New H-1b Visa Rule Calls for Lottery Selection Based on Wage Level

UPDATE: The Biden administration has put a 60 day hold or “freeze” on implementation of this new rule. Therefore it will not apply in this year’s lottery selection process.

Last Friday, January 8, 2021, USCIS published a final regulatory rule which changes the way that H-1b visas will be evaluated in the H-1b visa cap season lottery.

What is the new rule?

Under the existing rule, H-1b visa lottery winners are chosen based on a random selection process. The new rule calls for lottery selection based on the wage level used in an H-1b visa petition. This means that H-1b visa numbers will be allocated according to salary levels, giving priority to those earning the highest salaries in their respective occupations and geographic areas of employment.

Will the new rule affect this year's H-1b cap season?

As of now, that is unclear. The rule is scheduled to go into effect on March 9, 2021. Incoming President Biden has the authority to put a freeze on all unimplemented rules that exist at the time he takes office, including this one. The freeze could be up to 60 days, which means this rule would not apply to this H-1b cap season. However, Biden has not committed to freezing this rule, and he has expressed support for allotment of H-1b based on wage levels. Therefore we will need to wait and see.

Need assistance with an H-1b visa cap season petition? Contact us today at theteam@huwelaw.com or 415-849-1199.

Getting Around the Suspension of H-1b and L-1 Visas: National Interest Exceptions

Many foreign nationals know that on June 22nd, Presidential Proclamation 10052 was issued. The Proclamation suspends entry into the United States of applicants for certain visas, including (among others) H-1B, H-2B, L-1, and L-2 visas. It does not apply to applicants who were in the US on its effective date (June 24th) and who already had a valid visa in one of the classifications mentioned above. It is nonetheless a sweeping ban applicable to hundreds of thousands of nonimmigrants, which has resulted in multiple lawsuits being filed against the federal government to enjoin it. 

In response to these lawsuits, on August 12th the government issued new guidance that includes expanded "national interest" exceptions to the Proclamation. This new guidance will presumably help many professionals and companies because it includes exceptions such as the following:

1. The applicant is seeking to resume ongoing employment in the US in the same position with the same employer and visa classification

2. The applicant is a technical specialist, senior level manager, or other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the US

3.  The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15%

4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed

5. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need

6.  Denial of the visa pursuant to the Proclamation would cause financial hardship to the US employer

However, in practice it will be difficult for a foreign national to benefit from a national interest exception. In order to do so, they must be able to get over the hurdles of (1) successfully scheduling an emergency appointment at the applicable US consulate abroad during a pandemic that has resulted in extremely limited visa services, and (2) successfully arguing that they qualify for an exception in the face of consular officers who have unchecked discretion to approve or deny these applications. Furthermore, the new guidance in conjunction with the Proclamation itself constitute an attempt by the executive branch to circumvent the legislative procedure and create new statutory requirements for H-1b and L-1 visas. These issues will result in lawsuits continuing to move forward against the federal government, which may result in an injunction on the Proclamation itself. Stay tuned . . . 

. . . and in the meantime, contact us for help at theteam@huwelaw.com or 415-496-9040. 

Why to Prepare for H-1b Cap Season Now

H-1b cap season is rapidly approaching. USCIS has created a new lottery system, which changes the process and requires advance planning. Here is why you should get started now.

In order to deter fraud and gaming of the system, USCIS will require that all employers attest they intend to file an H-1b visa for each candidate they enter into the lottery. It is thus important to conduct basic due diligence to ensure that a bona fide application will later be able to be submitted for each candidate who wins a lottery slot. USCIS will be tracking companies that have a pattern of not filing after winning lottery slots for their candidates.

USCIS will consider applications on a first-in, first-out basis, and premium processing is not guaranteed. Lottery results will be shared no earlier than 10 days before the filing window opens on April 1st. It takes at a minimum several weeks to get an LCA certified and a petition ready to file. If you need to be in the front of that line because the employee’s OPT is going to run out or that person is needed here as soon as possible, it is best to have the application ready to go.

Need help with preparing for H-1B season?

Contact us at theteam@huwelaw.com or 415-496-9040.

Get Ready for H-1b Cap Season

H-1b cap season is rapidly approaching. This year, it is especially important to be ready.  Companies must register all candidates in March and will have only 90 days to submit applications for lottery winners.

Three Easy Things You Can Do Now

1. Track down (or request) the sponsoring company's IRS FEIN issuance letter - especially if your company has not filed an LCA before. We can get the company registered with the Department of Labor.

2. Check your VIBE profile and correct errors. USCIS checks all petitioning companies against their Validation Instrument for Business Enterprise ("VIBE") database. Any address mismatch results in an RFE, so you should check and correct your company's profile now.  

3. Sign up for our free January 15th webinar on getting ready for H-1b cap season. Geared towards small and early-stage companies, this webinar will provide answers and more practical tips about things you can do now.  All participants will get a complimentary one-on-one consultation with an attorney after the webinar. Start the new year right and get ahead of the curve.

Need help with your H-1B visa? Contact us at theteam@huwelaw.com or 415-548-7067 today.

How Does the New H-1b Registration Affect My Business?

USCIS has made it official: All companies must register between March 1st and March 20th for the H-1b cap season lottery. Registration will require basic information about the company sponsor and the beneficiary, an attestation of intent to file, and a $10 registration fee. USCIS will conduct the lottery based on this registration and lottery winners will have 90 days to submit their H-1b applications.

How does this change affect my business?

This year it will be easier and cheaper to enter the H-1b lottery.

We expect that there will be many more participants in this year's H-1b lottery. The chances of any specific beneficiary winning the lottery will be lower than in prior years. Developing a good contingency plan with your attorney is critical. Your candidate may be eligible for another visa or it may make sense to start the green card process early.

You can take advantage of the lower bar to entry and register more candidates than you may have before. If a security software engineer is a critical position, consider submitting registrations for multiple beneficiaries. Remember that a beneficiary can have multiple candidate petitions. So, if there is a highly desirable candidate with multiple offers, it is worth seeing if your company's registration can be the one to win that lottery slot for them.

Join us on January 15th at 9 am for a free webinar with attorney expert Isabelle Hurtubise to prepare for the 2020 H-1b cap season. Hurtubise Weber Law specializes in employment visas and business immigration for small and early stage companies.

Need help with your H-1b application? Contact us at theteam@huwelaw.com or 415-413-8760 today.

The E-3 vs. the H-1b Visa: The Australian Advantage

The US and Australia have a treaty that, among other things, permits Australians to work in the US on an E-3 employment visa. Just like an H-1b visa, the beneficiary still needs a US company sponsor, the job must be a specialty occupation and the company must pay prevailing wage. However, the E-3 has several advantages over its H-1b cousin:

1. It is effectively always available. There is a cap, but it has never been close to being reached. So Australians can apply anytime, there is no H-1b style lottery.

2. The beneficiary can apply at the consulate. A petition with USCIS is not required, which saves time and money. (You do still need to file an LCA with the Department of Labor.)

3. There is no maximum stay on an E-3. H-1b holders are limited to six years total. While an E-3 approval is good for two years, there is no limit on the number of extensions you can file. Extensions can be filed in the US through USCIS or by a return visit to the consulate. (Although at some point, the officer may question the beneficiary's required nonimmigrant intent.)

4. The spouse can work. After entering on an E-3 dependent visa, the spouse can apply for general work authorization. This is a major benefit to your employee.

So, is there ever a reason to file for an H-1b for an Australian? Sometimes, if the company is planning on sponsoring a green card. An H-1b is a dual intent visa and allows for international travel during a short time during the green card process when an E-3 visa holder could not leave the US. Each H-1b is good for three years rather than two, which means less frequent renewals. But these small advantages are often outweighed by the benefits of the E-3 visa.

What to know more about how to hire an Australian citizen? Contact us at 415-496-9040 or theteam@huwelaw.com for a Free Employer Consultation.

H-1b Basics for Prospective Employees

H-1b season is coming! If you are a prospective employee, here is what you need to know:

1. You need a U.S. company sponsor. Every H-1b petition must be filed by a U.S. company with a Federal Employer Identification Number (FEIN). That employer is committing to a specific prevailing wage as set by the Department of Labor (DOL).

2. There are a limited number of new H-1b visas issued each year. USCIS accepts petitions only during the first week of April. Less than half are selected for further consideration through a random lottery system.

3. The job must require a minimum of a U.S. bachelor's degree in a specific field. The beneficiary must also possess the equivalent of a U.S. bachelor's degree, but the key is that the job itself must require a degree. This is determined by the complexity of the job duties, past case law, and the strength of your attorney's advocacy.

4. The employer must pay prevailing wage. Prevailing wage is determined by the DOL based on the Standard Occupational Classification (SOC) Code and location of the worksite. Similar SOC codes can have different prevailing wages, even within the same city.

5. An H-1b transfer is just a cap exempt new H-1b petition. The current administration gives no deference to prior H-1b petition approvals. Each petition stands alone on its own merits.

Want to know more? Need other options? Contact us at theteam@huwelaw.com or 415-496-9040 today.