LawQuest | US Immigration Alert | Geared Up for the Upcoming H-1B Cap Season FY 2024?

Geared Up for the Upcoming H-1B Cap Season FY 2024?

A crucial time of the year is approaching for all those companies looking to sponsor foreign nationals to work in the U.S. on an H-1B visa. For the past three years, the USCIS has been using an online electronic registration and selection system to conduct the H-1B “lottery” if there are more registrations than H-1B visa numbers.

Set out below is a brief description of the process flow and how companies should be prepared for the upcoming cap season.

Registration Process

The electronic registration period on myUSCIS is likely to begin in the first week of March 2023, and U.S. Petitioners/Attorney Representatives will have not more than 2 to 3 weeks to register their potential beneficiaries for the FY2024 H-1B Cap lottery.  Hence, it is important for employers to begin their applicant screening process by December 2022/January 2023 if they have not done so already to allow enough time to gather the required details.

U.S. Petitioners applying for the first time will be required to create an H-1B Registrant account on the myUSCIS website before the registration period begins.

We expect that the process for the upcoming cap season will remain unchanged unless the USCIS announces any modifications in the ensuing months. As in past years, and in view of the continuing shortage of talent in the U.S., we expect that the USCIS will have to run a lottery after the pre-registration process this year as in the last several years. However, the USCIS has the discretion to suspend the registration process at any time if it determines that the registration process is inoperable for any reason.

Deferred registrations may remain pending in the system for the rest of the applicable fiscal year (or until the CAP is reached) in the event that the USCIS needs to select additional registrations, sometime between July and November as they have done on occasion in the past.

H-1B lottery

After the registration period is completed the USCIS will conduct a lottery which is a randomized process. The USCIS will then electronically notify the U.S. Petitioner/Sponsor/Attorney Representatives of these selections by end of March 2023.

H-1B Petition and Visa

After the results of the lottery are out, U.S. Petitioners will have a period of 90 days starting from April 1st to submit H-1B petitions for the selected registrants along with the relevant forms, filing fee, LCA and other supporting documents. The USCIS will then adjudicate the petitions and inform the petitioners/beneficiaries of their decision.

Those petitions that get approved may then proceed to apply for their H-1B visas with a U.S. Consulate and commence working in the U.S. from October 1st onwards or any date thereafter.

Key Takeaways

  • Companies should begin collating a list of employees who they wish to shortlist for an H-1B visa in order to be employed in the U.S. by the end of the year of 2023.
  • Once the prospective candidates have been shortlisted, companies should accumulate necessary information and documents to ensure that the candidates meet the basic requirements which will make them eligible for an H-1B visa to make the registration process easier and faster.
  • Companies should validate certain important basic documents of shortlisted applicants, for e.g. in cases where the applicant’s passport is about to expire within a period of 6 months, the passport must be renewed before the registration period or shortly thereafter.
  • Companies applying for H-1Bs for the first time must complete certain registrations (FEIN and VIBE) before they are ready to file H-1B petitions. Since the DOL is usually swamped with a number of petitioners applying for an LCA, it is common for delays to take place which is why it is imperative to initiate the FEIN registration process with the DOL promptly.
  • LCAs currently take 7 days to be certified. As we get ready to file the H-1B petition, the number of LCAs filed with the DOL is only going to increase, leading to possible delays in LCA approvals.
  • Companies who miss registering its employees during the pre-registration period that will most likely begin in March 2023, there may be no further H-1B visas for FY 2024 and the earliest you could initiate a new H-1B case would be in March 2024 for an employment start date of October 1, 2024.

 

 

Find a job or return to home country? An H-1B visa holder’s guide if they lose their job in the US

Find a job or return to home country? An H-1B visa holder’s guide if they lose their job in the US

The unexpected layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies have created an environment of unrest among foreign workers. In view of this, a lot of questions and concerns on preserving one’s status in the U.S. have arisen, as listed below.

1. Upon termination of employment, do non-immigrant visa holders have any grace period to remain in the U.S. and look for a new job or change his/her status?
Yes, most work-related non-immigrant workers are allowed a grace period of 60 days upon cessation of their employment. Until the beginning of 2017, this provision was not available to non-immigrant workers, and hence, they would be considered to be in violation of their status immediately once their employment got terminated.

The 60-day grace period allows the worker more time to leave the United States, and at the same time presents an opportunity to transition to another employer who is willing to file an extension or change of status within the 60-day period.

2. Can foreign nationals who lose their job consider different visa options to remain in the U.S., even if it is for a short time?
Foreign national workers could change their status to another non-immigrant status such as, F-1 student status or B-2 visitor status under further guidance from an attorney.

3. If the worker finds a new employer who is willing to file a new H-1B petition on his behalf, will the worker in this case be subjected to the H-1B cap?
If the foreign national worker has been counted under the H-1B cap within the last 6 years, the new employer can immediately file for his H-1B transfer and does not need to wait for the H-1B cap registration period. Employers can sponsor laid off employees who have been counted in the H-1B cap within the past 6 years as these employees would not be subject to the annual H-1B cap again.

Even foreign workers in H-1B status, who are beneficiaries of approved I-140s in the green card process could be hired by new employers within the grace period. Such employees can seek US employment and render services from outside the US and eventually return to the US once their H-1B petition is approved and they receive a stamped H-1B visa from the US Consulate. A pre-existing H-1B visa may be used in conjunction with the newly approved H-1B petition to return to the U.S.

Although, if the employer wishes to file for a change of status application to H-1B for a laid off L-1 worker within the 60-day grace period, they cannot do so unless the worker has previously been counted under the prior H-1B cap. If not, the employer will have to wait to register the applicant for the upcoming H-1B lottery in March 2023.

4. What is the total period for which an H-1B can be extended?
The maximum time that a non-immigrant worker is allowed on an H-1B status is six years. If the worker has spent less than six years in the U.S., then, the new employer can seek to obtain the remainder of unused time in H-1B status for a maximum of six years. However, there are certain instances when a non-immigrant worker can avail for extensions beyond the six-year limit, namely, if he/she holds an approved

I-140 or has a pending I-485 Adjustment of Status which has been filed within one year of the final action date becoming current. It is best to secure guidance and practice utmost caution before proceeding with filing H extensions with latter provisions.

5. What happens if the terminated employee is allowed to remain on the U.S. payroll for a short period of time but is not permitted to be actively involved in work for the employer?
The correct term to describe an arrangement like this would be ‘Garden Leave’. To better understand the concept of Garden Leave, let’s consider that a worker is terminated on November 7, 2022, but continues to be paid from until the end of December 2022 while being in nonproductive status. In strict compliance with the regulations, it is best to consider that the non-immigrant worker’s termination occurred on November 7, 2022 rather than the end of December 2022 unless the worker is on leave – such as a medical leave or has suffered from some sort of disability to work.

6. If the non-immigrant worker has held an approved I-140 with his previous employer, can the new employer file for a new labor certification and subsequent I-140 without the worker losing his priority date?
The new employer in addition to filing a transfer of H-1B status may also file a new labor certification, and upon approval, file another I-140 petition for the non-immigrant worker. In this case, the priority date of the prior I-140 petition can still be retained.

7. Would job portability be an option in cases where the non-immigrant worker has a pending I-485 Adjustment of Status application?
If the I-485 application has been pending for 180 days or more, the worker can exercise job portability by taking up a job or being offered in the same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising such portability. The applicant, in such an instance will need to submit a new Form I-485, Supplement J. The non-immigrant worker in this case can also exercise job portability to “self-employment” if he is unable to find any employment.

Disclaimer: Any material provided here is by way of information only and should not be viewed as soliciting or advertising. No action should be taken based on information provided without seeking appropriate legal advice. 
 
With inputs from Manizeh Mistry, Associate Partner at LawQuest. 

Laid off Twitter, Meta workers a talent source for US IT companies

Laid off Twitter, Meta workers a talent source for US IT companies

IT services and staffing firms in the United States could be in for a ready reserve of potential employees following mass layoffs by technology companies such as Twitter and Meta Inc.

Many of those impacted by the layoffs are workers on an H-1B work permit.

They will not be eligible to legally stay and work in the United States after 60 days of the end of their employment contracts.

Staffing firm Quess Corp, which recently started its professional staffing business in the United States, said this was a good opportunity for companies to hire people who had been fired.

“We are mapping that … there are layoffs in many pockets, in startups and in mature environments. For someone who already has a visa and can migrate … this is a good opportunity,” said Guruprasad Srinivasan, chief executive of Quess Corp.

Most IT services providers have been increasing their hiring in the United States in a bid to be closer to clients, especially after two years of a remote working environment due to travel restrictions following the Covid-19 pandemic.

“…employers in the US need H-1B workers, especially in the IT sector. However, such employers cannot advertise that they have jobs for, let’s say H-1B visa holders, as that would be a discriminatory recruitment initiative and could expose the employer to lawsuits from US workers and/or other legal action or regulatory sanctions,” said Poorvi Chothani, managing partner of immigration law firm LawQuest.

However, companies are likely to tap into their existing employee networks to informally reach out to such workers and recruit them.

Staffing firms, which place workers at IT firms for short-term projects, could also emerge as potential employers as many companies are turning to staffing firms to meet their demand for highly skilled tech talent.

Deepali Khadakban, CEO of US-based IT services firm Precision Technologies, said her firm would continue to hire for tech skills, including those impacted by the layoffs.

“One challenge for these employees could be getting used to market-standard salary packages given that some of the tech firms had hired talent at fairly premium packages to attract them,” Khadakban said.

Most IT companies have increased their dependence on sub-contractors, or short-term workers, in the United States to bridge the supply gap.

Several people have taken to posting on microblogging platform Twitter, offering to connect those impacted by the layoffs with startups that are hiring and willing to sponsor the work permits. But it may not be smooth sailing for everyone.

“Hiring of lateral talent is largely a zero-sum game where talent is exchanged within the same cohort of companies. With all Big Tech bellwethers currently in the doldrums due to layoffs and hiring freeze or slowdown, opportunities are not expected to come calling,” said Kamal Karanth, CEO of employee staffing firm Xpheno.

Because of record low hiring volume in recent months, employees hit by layoffs are set to encounter “an unwelcoming hiring climate”, he added.

H-1B employees typically operate on a slippery slope dependent on their H-1B employer, and the tech sector is particularly vulnerable, said Neil A Weinrib, founder of Neil A. Weinrib & Associates, an immigration law firm.

“A lot depends on how long the foreign national has been holding H-1B status in terms of their ability to port to a new sponsor, as H-1Bs are typically valid for up to 6 years unless a PERM/Labor Certification has been filed on behalf of the foreign national before the end of their 5th year,” he said.

An Update on U.S. Visa Appointments and Consular Affairs in India

An Update on U.S. Visa Appointments and Consular Affairs in India

Last week, the Minister Counselor for Consular Affairs, Mr. Don Heflin, at the U.S. Embassy in India, provided an update on visa processing in India. He described the steps they are taking across Mission India to reduce the visa appointment wait and processing time as well as appointment backlogs. Some of the key points are provided below.
Augmenting Staff and Other Measures
• Mission India plans to be at 100 percent staffing within the next year. At the height of the COVID-19 pandemic, Mission India was operating at about 50 percent capacity. Now it is at about 70 percent and rising.
• In the meantime, the State Department is sending temporary staff to assist Mission India.
• Mission India continues to offer expanded Dropbox facilities to reduce the number of in-person visa interviews.
• Interview waiver and Dropbox cases are being sent to consular posts outside India and this will help reduce wait times for such applicants. Changes are expected within the next couple of weeks or so.
Visa Interview Appointments
• Student visa appointments will be scheduled for mid-to-late November through the end of December. Half of the appointments will open for booking in mid-October; the second half will open in mid-November.
• Mission India updated its system to allow for separate scheduling of exchange visitor (J) visas. Applicants should see a small number of appointments available each week.
• Mission India will prioritize first-time student visa applicants and will open up appointments for students who have been previously refused toward the end of the interview season.
• H and L visas will be prioritized and within the next few weeks Mission India will offer 100,000 appointments for 2023 for applicants in these categories including first time applicants and dependents.
• At present the visa appointment system automatically directs eligible candidates to Dropbox appointments. These applicants cannot request an expedited appointment. Hence, Mission India is modifying its system so that applicants can choose to disregard the Dropbox option and seek an in-person interview enabling them to request an expedited appointment.
• So far third-party agents have been able to use algorithms to book appointments as soon as they became available, rendering it difficult for the general public to do so. Mission India has introduced certain changes to make it more difficult for such third-party agents.
• For a long time Mission India made available “place holder” appointments to facilitate expedite interview requests. However, this is no longer the practice, and all appointments (for 2023 and 2024) are “real” appointments that will not be cancelled closer to the date as was the practice with “place holders.” However, applicants can change their appointment if an earlier appointment becomes available.
• Mission India receives more than a hundred expedite requests each week but do not have the capacity to accommodate such requests. Applicants are asked to make requests only if they are eligible under the very strict criteria published on their website.
• Mission India may grant expedite requests from business travelers for significant, large meetings, senior-level executive travel or in cases where the travel is linked to a contract with a U.S. company.
• Mission India expects the family-based green card backlog to be cleared within the year for those whose priority dates are current.
Visa Fees
• An announcement about the validity of Machine Readable Visa (MRV) fees is expected soon. Anyone who paid the MRV fee during the COVID-19 pandemic will need to book an appointment by Sept. 30, 2023, in order for the MRV fee to remain valid. The appointment can occur after September 30, 2023 but must be booked before that date. Once an appointment is scheduled, the MRV will be locked in and will be valid for the related visa application.

Learn now to hold two jobs on an H-1B visa!

The most common form of employment on an H-1B visa in the U.S. is full-time employment with a single employer. However, the regulations permit “concurrent employment.” This means that more than one employer can engage the services of an H-1B worker in certain circumstances. An H-1B petition filed to authorize an H-1B worker to be employed in another job concurrent with his current H-1B employment, is commonly referred to as a “Concurrent H-1B.”

The second employer who seeks to engage the H-1B worker in concurrent employment must go through the entire H-1B process as well as convince the USCIS that the employee is eligible for an H-1B and that the second job is a specialty occupation. This means that the employer must also pay the prevailing wages for a job code that is appropriate to the concurrent position. The second employer must initiate the application by filing a Labour Condition Application (LCA) attesting to these and other H-1 requirements.

The concurrent H-1B employment need not fall under the same specialty occupation as that of the applicant’s first employment.

A concurrent H-1B cannot be filed at the time of the initial H-1B selection for that employee that would be subject to the annual cap and the employer needs the employee’s services for a full-time job, which generally involves 35-40 hours of work a week. The employee may file a concurrent H-1B petition after the employee has an approved H-1B petition and the individual enters the U.S. in valid H-1B status.

There is no limit on the number of concurrent H-1Bs an employee can hold. But the cumulative hours that the employee will work must be plausible and possible.

One of the most important points to remember is that while H-1B employees are not permitted to work under contract, part-time employees, who do not need a visa sponsor, frequently do so. Thus, to maintain concurrent visa status, an employer-employee relation is crucial. It is therefore advisable to make sure foreign nationals are retained on the employer’s payroll and have a W-2 to confirm their employment with respective employers.

The USCIS does not require the primary sponsoring company be informed about the applicant’s H-1B concurrent employment. However, the second employer must specifically select “Concurrent Employment” in Form I-129 when filing the H-1B petition for concurrent employment.

One of the major concerns most H-1B applicants have is whether they can hold their second employment even if they have left or have been terminated from the original sponsoring company. It is important to note here that the non-immigrant will continue to maintain his H-1B status and can continue to work for the second employer irrespective of any changes in his first employment.

While this is a good avenue for a lot of H-1B visa holders to earn more and improve their financial status, having an approved H-1B petition does not automatically result in an approval of the concurrent H-1B petition.

With inputs from Manizeh Mistry, Associate Partner at LawQuest.

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