a trap for the unwary.
For individuals on F-1 student status whose H-1B petitions have been selected and issued receipt notices, the Optional Practical Training (OPT) authorization is extended to September 30th so that there is no gap in employment authorization between the OPT expiration and the beginning date of H-1B employment on October 1st. This extension of OPT is referred to as the H-1B cap gap extension.
The general rule is that an application to change status (from F-1 to H-1B) is abandoned if the applicant departs from the U.S. while it is pending. However, the individual may return to the U.S. in F-1 status with a valid F-1 visa and other documentation to show maintenance of status, such as an endorsed Form I-20 and an unexpired OPT Employment Authorization Document (EAD). Because the change of status will be denied, she will be required to apply for an H-1B visa at a U.S. consular post abroad prior to beginning employment in H-1B status. If the H-1B petition and change of status application are approved prior to departure, the individual may return to the U.S. on valid F-1 status prior to the date the change of status takes effect. Again, the individual must have a valid F-1 visa to return in F-1 status.
Continue Reading Can my employee travel during the H-1B cap gap extension period?
The Board of Alien Labor Certification Appeals (BALCA) recently issued three decisions reversing the Certifying Officer’s (CO) denials of certification.
Continue Reading BALCA Exercises Reason and Common Sense to Reverse Denials of Certification
In its latest decision, Matter of Select National Inc. (Sept. 19, 2012), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a labor certification by holding that even if a potential U.S. worker applicant did not appear to meet the required amount of experience, the employer had a duty to investigate further where the resume demonstrated a "broad range of experience, education and training." (For a general description of the PERM process, please see our recent post).
Select National Inc., follows two decisions issued earlier in the year, Matter of Goldman Sachs & Co. (June 8, 2012), and Matter of Kennametal, Inc. (March 27, 2012), both affirming denials based on employer’s duty to investigate further.
In Select National Inc., BALCA stated as follows: "We agree with the Employer that (the U.S. applicant) does not appear to meet the minimum requirement of three years’ experience in the job offered. However, even if the applicant did not have the exact experience required, the Employer was under a duty to investigate the applicant further."
In all three cases, BALCA acknowledged that the U.S. applicants did not meet the requirements as specified in the recruitment ads and the PERM application, whether it was the required degree or the specific skill set. However, BALCA reasoned that because all three employers had included a variation of the "magic" Kellogg language ("any suitable combination of education, training or experience is acceptable") in the PERM applications and/or the recruitment ads, the employer had the duty to further investigate the credentials of the U.S. applicants. Furthermore in Kennametal, BALCA reasoned that the employer failed to consider whether some of the applicants could be qualified "after a reasonable period of on-the-job training."
These BALCA cases emphasize both the importance of appropriately drafting the recruitment ads and the PERM application while considering any business necessity for the specified education and experience being sought and the importance of properly conducting and documenting the recruitment process in accordance with the regulations.Continue Reading BALCA Finds Employer’s Duty to Investigate Further The U.S. Applicants’ Qualifications
An application for Labor Certification, known by the acronym PERM (Program Electronic Review Management) is often the first of three steps required by an employer who wishes to sponsor a foreign national employee for permanent resident status. This post will provide some background and general explanation for the PERM process.
Continue Reading What is PERM?
Yesterday, the U.S. Citizenship and Immigration Services announced that the H-1B cap has been reached for the Fiscal Year 2013, which begins October 1, 2012. Accordingly, no H-1B petitions can be filed until April 1, 2013, for potential employees who are cap-subject to be able to begin working on October 1, 2013.
Continue Reading H-1B Cap has been reached for FY2013