April 1, 2014 Filing Deadline for H-1B Cap Cases Approaching Quickly – Employees Missing Filing Window May Need to Wait Until April 1, 2015
The target filing date for cap subject H-1B petitions is April 1. The case file for any new H-1B petition subject to the cap should be opened within the next week or two in order to meet the filing deadline. While it is impossible to predict exactly when the FY2015 H-1B cap will be reached, it is likely to be the case that new H-1B visas will become unavailable sometime in the first 5 days of the filing season. Any proposed new H-1B petitions not filed when the quota opens on April 1, 2014 will run a high risk of encountering the cap. Last year, the cap was reached on April 5, 2013.
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS will begin accepting petitions for Fiscal Year (FY) 2015 H-1B visas from April 1, 2014. The soonest these visas can be used for work authorization will be October 1, 2014, which is the start of FY 2015.
Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by the CIS will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact an immigration attorney regarding any specific employees you may be considering for H-1B status.
USCIS recently announced that more than half a million employers now use its E-Verify system to confirm the lawful work authorized status of new employees. USCIS celebrated this milestone with the making of a short video, which can be seen at: www.uscis.gov . Though not perfect, USCIS has worked hard to correct many of the problems that plagued the system in its early years. USCIS has also implemented a self check feature that allows individual workers to confirm their own employment eligibility status and to seek to correct errors found in the system. The self check site can be found at: www.uscis.gov
The U.S. does not have a good temporary worker visa program to cover non-professional jobs. It is one of the reasons why there are 11 million persons present in the U.S. without a valid visa status. The H-2B visa program is supposed to cover these types of positions, and a separate H-2A program is supposed to cover agricultural workers. Beyond the protection of public safety, most immigration laws have been put in place to protect the U.S. workforce. This was overdone for the H-2B process. The procedures that apply to the H-2B program are especially onerous, limiting the use of the program to a few specific seasonal industries that have been able to work within its parameters.
An employer seeking to use the H-2B program needs to complete steps with three separate Federal agencies, including: an application to the Department of Labor, a petition to the USCIS subunit of the Department of Homeland Security, followed by a visa stamp application at one of the State Department’s consulates abroad. In adjudicating these cases, the DOL and USCIS will look to the nature of the employer’s need to confirm that no U.S. workers are available, and that foreign workers will not affect the wages and working conditions of similarly employed U.S. workers. They will also confirm that the employer is not seeking help on a continuous basis because of a chronic shortage, which would be an impermissible permanent need, instead of a permitted temporary need. This means that the employer needs to be able to establish a fixed employment end date that will be in the near and definable future.
Permissible temporary needs include a seasonal or a peak load need. A seasonal need is tied to a specific season and may be of a recurring nature. A peakload need should be one that is unusual and not likely to occur in the future. Other possibilities include a one-time occurrence or an intermittent need, both of which require documenting that the employer has not employed such workers in the past and is unlikely to need them again in the future.
Strict filing timetables apply to each step of the process. It is recommended that any new filing be started with the attorney’s office at least 6-8 months in advance of the target employment start date. The H-2B process is subject to an annual cap of 66,000, divided into a summer filing season and a winter filing season. Only employees from listed countries are eligible to obtain an H-2B visa. The current list can be found at: www.uscis.gov H-2B visa status is often limited to a duration of 10-12 months, sometimes less, with up to two extensions permitted, for a maximum possible stay of 3 years.
The release of technology or source code (with an exception for certain encryption code) to a foreign national in the U.S. is a deemed to be an “export” per 15 CFR §734.2(b)(2)(ii). Release includes visual inspection and oral exchanges regarding the technology. The deemed export rules do not apply to U.S. citizens, lawful permanent residents, or certain refugees and asylees, but other restrictions may apply. Related principals may also apply to other exchanges of information, including U.S. workers who take company computers (lap tops) or equipment abroad in connection with their business duties.
Rooted in the Export Administration Act of 1979, the current rules evolved over time and have been in their current form for several years now. These rules are not new. What is new is the USCIS requirement that employers certify that they are aware of the applicable rules and that they have determined that an export license is not required or that if required, the necessary license will be obtained prior to the release of restricted technology to the foreign worker. This attestation requirement applies to H-1B, L-1, and O-1A petitions. Additional information on technologies controlled by these regulations can be found at the Export Administration Regulations (EAR) found at: 15 CFR §770-774 and the International Traffic in Arms Regulations (ITAR) found at 22 CFR Parts 120-130. It is also noted that the EAR publishes a Commerce Control List (CCL) of “dual use” items that can be found at: www.bis.doc.gov. ITAR publishes a list of restricted defense related technologies that can be found at: www.pmddtc.state.gov . Determinations can only be made on a case by case basis. It is noted that while most commercially available technologies are not subject to these restrictions, some advanced scientific and manufacturing equipment, as well as certain computer software and hardware systems, may fall within the realm of restricted technologies.
This area of law is separate from immigration law. Employers that do not have in-house legal capabilities to address questions in this area may need to consult and work with an export control attorney, or obtain an advisory opinion from the U.S. Department of Commerce, which administers these regulations. The Department of Commerce Bureau of Industry and Security contact information can be found at: www.bis.doc.gov. However, persons directly contacting any government agency with enforcement responsibilities should always be aware that communications create a record with the agency which could later be used against the employer if a violation is deemed to have occurred. Working through an attorney comes with the benefit of the attorney-client privilege, which may be an important tool in defending the company against an enforcement action. Obtaining attorney assistance can also help to demonstrate a company’s good faith efforts in performing due diligence to come into compliance with the deemed export rules.