Spring Cleaning And The H-1B Visa Cap

With comprehensive immigration reform on the horizon and the
economy rebounding, the number of H-1B visa filings for foreign
temporary professional workers is likely to significantly increase
this year. American businesses recognize that to compete in the
global economy, smart, competitively trained, and diverse talent is
critical. In many industries, foreign workers, including H-1B
degreed professionals, are an integral part of such a workforce.
There are only a limited number of new H-1B visas issued each
fiscal year, and how quickly they are utilized is tied to the
economy and market demand. For the 2013 fiscal year, the H-1B cap was reached on
June 11th 2012, five months earlier than in FY 2012 when it was not
reached until November 23, 2011.

Employers hoping to apply for one of these coveted FY2014 H-1B
visas that will allow for an October 1, 2013 start date should
immediately consider initiating a petition to ensure a visa number.
Filings for H-1B applications subject to the yearly cap begin on
April 1, 2013 — six months prior to the start date of the 2014
fiscal year. It should be noted that filing on April 1st or as
close to that date maximizes an employer’s ability to secure
one of the limited number of H-1B visas available. While
considering whether or not your company will be sponsoring any
individuals for H-1B visas, the time is right to review compliance
in all aspects of immigration related matters including Department
of Labor and U.S. Citizenship and Immigration Services filings. For
those charged with immigration responsibilities now is the time to
dust off the Form I-9 binders, PERM Audit files and Public Access
Folders to ensure they are being maintained properly and discarded
at the appropriate time.

What is an H-1B Employee?

Companies use the H-1B program to employ foreign workers in
“specialty occupations,” that is, positions that require
the minimum of a Bachelor’s degree or its equivalent and
specialized knowledge or skills, such as scientists, engineers,
teachers, architects, and computer programmers among many others.
There are only 65,000 H-1B visas allotted annually for cap-subject
workers. An additional 20,000 H-1B visas are available for workers
with advanced degrees earned in the United States, including
Master’s and Ph.D. degrees.

The Numbers

The current annual cap for the H-1B category is 65,000. However,
the cap only applies to new H-1Bs. With a few exceptions as
discussed below, including those working with non-profit and
education institutions, individuals currently in H-1B status are
not subject to this annual cap. In addition, up to 6,800 visas are
set aside from the cap of 65,000 during each fiscal year for the
H-1B1 program under the terms of the legislation implementing the
U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers
in this pool are made available for H-1B use for the next fiscal
year.

When can new H-1B visas be filed?

Cap-subject H-1B petitions can be filed for receipt by USCIS on
April 1, 2013, for an employment start date of October 1, 2013. The
increase in H-1B filings will reopen the debate on the demand for
H-1B professional workers and a re-examination of the advantages
and disadvantages in employing an artificial cap of skilled
professional workers at a time when it is crucial that the U.S. be
able to compete globally.

How is the Department of Labor involved?

Prior to filing the H-1B petition with the USCIS, an employer
must prepare a Labor Condition Application (LCA) certifying to the
Department of Labor (DOL) that the company will pay the H-1B worker
the higher of the actual or prevailing wage, and
will include such wage on the I-129 form. A DOL certified LCA must
accompany each H-1B petition. In an effort to protect U.S. workers,
employers must post a notice at the worksite stating that it has
filed an LCA in accordance with DOL regulation. The DOL Wage and
Hour Division is charged with ensuring certain standards are met in order to
protect similarly employed U.S. workers from being adversely
affected by the employment of the nonimmigrant workers, as well as
to protect the H-1B workers.

Who is subject to the Cap and Who is not?

The determination of whether the filing will or will not be
cap-exempt will turn on a variety of facts. Fortunately, the cap
does not apply to individuals who are already in the U.S. in H-1B
status and working for another company that was not cap-exempt.
Furthermore, institutions of higher education, nonprofit research
organizations, and government research organizations continue to be
exempt from the H-1B cap.

H-1B Compliance

With USCIS’ increased focus on compliance, the start of cap
season is a good time to review your company’s Public Access
Files (PAFs) as well as the H-1B compliance policies and
procedures. Public Access files must be available for public
inspection and should contain all of the relevant LCA information
including wages, benefits, proof of notification (postings). The Office of Fraud Detection and National
Security (FDNS) is charged with detecting, deterring and
combating immigration benefit fraud and strengthen efforts in
ensuring benefits are not granted to those who threaten national
security or public safety. FDNS, through the “fraud fee,”
conducts random and unannounced site visits to H-1B employers of
all sizes across all industries. As part of the program, FDNS
officers collect information during site visits to verify
information pertaining to petitions that are pending and already
approved. The $500 H-1B Fraud Prevention and Detection Fee, paid by
all employers seeking an H-1B for initial employment or a change of
employer funds these efforts.

In light of these ongoing H-1B site visits, HR managers should
ensure that all existing H-1B employees:

• have a complete and updated PAF in place that is readily
  available for public inspection;
• have the correct LCA in place;
• have evidence that the LCA was posted at the job location where
  the employee is working;
• are working in the job that is noted on the H-1B petition;
• are being paid the higher of the
  actual or prevailing wage;
• are working at the salary noted in the H-1B petition; and
• have not experienced any material changes to the job
  description noted in the H-1B petition.

It is also a good time to ensure that older PAFs are discarded
if they are past the dates required for retention and all items in
the PAF are properly executed and maintained. Often attorneys will
draft the core PAF and forward documents for review and execution
to clients – for the company it is important to determine if
all the I’s were dotted and the T’s were crossed. Good
housekeeping of immigration records is critical for companies
striving to improve overall immigration related compliance. Company
policies in terms of legal fees, filing fees and other areas should
also be reviewed at this time to ensure compliance with the
law.

Form I-9 Compliance

H-1B cap season is also an excellent time to review the
company’s Form I-9 compliance and ensure that re-verifications
are completed timely and correctly. Re-verifications are required
for aliens authorized to work for a certain period of time in the
US. During I-9 audits, we often find that employers do not timely
update Section 3 with the appropriate re-verification information.
Do not overlook the core compliance requirements in situations
where your company is sponsoring individuals on work related visas.
The law states Section 3 must still be completed on or
before the expiration of the validity of work authorization
regardless of whether you sponsor the applicant directly or
not.

Specifically the 240-day extension granted to individuals whose
I-129 extension application is still pending at the expiration of
their original I-94 should be recorded. The M-274 Handbook for Employers notes that
employers should write “240-Day Ext.” and record the date
the I-129 was submitted in the margin of Section 2. Then, Section 3
should be updated once a decision is received from USCIS or before
the 240-day period ends, whichever comes first. USCIS also
recommends retaining a copy of the new I-129, proof of payment for
filing the new I-129, and evidence that the new I-129 was mailed to
USCIS with the Form I-9 record.

It is frustrating to see employers complying with the law,
filing timely non-immigrant extensions, but then failing to update
Section 3 of the Form I-9 timely thereby exposing the company to
fines and penalties. The law requires that reverifications are
completed on or before the date a non-immigrant’s work
authorization expires. As a best practice, non-immigrant employees
should receive update reminders 120 days prior to the expiration of
their work authorization in the same manner you would notify all
other employees with expiring work authorizations.

Conclusion

The need for increased visa numbers was recognized in both
President Obama’s immigration plan as well as the bi-partisan
immigration proposal introduced last week. In fact, U.S. Senators
Orrin Hatch (R-Utah), Amy Klobuchar (D-Minn.), Marco Rubio (R-Fla.)
and Chris Coons (D-Del.) introduced legislation, the Immigration
Innovation (I2) Act of 2013, to bring long-overdue reforms to the
nation’s immigration laws for high-skilled workers. The I2 Act
is supported by a bipartisan group of ten senators and seeks to
reform America’s immigration laws for highly skilled immigrants
working in science and technology fields. I2 would increase the
number of temporary visas that are available to these immigrants so
more could remain in the United States after attending school in
the US and contribute to our economic growth and innovation.
Among other things, I2 would increase the H-1B cap from 65,000
to 115,000 and would reform fees on H-1B visas and
employment-based green cards. The fees would then be diverted to
fund a grant program to promote science, technology, engineering,
and mathematics (STEM) education and worker retraining, which would
be administered by states. Foreign students studying in the US
would be allowed to have “dual intent” to possess an F-1
student visa and apply simultaneously for residency (this is
currently prohibited). This proposal appears to be a workable
vehicle to promote stability and allow for the best, and the
brightest, to establish long-term roots in the U.S. while their
contributions improve our economy.

In the interim, employers must work within the limitations
imposed by the current H-1B visa cap and ensure immigration
compliance within their organizations.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Specific Questions relating to this article should be addressed directly to the author.

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Spring Cleaning And The H-1B Visa Cap