sai
03-25 11:43 AM
How can a attorney help in getting H1 stamped at a Canadian US consulate ?
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02-10 08:50 PM
Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2010 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is still in recovery mode, and employers are careful before hiring. Yet, many Immigration experts feel the Cap will be met early this year, but when is the big question.
With drastic changes to the Labor Condition Application (http://www.visalawyerblog.com/2009/07/icert_portal_for_lca_filing.html)process (now taking more than 7 days to process), as well as unreasonable denials (http://www.visalawyerblog.com/2009/08/h1b_visa_lawyer_about_icert_wo.html), planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.
Background
On October 21, 1998 Congress passed, and the President signed into law, the much debated American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277 (hereinafter ACWIA). This legislation was first introduced by Senator Spencer Abraham (R-MI), the Chairman of the Senate Subcommittee on Immigration, in response to the inadequate numbers of H-1B visas available in any fiscal year. As part of the Immigration Act of 1990, Congress imposed a 65,000 per year cap on these visas. In 1997, the cap was reached prior to the end of the fiscal year. The situation grew to crisis proportions in fiscal year 1998 when all 65,000 visas numbers were taken in May of 1998.
In early March 1998, Senator Abraham introduced a bill entitled, "The American Competitiveness Act." The legislation was introduced on the heels of numerous reports and hearings concerning the high tech worker shortage in the United States. The primary goal of the legislation was to address the looming exhaustion of the H-1B professional or specialty occupation worker visa numbers. (http://www.h1b.biz/lawyer-attorney-1137085.html)
The ACWIA went through many different stages before an agreement could be reached. A complete elimination of the cap had originally been proposed by Senator Abraham. The legislation was then modified to increase the number of H-1B visa numbers available during the government fiscal year; provide additional funds for scholarships in the computer science and mathematics areas; increase enforcement of the Department of Labor component of the H-1B visa process; and provide clarification on the prevailing wage requirements of the process. The legislation also addressed permanent residence by providing for an extension of the H-1B visa should a permanent residence petition be pending, and through restructuring the allocation of the employment-based immigrant visa numbers.
This legislative game between conservative isolationists/liberal protectors of the U.S. workforce and moderate Democrats and Republicans supporting business needs and demands, caused chaos among U.S.-based businesses in need of skilled professional workers. From May 11, 1998 until October 1, 1998 U.S. businesses, research institutions and other organizations were unable to recruit foreign workers as temporary professionals. With the U.S. economy still booming and unemployment rates remaining at an all-time low, businesses, especially in the high tech sector, encountered many problems as a result of the cut-off in H-1B visa availability. These problems included, but were not limited to, taking employees off the U.S. payroll, sending employees back to their home country or to sites outside the U.S. as well as the termination of some critical development projects.
Requirements in the Statute
The ACWIA purportedly balances the need for increased professional visas numbers for foreign workers and the desire to protect the U.S. workforce. The following is a summary of the significant changes made by the legislation.
A. Temporary Increase in the Number of Professional Visas Available
There will be an increase from 65,000 to 115,000 visas for fiscal year 1999 and 2000 (through September 30, 2000). In fiscal year 2001, 107,500 visas will be available. Beginning October 1, 2001 the numbers will revert back to 65,000.
B. Electronic Postings
LCA notices may be posted electronically in situations without a bargaining representative. This provision was effective upon date of enactment.
C. Attestations Required for Employers Dependent Upon Foreign Professionals
U.S. employers of 51 or more employees, whose workforce is comprised of 15% or more foreign nationals in the H-1B category are considered dependent employers and must make certain attestations. Employers will also be considered dependent if they employ 26- 50 full time employees and have more than 12 H-1B employees or if they employ 7 -25 employees and have more than 7 H-1B employees.
The dependent employer must attest that it has not and will not displace a U.S. worker within 90 days before and 90 days after filing the visa application. This attestation carries through to employers who place employees at another worksite. The H-1B dependent employer must also attest that it has taken good faith steps to recruit U.S. workers using industry wide standards and has offered the position to any U.S. worker who is equally or better qualified for the job the foreign worker is sought.
H-1B employees with a Master�s degree or a salary of $60,000 or higher are not included in the attestation requirements and for the first 6 months following the implementation will not be included in the dependent employer calculation.
D. Increased Enforcement and Penalties for Violations
The Department of Labor may fine employers between $1,000-$35,000 per violation and preclude participation in the H-1B program for up to three years.
E. Back Benching H-1B Employees
Employers must pay H-1B nonimmigrants the wage stated on the H-1B petition even if the beneficiary is in nonproductive status. This does not apply to non-productive time due to non work related factors.
F. Benefits
Employers must offer foreign workers benefits and eligibility for insurance, disability, retirement and savings plans, stock options, etc., on the same basis as offerings made to U.S. workers.
G. Additional Fee for Use of H-1B Program
Beginning December 1, 1998, employers are required to pay an additional fee of $500 for an initial H-1B petition and for the first extension. These fees are to be used to support job training programs and scholarships for U.S. workers.
H. Prevailing Wage Computations
For institutions of higher education, related or affiliated non-profit entities or non profit or governmental research organizations, the prevailing wage shall take into account employees at such institutions in the area of employment.
I. Academic Honoraria
Payments of honoraria may now be made to B-1 and B-2 visitors for usual academic activity lasting 9 days at an academic institution or affiliated non-profit entity or a non-profit governmental research organization. No more than 5 honorarium may be received within a six month period.
Employers based in the U.S. now have a temporary reprieve when hiring foreign professionals. However, it is uncertain whether the 65,000 visas for this fiscal year will be adequate to meet the demand for this year and next. Some government officials estimate that visas will be unavailable as early as the beginning of May 2010. In addition, it is still unclear what is on the legislative horizon, reform or not. Pro Immigrants want to come with a proposal to reform legal immigration. U.S. employers employing foreign nationals in any capacity would be well advised to carefully monitor future legislative and regulatory proposals on the horizon. All I can say is that if you plan on hiring a foreign worker, you better call your lawyer now!!!
More... (http://www.visalawyerblog.com/2010/02/h1b_visa_lawyer_the_filing_sea.html)
With drastic changes to the Labor Condition Application (http://www.visalawyerblog.com/2009/07/icert_portal_for_lca_filing.html)process (now taking more than 7 days to process), as well as unreasonable denials (http://www.visalawyerblog.com/2009/08/h1b_visa_lawyer_about_icert_wo.html), planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.
Background
On October 21, 1998 Congress passed, and the President signed into law, the much debated American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277 (hereinafter ACWIA). This legislation was first introduced by Senator Spencer Abraham (R-MI), the Chairman of the Senate Subcommittee on Immigration, in response to the inadequate numbers of H-1B visas available in any fiscal year. As part of the Immigration Act of 1990, Congress imposed a 65,000 per year cap on these visas. In 1997, the cap was reached prior to the end of the fiscal year. The situation grew to crisis proportions in fiscal year 1998 when all 65,000 visas numbers were taken in May of 1998.
In early March 1998, Senator Abraham introduced a bill entitled, "The American Competitiveness Act." The legislation was introduced on the heels of numerous reports and hearings concerning the high tech worker shortage in the United States. The primary goal of the legislation was to address the looming exhaustion of the H-1B professional or specialty occupation worker visa numbers. (http://www.h1b.biz/lawyer-attorney-1137085.html)
The ACWIA went through many different stages before an agreement could be reached. A complete elimination of the cap had originally been proposed by Senator Abraham. The legislation was then modified to increase the number of H-1B visa numbers available during the government fiscal year; provide additional funds for scholarships in the computer science and mathematics areas; increase enforcement of the Department of Labor component of the H-1B visa process; and provide clarification on the prevailing wage requirements of the process. The legislation also addressed permanent residence by providing for an extension of the H-1B visa should a permanent residence petition be pending, and through restructuring the allocation of the employment-based immigrant visa numbers.
This legislative game between conservative isolationists/liberal protectors of the U.S. workforce and moderate Democrats and Republicans supporting business needs and demands, caused chaos among U.S.-based businesses in need of skilled professional workers. From May 11, 1998 until October 1, 1998 U.S. businesses, research institutions and other organizations were unable to recruit foreign workers as temporary professionals. With the U.S. economy still booming and unemployment rates remaining at an all-time low, businesses, especially in the high tech sector, encountered many problems as a result of the cut-off in H-1B visa availability. These problems included, but were not limited to, taking employees off the U.S. payroll, sending employees back to their home country or to sites outside the U.S. as well as the termination of some critical development projects.
Requirements in the Statute
The ACWIA purportedly balances the need for increased professional visas numbers for foreign workers and the desire to protect the U.S. workforce. The following is a summary of the significant changes made by the legislation.
A. Temporary Increase in the Number of Professional Visas Available
There will be an increase from 65,000 to 115,000 visas for fiscal year 1999 and 2000 (through September 30, 2000). In fiscal year 2001, 107,500 visas will be available. Beginning October 1, 2001 the numbers will revert back to 65,000.
B. Electronic Postings
LCA notices may be posted electronically in situations without a bargaining representative. This provision was effective upon date of enactment.
C. Attestations Required for Employers Dependent Upon Foreign Professionals
U.S. employers of 51 or more employees, whose workforce is comprised of 15% or more foreign nationals in the H-1B category are considered dependent employers and must make certain attestations. Employers will also be considered dependent if they employ 26- 50 full time employees and have more than 12 H-1B employees or if they employ 7 -25 employees and have more than 7 H-1B employees.
The dependent employer must attest that it has not and will not displace a U.S. worker within 90 days before and 90 days after filing the visa application. This attestation carries through to employers who place employees at another worksite. The H-1B dependent employer must also attest that it has taken good faith steps to recruit U.S. workers using industry wide standards and has offered the position to any U.S. worker who is equally or better qualified for the job the foreign worker is sought.
H-1B employees with a Master�s degree or a salary of $60,000 or higher are not included in the attestation requirements and for the first 6 months following the implementation will not be included in the dependent employer calculation.
D. Increased Enforcement and Penalties for Violations
The Department of Labor may fine employers between $1,000-$35,000 per violation and preclude participation in the H-1B program for up to three years.
E. Back Benching H-1B Employees
Employers must pay H-1B nonimmigrants the wage stated on the H-1B petition even if the beneficiary is in nonproductive status. This does not apply to non-productive time due to non work related factors.
F. Benefits
Employers must offer foreign workers benefits and eligibility for insurance, disability, retirement and savings plans, stock options, etc., on the same basis as offerings made to U.S. workers.
G. Additional Fee for Use of H-1B Program
Beginning December 1, 1998, employers are required to pay an additional fee of $500 for an initial H-1B petition and for the first extension. These fees are to be used to support job training programs and scholarships for U.S. workers.
H. Prevailing Wage Computations
For institutions of higher education, related or affiliated non-profit entities or non profit or governmental research organizations, the prevailing wage shall take into account employees at such institutions in the area of employment.
I. Academic Honoraria
Payments of honoraria may now be made to B-1 and B-2 visitors for usual academic activity lasting 9 days at an academic institution or affiliated non-profit entity or a non-profit governmental research organization. No more than 5 honorarium may be received within a six month period.
Employers based in the U.S. now have a temporary reprieve when hiring foreign professionals. However, it is uncertain whether the 65,000 visas for this fiscal year will be adequate to meet the demand for this year and next. Some government officials estimate that visas will be unavailable as early as the beginning of May 2010. In addition, it is still unclear what is on the legislative horizon, reform or not. Pro Immigrants want to come with a proposal to reform legal immigration. U.S. employers employing foreign nationals in any capacity would be well advised to carefully monitor future legislative and regulatory proposals on the horizon. All I can say is that if you plan on hiring a foreign worker, you better call your lawyer now!!!
More... (http://www.visalawyerblog.com/2010/02/h1b_visa_lawyer_the_filing_sea.html)
hopefulgc
01-10 03:02 PM
good idea
Hi ALL,
Here is idea. It can happen to you next week, sorry, but its possible.
Lets say you lost your job next Friday (usually Fridays right). And getting your next job will take you another 6 months, if lucky.
What will you do. Will you start pressing a panic button to push for reducing EB2/3 backlogs. Will you write to Obama and team then?.
I know some of us are unfortunate to be in the situation, not me, but who knows??.
So, can we just imagine to be in such a situation and bring more and more attention to the new goverment. Just act as if you lost your job and in despair.
Start writing. Dont just dream for the 11th or 13th for VB dates. Lets put some action.
Sorry if I sound depressing, but lets act before its too late..
Hi ALL,
Here is idea. It can happen to you next week, sorry, but its possible.
Lets say you lost your job next Friday (usually Fridays right). And getting your next job will take you another 6 months, if lucky.
What will you do. Will you start pressing a panic button to push for reducing EB2/3 backlogs. Will you write to Obama and team then?.
I know some of us are unfortunate to be in the situation, not me, but who knows??.
So, can we just imagine to be in such a situation and bring more and more attention to the new goverment. Just act as if you lost your job and in despair.
Start writing. Dont just dream for the 11th or 13th for VB dates. Lets put some action.
Sorry if I sound depressing, but lets act before its too late..
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rajivkumarverma
10-16 07:13 PM
Again always track ur al aplications and DONT depend on lawyer .
Yes you are right From next time I will do that
Yes you are right From next time I will do that
more...
swita
03-25 02:56 PM
Thanks for your replies....Do you have to go on vacation before you file the labor certification application or can you file your PERM and then go on vacation and then apply for recapture .
hopefulgc
09-16 10:21 PM
fulltime mba would have to be on F1 AFAIK. There is a detailed talk from attorney rajiv khanna's site about this. Please search on immigration.com
Hi All,
I am on H1 (beginning of my second 3 yr term on H1), EB2labor pending ( two US MS degrees in engineering) & I would like to apply for a full time MBA to NYU .
I would like to know if this is possible while being on H1. I know i can apply for a part time program.. but I would like to pursue a full time MBA or would I have to convert to a F1 ?..
How about pursuing a full time MBA with EAD ( 485 PENDING)
I would like to plan for a future scenario, as I would definitely want to pursue a MBA. Can you guys shed some light on this topic ?
Hi All,
I am on H1 (beginning of my second 3 yr term on H1), EB2labor pending ( two US MS degrees in engineering) & I would like to apply for a full time MBA to NYU .
I would like to know if this is possible while being on H1. I know i can apply for a part time program.. but I would like to pursue a full time MBA or would I have to convert to a F1 ?..
How about pursuing a full time MBA with EAD ( 485 PENDING)
I would like to plan for a future scenario, as I would definitely want to pursue a MBA. Can you guys shed some light on this topic ?
more...
chanukya
07-17 05:48 PM
Check this out.
http://www.murthy.com/uscis_update.pdf
http://www.murthy.com/uscis_update.pdf
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uslegals
11-04 03:15 PM
radhay - i have sent you a PM. I would appreciate it if you can please respond.
Thank you!
Thank you!
more...
Suva
06-05 05:28 PM
My H1b extension was applied on Jan 15. It is approved this week.
Hi,
I Applied H1b 8th Year Extension on Jan 9th. Still waiting Anybody has this kind of situation? my Case number Starts with WAC
I Applied my H1b extn on Jan 9th , and i went to India on 18th Jan and came back on 18th Feb using my AP is this could be cause for the delay.
Please share your experiences and ideas
Thank You,
Raj.
Hi,
I Applied H1b 8th Year Extension on Jan 9th. Still waiting Anybody has this kind of situation? my Case number Starts with WAC
I Applied my H1b extn on Jan 9th , and i went to India on 18th Jan and came back on 18th Feb using my AP is this could be cause for the delay.
Please share your experiences and ideas
Thank You,
Raj.
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gc_on_demand
03-18 01:09 PM
Hi gc_on_demand:
Great Analysis! What are your predictions for EB3 for this year?
You mean to say that EB3 (40K) is already used up for this year :-(
Thanks,
Rayoflight
All Eb3 will get close to 40k this year . There will not be any spill over from Eb1 or Eb2. Also Eb3 ROW is not current so chances are very minimal that Eb3 india and China will get any exxtra visa. Only CIR or Recapture is hope for Eb3. OR as I said in earliar post that if Labor dept makes too hard to file for Eb2 in coming years then after 2-3 years you may see spill over to Eb3. otherwise it will crawl. But chances are there that they will recapture or do CIR in between.
Great Analysis! What are your predictions for EB3 for this year?
You mean to say that EB3 (40K) is already used up for this year :-(
Thanks,
Rayoflight
All Eb3 will get close to 40k this year . There will not be any spill over from Eb1 or Eb2. Also Eb3 ROW is not current so chances are very minimal that Eb3 india and China will get any exxtra visa. Only CIR or Recapture is hope for Eb3. OR as I said in earliar post that if Labor dept makes too hard to file for Eb2 in coming years then after 2-3 years you may see spill over to Eb3. otherwise it will crawl. But chances are there that they will recapture or do CIR in between.
more...
handsome_man20740
04-22 02:25 AM
Folks,
go to the AILA site. and make this query as shown below. They have also started something similar and the idea as i expressed in my previous post is to contact congress about this problem. They also have a sample letter on this search.
http://www.aila.org/search/default.a...erm=green+card
Murthy.com is also doing something similar but folks we need a lof of people to come forward and kinda pester these senators and law makers, trying to impress the idea of contribution of foreigners.
http://www.murthy.com/news/n_morh1b.html
At least everyone can send an email to the senators.
Thanks
-H
go to the AILA site. and make this query as shown below. They have also started something similar and the idea as i expressed in my previous post is to contact congress about this problem. They also have a sample letter on this search.
http://www.aila.org/search/default.a...erm=green+card
Murthy.com is also doing something similar but folks we need a lof of people to come forward and kinda pester these senators and law makers, trying to impress the idea of contribution of foreigners.
http://www.murthy.com/news/n_morh1b.html
At least everyone can send an email to the senators.
Thanks
-H
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gc_buddy
12-03 12:52 AM
Good news..But, let us not stop our campaign until we hear something concrete from USCIS.
more...
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GC109
06-22 02:54 AM
Labor process through PERM can take anywhere from 3 weeks to more than a year (after filing). Most time consuming part is (if you are just initaing the process with your employer) the pre-filing documentation.
If you have a masters or better, and your current job does not REQUIRE a Masters degree, then you might want to ask HR to change/tweak your job profile. If thats an option and they are willing to do it, might take some time, but in the longer run, you will be better off under EB2 than EB3.
You will need letters from all your previous employers, verifying the job discription
Once that is in hand, your company will have to post your job in a newspaper/internal company website/job board and also in a visible place in your company premises for a month (X + 30 days)
After that 30 day period, you wait for any responses for an addidtional 30 days (X+60 days)
After that, your company/HR/Lawyer would need some time to put everything together before filing (X + 70 days)
Bear in mind this is the best case scenario. I started the process in December mid...filed for Labor in 1st week of June.
On your second point (dates being current), Iam very doubtfull that by the time Iam ready to file for 140/485, the dates will be current.
And ofcourse, if this ain't too daunting, THE CIR might put a wrench in your best laid plans, There is a talk about May 15th being the deadline for this process, untill Oct-08 when the new point system comes into play...good luck
Thanks for your response. You have got your Labor approved but don't you think that u can file I140 and 485 concurrently by end of July? Where do think that ur filing is going to get delayed?
If you have a masters or better, and your current job does not REQUIRE a Masters degree, then you might want to ask HR to change/tweak your job profile. If thats an option and they are willing to do it, might take some time, but in the longer run, you will be better off under EB2 than EB3.
You will need letters from all your previous employers, verifying the job discription
Once that is in hand, your company will have to post your job in a newspaper/internal company website/job board and also in a visible place in your company premises for a month (X + 30 days)
After that 30 day period, you wait for any responses for an addidtional 30 days (X+60 days)
After that, your company/HR/Lawyer would need some time to put everything together before filing (X + 70 days)
Bear in mind this is the best case scenario. I started the process in December mid...filed for Labor in 1st week of June.
On your second point (dates being current), Iam very doubtfull that by the time Iam ready to file for 140/485, the dates will be current.
And ofcourse, if this ain't too daunting, THE CIR might put a wrench in your best laid plans, There is a talk about May 15th being the deadline for this process, untill Oct-08 when the new point system comes into play...good luck
Thanks for your response. You have got your Labor approved but don't you think that u can file I140 and 485 concurrently by end of July? Where do think that ur filing is going to get delayed?
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mlk
10-20 02:12 PM
but you had a chick.
more...
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add78
07-15 03:03 PM
I have used AC21 to change jobs
I have a closing statement from my previous employer mentioning the exercisable options.
Here it goes:
Exercisable Options
Price $30
grant date 1/10/2007
Shares exercisable 400
total price =12000
Last date to exercise
7/20/2008
However the market share value for the company now is 26.00
now my question is if I were to exercise before the last date will I be getting the total amount of $12000 or 26 x 400 = $10400 or the difference between the share values which is infact negative or nothing?
I find it difficult understand this financial terms. I dont understand clearly the term 'Exercisable options' Is there a hidden treasure am going to get?????
$30 per option price seems very high at the time they were offered unless they were trading around or higher than 30 at that time. Usually ESOP (Employee Stock Options) are offered at a lower end of the annual stock price fluctuations - e.g. if a company is already public with stock trading for the year highs at 50 at year low was say 20 at any point during that year then employees get it at 20. something like this. If a company is pre-IPO, the options are offered at a much cheaper price of a 1c to 10c per option.
You should be able to place a call to your HR and they would be able to explain any questions you have. If the value is negative, no point exercising options now.
I have a closing statement from my previous employer mentioning the exercisable options.
Here it goes:
Exercisable Options
Price $30
grant date 1/10/2007
Shares exercisable 400
total price =12000
Last date to exercise
7/20/2008
However the market share value for the company now is 26.00
now my question is if I were to exercise before the last date will I be getting the total amount of $12000 or 26 x 400 = $10400 or the difference between the share values which is infact negative or nothing?
I find it difficult understand this financial terms. I dont understand clearly the term 'Exercisable options' Is there a hidden treasure am going to get?????
$30 per option price seems very high at the time they were offered unless they were trading around or higher than 30 at that time. Usually ESOP (Employee Stock Options) are offered at a lower end of the annual stock price fluctuations - e.g. if a company is already public with stock trading for the year highs at 50 at year low was say 20 at any point during that year then employees get it at 20. something like this. If a company is pre-IPO, the options are offered at a much cheaper price of a 1c to 10c per option.
You should be able to place a call to your HR and they would be able to explain any questions you have. If the value is negative, no point exercising options now.
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setpit_gc
08-15 11:22 PM
Thanks for the replies. I am going to consult with an Attorney.
I wanted to get other valuable opinions.
I wanted to get other valuable opinions.
more...
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msgoud
03-08 03:29 PM
thanks all for suggestions
His company is filing for LCA today and will see where it takes
His company is filing for LCA today and will see where it takes
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eb3retro
03-17 11:07 AM
Just contributed $100.00. Will contribute more in Future...!
thanks to all the people who made this happen and special thanks to the team who went to Washington for our cause.
thanks to all the people who made this happen and special thanks to the team who went to Washington for our cause.
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ken
04-08 02:24 PM
Hello gurus
I filled my 485 in july fiasco at Nebraska service center. Today I recieved an online update on my and my wife case (485) saying that case has been transfered to miami,fl , the reason is because it falls under that jurisdiction.
I am EB3 India, PD Aug 2002.
I already recieved my EAD,AP
Let me know your thoughts or if some one else also recieve the same update.
Thanks in advance..
I filled my 485 in july fiasco at Nebraska service center. Today I recieved an online update on my and my wife case (485) saying that case has been transfered to miami,fl , the reason is because it falls under that jurisdiction.
I am EB3 India, PD Aug 2002.
I already recieved my EAD,AP
Let me know your thoughts or if some one else also recieve the same update.
Thanks in advance..
fatjoe
09-05 12:51 PM
I could not ascertain a patter in which they do the data entry. Information on August filing is entered before the July filings...?
guesswho
04-10 11:59 AM
That sucks :(
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