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Business Immigration Update:
Employer’s Primer on H-1B Filings
 
What should employers wishing to file H-1B understand before filing?
Beware of the harsh rules against employers for their failure to comply with the obligations and responsibilities dictated under the regulations. With every H-1B application, the employer files a Labor Condition Application (LCA) with the Department of Labor, indicating the wage for the position. The employer’s obligation to pay the wage listed on the LCA does not end until the H-1B stay expires or until the employer has notified the government that it no longer employs the H-1B. Until this affirmative obligation has been met, the H-1B employer is liable to continue to pay the H-1B employee.

How can I Protect Against H-1B Penalties for Wage Violations
Please note that the wage listed on the certified Labor Condition Application can be challenged by the Department of Labor in an audit of the employer. The employer can incur liability if the DOL investigation finds that the wage listed on the LCA is too low based on the minimum requirements of the position listed on the H-1B application. An employer who fails to pay the higher of the prevailing wage or the actual wage for the position can be held liable for payment of back wages to the affected employee.

Temporary Suspension of Premium Processing Prolongs H-1B Decisions 

On March 3, 2017, U.S. Citizenship and Immigration Services, (USCIS) announced that it will temporarily suspend Premium Processing for all H-1B petitions beginning on April 3, 2017.

The government indicates that the temporary suspension of Premium Processing is an effort to process backlogged cases. April 3rd is the first allowable date for filing for FY18 cap-subject H-1B petitions. 

If a petition is submitted this year with the Premium Processing fee, it will automatically be rejected, for FY18 cap-subject H-1B petitions, the employer will be unable to file again for a year until April 1, 2018.


What is Premium Processing and how will its suspension impact an H-1B filing?
Premium Processing has always been an optional service that allows employers to request 15-day processing of H-1B applications for an additional filing fee of $1,225. Without the option of Premium Processing this year, we expect significant delays in the H-1B adjudication process. It is not uncommon for H-1B petitions filed without premium processing to be adjudicated six months or more after filing. 
 
What are Cap-Subject H-1B Petitions?

These are the petitions which are filed by employers for prospective employees that have never held H-1B status previously. The congressionally mandated cap on H-1B visas is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more than 65,000 petitions during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. In the past, USCIS has reached the quota on the first day of filing. If USCIS receives an excess of petitions during the first five business days, the agency will use a computer-generated lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. For those FY18 cap-subject H-1B petitions which are accepted and processed without premium processing this year, employers should be prepared for adjudication after October 1, 2017.


What is Cap-Gap employment authorization extension?

Cap-Gap is the automatic extension of an F-1 student’s OPT employment authorization for those students whose OPT expires after April 1, 2017. The Cap-Gap period starts when an F-1 student’s status and work authorization expires and ends on the start date of their approved H-1B employment. 

Cap-Gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1, provided that the case has been adjudicated. 

 
When is Cap-Gap Employment Authorization Terminated?
If the employer receives a rejection notice from USCIS for a Cap Gap-covered employee, that employee’s work authorization expires as of the date of the rejection notice, and the employee must be terminated immediately. As of the date of the rejection notice, the employee has a 60-day grace period to depart the United States. Keep in mind that the Cap Gap extension only applies to F-1 students who have OPT employment authorization which is valid on April 1st or later.

How Do I Request a Cap-Gap Extension for an F-1 OPT Employee?
Employers do not have to take any action. The Cap Gap extension is automatic and documentation is not required for work continuation. Yet, if the H-1B petition is accepted, the F-1 Student should return to the Designated School Official (DSO) with a copy of the petitioning employer’s form I-797, Notice of Action, with a valid receipt number indicating that the petition was filed and accepted. The DSO will issue an updated I-20 showing an approved extension and it will serve as proof of the extension of the student’s OPT employment authorization. 
 
How will the suspension of Premium Processing impact Employers filing for Extensions of Stay for Existing H-1B Employees?
This development will have little effect on employers who are filing extensions of stay for existing employees given that such H-1B employees are given an automatic temporary 240 day extension of employment authorization while the case is pending. However, employees may have problems obtaining extensions of their employment authorization.

How will the suspension of Premium Processing delay impact Employers filing for H-1B Transfers?

The suspension of the premium processing program may negatively impact H-1B petitions filed by employers who are seeking to be named as the H-1B employer of an individual who already holds H-1B status with another employer. The law permits transferring H-1B status holders to “port” or transfer to a new employer provided that the H-1B transferring employee qualifies to “port” or begin employment with a new employer before the final adjudication of the new H-1B is pending. 

In order to “Port”  under the H-1B regulations, a transferring employee, an individual who already holds H-1B status, may begin employment with a new H-1B employer provided that:

  • New H-1B employer has filed an H-1B petition,
  • New Employer Received affirmative notification from the government that the case has been accepted,
    and
  • The H-1B transferring employee has not engaged in unlawful employment. 

Those transfer cases which do not qualify for “porting” will have to await beginning new employment until the transferring case has been adjudicated.  This process could take more than six months. 

Our firm understands the issues facing H-1B employers. Incorrect information and advice can be  costly to your business, which is why we take precautions to reduce your business’s exposure as much as possible.

If you should have any questions about H-1B petitions, processing times, or audits, please consult with the experienced attorneys at Monty & Ramirez LLP at 281-493-5529 or contact us via email at smonty@montyramirezlaw.com.


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150 W. Parker Road, Third Floor | Houston, TX 77076 | 281.493.5529



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