Is the H-1B Lottery Illegal?

Each year, Congress allows 65,000 H-1B visas for foreign workers, with an additional 20,000 visas for individuals with master’s degrees from the United States. Unfortunately, market demand for the visas is much higher. In an attempt to deal with that issue, USCIS has implemented a lottery system to award these visas. In the lottery, 65,000 applications are accepted for processing and the rest are returned.

As a method to deal with a complex immigration issue, the lottery has attracted a lot of negative attention from policy analysts, individuals applying for the visas, and immigration lawyers. Continue reading

When Can the Department of Labor Investigate Me for Failure to Meet LCA Conditions?

As an employer working with foreign employees, you have many different obligations and requirements, and navigating this complex web of regulations and laws can be difficult without the insight of a New Jersey immigration attorney. Just one of the many requirements are that you submit accurate details with the Labor Condition Application when you work with H-1B visa employees. Read on to learn more about LCA.

 

This is why it is strongly recommended that you partner with a New Jersey immigration attorney as soon as possible to handle any outstanding issues as well as to set you up for success in the future.

 

Employers making use of the H-1B visa program have a lot of various requirements that they must comply with, but this process can be overwhelming and prone to mistake-making if all employers are not clear on their role. Trying to wrap your head around these regulations, however, can be problematic. Rather than wondering how you can best comply and whether you’re missing any details, it’s a good idea to hire a New Jersey immigration attorney to help you with all matters H-1B. This minimizes the chances that you’ll be overwhelmed with or confused by the information and instead allows you to

 

Basics of Failure to Meet Conditions in Labor Condition Applications

The United States Department of Labor has the authority to investigate H-1B employers for alleged failure to meet the conditions outlined in the Labor Conditions Application

for their employees’ H-1B visas. The Department of Labor can also initiate an investigation against an employer who has allegedly engaged in conduct prohibited by the LCA process.

 

When Can the Department of Labor Initiate an Investigation Like This?

These investigations can be started after receiving a complaint by an aggrieved entity or person or by the Department of Labor without ever receiving a complaint. The Department of Labor may also initiate investigation after receiving credible information from a known source that an employer is knowingly violating the conditions of the LCA.

 

Although specific complaints or concerns can start this kind of investigation, remember that investigators have some discretion over their decision to move forward with one. You should always be prepared for a potential investigation. The best way to avoid one is to ensure that you have looked over all possible documents carefully and done everything possible to stay compliant, but it’s also just as important to be ready to handle an investigation if one arises.

 

In either case, it is worth having an immigration attorney to speak with so that you can get your questions answered promptly and effectively. These matters might seem like small details, but the cost of non-compliance or a mistake can be very problematic. Hiring the right New Jersey immigration attorney is essential for protecting your rights at all stages.

 

What Role Does USCIS Play in These Kinds of Investigations?

 

As is indicated above, the Department of Labor plays a role in these investigations, but it is not the only government agency empowered to do so. Knowing what to expect and who may contact you regarding an investigation can help you figure out how to respond appropriately.

 

Separate from the Department of Labor, United States Citizenship and Immigration Services can also start their own investigation by performing random and unannounced site visits to H-1B employers. The purpose of these site visits is to ensure compliance with H-1B rules and provisions. These are conducted by the USCIS Office of Fraud Detection and National Security. Therefore, an employer could be open to potential investigation at numerous different stages and it is imperative to be knowledgeable about your rights as well as your responsibilities being an H-1B employer.

 

The Six Most Common LCA Mistakes Made by Employers

Violating the LCA could lead to consequences and it is imperative that you think about all compliance issues from the outset of working with any H-1B employees. Your processes and structures can have an important implication on whether or not USCIS or the Department of Labor identifies violations. What follows are the six most common categories leading to violations.

 

Failing to File an Amended LCA When an H-1B Employee Changed Locations

The location of an H-1B employee’s work has to be listed when you file an LCA. This is in fact the only physical work site in which an H-1B employee is allowed to work. If an employee works for 60 collective days or 30 consecutive within one 12-month period in a location that has not been listed on the LCA, the employer is responsible for filing a new LCA.

 

Failing to Maintain a Public Access File for Each LCA

A public access file should have the following information:

  •   Summary of the benefits offered to US workers in the same classification as H-1B applicants.
  •   Copy of documentation that the employer used to set up a prevailing wage and documentation that the employee has satisfied the notification requirement.
  •   The full explanation of the system the employer used in order to determine the actual wage that an employer paid.
  •   Documents outlining the wage rate to be paid to an H-1B non-immigrant.
  •   Copy of a certified LCA.
  •   Proof of compliance with internal notice requirements for each work sites.

Failing to Maintain Responsibilities for an H-1B Dependent Employer

There are several different requirements for being an H-1B dependent employer. you may be classified as an H-1B dependent employer if you meet any of the following classifications:

  •       50 or more full-time employees with 15% or more of these being H-1B workers.
  •       26 to 50 full-time employees and more than 12 H-1B workers.
  •       Less than 25 full-time employees but more than 7 H-1B workers.

 

Failing to Provide Internal Notices, Wage Memoranda or Copies of The LCA to The Alien Employee

The employer is responsible for giving a copy of the LCA to each employee at all of their work sites. Failing to do this could lead to a fine for each violation.

 

Failing to Include the Accurate Wage On The LCA

The LCA must correctly explain the wage given to the H-1B employee.

 

Failing to Select the Right Wage Level for an H-1B Employee

Wage levels are categorized into four separate sections. The H-1B employer is responsible for selecting the appropriate level for each H-1B employee. If you have more questions about this process, it’s important to consult with an experienced New Jersey immigration attorney as soon as possible.

 

One New Jersey Immigration Attorney’s Thoughts On the Issue

Penalties for violation on LCA attestations and other H-1B provisions can be severe and could even lead to criminal prosecution. Employers need to be careful about documenting their adherence to the attestations and other requirements of the LCA. They need to keep appropriate documentation handy at all times in case they are investigated by the Department of Labor or visited by USCIS.

 

Do you need help with H-1B visa issues? Consult with a New Jersey immigration attorney to learn more about your rights and responsibilities.

                                                                                                             

 

What Are H-1B Visa Cap Exemptions?

Many employers see a great deal of benefits in bringing over talented employees to work in their businesses using the H-1B visa program. This program allows for up to 65,000 qualified individuals to be placed in a general lottery for visas to come or stay in the U.S. to work. That being said, increasing competition and claims that the lottery is unfair raise a lot of questions for employers, especially those who may not have to go through the lottery in the first place. Plenty of employers don’t know much about the H-1B visa cap exemptions, but understanding this category better may allow for less headaches and greater ease in working with foreign employees.

 

Cap Versus Exempt: What You Really Need to Know

 

While there is numerical limit for the number of H-1B visas that are given out each individual year, congress has provided for certain exemptions to this limit. When it comes to applying for H-1B visas, it pays to be informed and to be prepared for all aspects of the process. The more you know the less likely the process is to be stressful for you. Far too many employers and employees do not know enough about H-1B cap exemptions. Read on to learn more about the basics of these exemptions as well as how to set yourself up for success.

 

If you think that your situation might qualify for an exemption, it is definitely worth investigating. There are many employers around the country aware of the H-1B program, but applications are on the rise. For example, in 2016, there were 236,000 applications for those 65,000 spots outside of the cap exemptions category. With greater demand, it pays to partner with a New Jersey immigration attorney who understands the system and can help you determine whether or not you might be able to work under an exemption.

 

Why Does the Exempt Category Exist?

 

The exempt category was put into place to ensure that the United States was able to receive enough appropriate skilled labor for certain establishments in specific sectors. Being sponsored on an H-1B visa under these exempt categories can happen throughout the year. Certain H-1B cap exempt employers that can hire professionals on H-1B visas throughout the year regardless of the current quota limit include:

  • A nonprofit entity associated with an institution of higher education.
  • A nonprofit institution of higher education.
  • A nonprofit research organization or research organization associated with the government.
  • Some for-profit contracting and consultant firms.

 

The exemption category has become increasingly popular as employers realize that the competition and the seemingly random lottery for the general H-1B visas often means a shutout. Some employees who have been going in the lottery for several years, for example, have been unable to obtain a visa. This presents numerous problems for both employees and employers.

 

Even if you’re not sure whether or not you have any openings that could potentially be linked to a cap exemption now, it’s worth figuring out the basics of these exemptions in the event that something arises in the future. Cap exemptions are only available for particular institutions, but your company might need an employer on a partner project with one such institution in the future, and being clear about your needs in this scenario could be helpful.

 

Who Qualifies for H-1B Visa Cap Exemptions?

 

Nonprofit Entities Related to an Institution of Higher Education

The majority of H-1B sponsors in this category are medical hospitals or research labs that are attached to universities and colleges. There are other kinds of employers in this category who may have shared ownership or control by the federation or same board as that which operates in a higher education institution.

 

Nonprofit Institution of Higher Education

The majority of employer sponsors in this category are universities and colleges. The majority of universities and colleges in the United States are nonprofit.

 

Nonprofit Research Organizations or Government Research Organizations

There are several hundred kinds of organizations that fall into this category. The company sponsoring an H-1B visa under this exempt category must be a research entity and nonprofit.

 

For-Profit Entities

If you are a consultant or contracting firm that does not meet other categories listed above, you may be eligible for H-1B visa connections provided that your consulting or contracting firm places for an employee’s exclusively at one of the above listed categories.

 

Specifics of These Exemptions

If an H-1B beneficiary falls into one of the above listed categories, his or her application is not subjected to the 65,000 cap placed on H-1B visas in general. USCIS has further clarified that the use of the preposition ‘at’ means that the petitioner requesting an H-1B visa does not necessarily have to be at the research organization or institute of higher education.

 

Third party petitioners who are employers of the beneficiary who put the beneficiary on a project working for a research organization or an institute of higher education can even themselves file a cap of exempt petition. the primary distinguishing factor here is that the beneficiary must be performing job duties at the qualifying organization directly and for the primary purpose of that qualifying organization.

 

One New Jersey Immigration Attorney’s Thoughts About H-1B Cap Exemptions

This is a major issue for staffing companies. As long as the project that a staffing company wants to place an H-1B worker with is one of the qualifying institutions listed above, and the beneficiary and the work done by him or her in that project is in line with the normal essential and primary work for the qualifying institution, the staffing company is eligible to file an H-1B petition that is exempt from the cap. That being said, if the beneficiary is removed from a project of the qualifying institution and put on a project for an institution that does not meet the requirements, the petitioner would then be required to file a cap subject H-1B visa protection in order to maintain the beneficiary’s H-1B status.

 

As you can see, these issues can be extremely complex and warrant the insight of an experienced New Jersey immigration attorney. All staffing firms interested in how these issues impact their ability to hire for an employee should communicate with a knowledgeable attorney to learn more about the process.

 

With more employers wanting to take advantage of the H-1B visa program, you need a New Jersey immigration attorney you can trust. You need a lawyer who understands the rules and can help point you in the right direction when applying for the visa lottery or when you’re seeking approval under a cap exemption. My firm is committed to providing quality representation for companies who need it to give you more organization, better understanding, and to serve as a sounding board for your questions about the program.