Part I – Overview of the H1B Nonimmigrant Work Visa Part II

Part I – Overview of the H1B Nonimmigrant Work Visa
Part II – Helpful Practice Pointers/Reminders
Part III – Updates to Form I-129 & Public Law 114-113
Part IV – FY2017 H1B CAP SEASON
Kellie Lego, Esq.
MVP Law Group, P.A.
10632 Little Patuxent Pkwy, Suite 406
Columbia, MD 21044
[email protected]
240-390-0600

H-1B visas are for temporary (nonimmigrant) workers
engaged in a specialty occupation that requires:



(1) theoretical and practical application of highly
specialized knowledge and
(2) attainment of a bachelor's or higher degree, or
equivalent experience, in the specific specialty for
entry into the occupation.
INA Section 214(i)(1)
defines the term "specialty occupation" to mean "an occupation that requires (A)
theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor (or its
equivalent) or higher degree in the specific specialty as a minimum for entry into the occupation in the United States. Title 8,
C.F.R.Section 214(h)(4) further defines "specialty occupation" to mean "an occupation which requires theoretical and
practical application of a body of highly specialized knowledge in the fields of human endeavor including, but
not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health,
education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a
bachelor’s degree or higher in a specific specialty or its equivalent, as a minimum for entry into the occupation in the United
States.“

Determining Whether or Not a Specialty Occupation? Must meet
ONE of the following 4 criteria:
1. A baccalaureate or higher degree or its equivalent is normal
minimum requirement for entry into the position (See O*Net at
http://online.onetcenter.org/; See OOH at http://www.bls.gov/ooh/),
2. Degree requirement is common in industry or the particular
position is so complex or unique that a degree is required;
3. Employer normally requires a baccalaureate or higher degree or
its equivalent for entry into the position; or,
4. Duties of the position are so complex and specialized so as to be
associated with attainment of bachelor’s or higher degree.
O*NET Online – Computer Programmer Position
OOH – Computer Programmer Position

Examples of Specialty Occupations
 Engineer
 Computer Scientist
 Physician
 Professor
 Accountant
 Teacher

The foreign national must have at least a
U.S. bachelor’s degree in the related
field or:
1)
2)
3)
Foreign academic equivalent;
Equivalent work experience (3/1 rule); or
Combination of both
 A professional credential evaluation is needed to determine education and/or experience
equivalency questions.
 If the degree was obtained in the United States, please check the US Department of
Education Database of Accredited Postsecondary Institutions and Programs to ensure
that the school is in fact accredited  http://ope.ed.gov/accreditation/
U.S. Schools – Accreditation Details
Part I – Overview of the H1B Nonimmigrant Work Visa
Has anyone received an RFE that questions the beneficiary’s credentials –
assumes the applicant does not have the foreign degree equivalent and is basing
eligibility on a combination of education, experience and training - requesting
more than just a credential evaluation?
D) Equivalence to completion of a college degree. For purposes of paragraph (h)(4)(iii)(C)( 4 ) of this section, equivalence to completion
of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in
the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher
degree in the specialty and shall be determined by one or more of the following:
( 1 ) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the
specialty at an accredited college or university which has a program for granting such credit based on an individual's
training and/or work experience;
( 2 ) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level
Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);
( 3 ) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating
foreign educational credentials;
 Wage Requirements
The employer must pay at least the prevailing wage or the actual
wage, whichever is higher for the proffered position.
 The actual wage is the wage paid by the employer to US workers,
in the same position, at the same work site, with similar experience
and qualifications.
 The prevailing wage is determined based on minimum
requirements for the position and the area of intended
employment.
The Department of Labor’s website provides four wage levels at
http://www.flcdatacenter.com/OesWizardStart.aspx.
A private survey may be obtained.
Department of Labor (DOL) - OFLC Online Data Center

A Certified Labor Condition Application
(“LCA”) is required of all H-1B petitions. 20
C.F.R. § 655.700-655.855.
 LCA is associated with four employer attestations:
(1) The Employer will pay the H-1B worker wages that are the higher of (a) the actual wage
and (b) the prevailing wage for the occupational classification in the area.
The higher
figure is the required wage.
(2)The Employer will provide working conditions for the H-1B worker that
will not
adversely effect the working conditions of U.S. workers similarly employed in the area.
Working conditions = hours, shifts, vacation periods, benefits.
(3) There is no strike or labor dispute at the place of employment. As of the date the LCA is
filed, the Employer is not involved in a strike, lockout or other work stoppage occurring in
the course of a labor dispute
(4) Notice of the LCA filing must be provided to the bargaining representative or affected
workers and the H-1B worker ,and the end client, if applicable. Must be posted in 2
conspicuous locations at the place of employment regardless of whether the worksite is
owned/operated by the Employer for 10 days.
Note: DOL’s Wage and Hour Division is responsible for enforcement of attestations.
Notice of Filing a LCA, must contain the following information:
(1) Number of H-1B workers the employer is seeking to employ in the relevant
position;
(2) Occupational classification in which the H-1B worker(s) will be
employed;
(3) Wage(s) offered to H-1B worker(s). A range is okay so long as bottom of range is no
lower than the required wage.
(4) Period of intended employment of H-1B worker(s);
(5) ALL Locations where H-1B worker(s) will be employed;
(6) Following statement: “Complaints alleging misrepresentation of material facts in
the labor condition application and/or failure to comply with the terms of the labor
condition application may be filed with any office of the Wage and Hour division of
the United States Department of Labor.”

PUBLIC ACCESS FILE REQUIREMENTS
•
A copy of each certified labor condition application (Form ETA 9035 or Form ETA 9035E) including all pages and
cover sheet;
•
Documentation which provides the wage rate to be paid to the non-immigrant and any benefits (ex. Employment
offer/agreement);
•
A clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay
workers in the occupation sought (ex. Statement/evidence of employer’s pay-system or scale)
•
Documentation which the employer used to establish the “prevailing wage” for the occupation sought (ex. Printout
from http://www.flcdatacenter.com)
•
A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
•
A statement confirming that a copy of the approved LCA was provided to the H-1B worker;
•
If employer is H-1B dependent and/or a willful violator, and indicates on the LCA that only “exempt” H-1B nonimmigrants will be employed, a list of such “exempt” H-1B non-immigrants should be within the file;
•
If employer is H-1B dependent and/or a willful violator, and indicates such on the LCA, a summary of the
recruitment methods used and the time frames of recruitment of U.S. workers, or copies of documents establishing
this information should be within the file

Required USCIS Forms
• Form G-28, Notice of Entry of Appearance as Attorney or
Accredited Representative (4 pages, requires employer signature on Page
3, #3a and #3b) Barcoded G-28 required
• Form I-129, Petition for a Nonimmigrant Worker (8 pages, requires
employer signature in 1 place)
• Form I-129 H1B Data Collection Supplement (~129DC), H-1B Data
Collection and Filing Fee Exemption Supplement (3 pages, no signature
required)
• Form I-129 Supplement H (~129H), H Classification Supplement to
Form I-129 (2 pages, requires employer signature in 2 places)
• Form I-907, Request for Premium Processing Service (6 pages,
requires employer signature)

USCIS Filing Fees
• Form I-129 carries a filing fee of $325.00
• Anti-Fraud Fee of $500.00 applies to H1B CAP and transfer cases, does not
apply to H1B extensions
• Form I-129DC (ACWIA) carries a filing fee of $750.00 (25 or fewer full time
employees) or $1500.00 (26+ employees)
Note: A qualifying institution of higher education; a qualifying nonprofit organization or entity; and a qualifying
nonprofit research organization or governmental research organization are exempt from paying the filing fee.
Amended petitions are exempt. Applicants filing their second or subsequent request for an extension with same
employer are also exempt.
• Form I-907 carries a filing fee of $1225.00 (OPTIONAL – Premium
Processing)
• Public Law 114-113 carries a filing fee of $4000.00 if the Petitioner employs
50 or more individuals in the U.S. and more than 50% of those employees
are in H1B , and $4,500.00 for those in L1 nonimmigrant status.

H-1B Petition: Contents
1.
2.
3.
4.
5.
6.
7.
8.
9.
Cover Letter listing contents of H1B package;
Signed I-907 form, if applicable;
Signed G-28 form;
Signed Employer Letter of Support;
Signed Forms I-129, I-129DC, I-129H;
Certified, signed Labor Condition Application;
Signed Detailed Itinerary of Services, if applicable;
End Client Letter/Vendor Documents, if applicable;
Copies of H-1B worker’s education documents – degrees, transcripts,
credential evaluation, awards, certifications, resume;
10. Copies of H-1B worker’s supporting documentation – passport, I-94
printout, visa stamp, paystubs, W-2 forms, evidence of company
benefits;
11. Copy of Employment Agreement with Employer.
12. USCIS Filing fees, stapled to Cover Letter
 Extension of Stay v. Change of Status
 An H1B worker in H1B status who has not violated his/her status is eligible to
extend his/her status if additional H1B time is remaining
 A change of status is applicable when an intended H1B worker is in a status
other than H1B that permits that individual to change status to H1B without
departing the US to obtain the H1B visa
 H1B and Consular Processing
 If the beneficiary is otherwise not able to extend or change status in the US, the
USCIS will notify the designated US Consulate as listed on the I-129 form of the
approval of the Petition.
 The I-797 will NOT have an I-94 attached. The H1B candidate must consular process to
obtain H1B visa stamping to enter the US and begin authorized employment
 Regardless of the type of H1B Petition, always complete Part 4 of Form I-129
 H1B Visa Validity & Passports
 If the passport containing a valid visa expires, the expiration of the passport has
NO effect on the validity of the visa.
 The passport should be valid for at least 6 months from the expiration date of the
initial period of admission

Roving Employees
 End
Clients & Maintaining Employer-Employee
Relationship
 Obtain an end client letter (best evidence), if not possible –
obtain vendor letter; vendor agreement; end client
agreement; end client work badge displaying beneficiary’s
name/picture; beneficiary’s timesheets as submitted to
Petitioner; beneficiary's weekly status reports as submitted
to Petitioner; beneficiary’s performance
evaluations/reviews as conducted by Petitioner;
Petitioner’s organizational chart …
 End Client letters should specifically include the
beneficiary’s name, specialty occupation duties
undertaken during placement, expected duration of
temporary placement at end client, and state that end
client is not the Employer of H1B beneficiary
Part II – Helpful Practice Pointers/Reminders
H1B Amended Petitions - Simeio Solutions Decision
When a petitioner must file an amended or new petition based on Simeio :
•
•
Except as provided in the Simeio compliance section, a petitioner must file an amended or new H-1B
petition if the H-1B employee is changing his or her place of employment to a geographical area
requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the
U.S. Department of Labor and posted at the new work location.
Note: Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can
immediately begin to work at the new place of employment, provided the requirements of section
214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on
the amended or new petition for the H-1B employee to start work at the new place of employment.
When a petitioner does NOT need to file an amended petition :
•
•
•
A move within an “area of intended employment”: If a petitioner’s H-1B employee is simply
moving to a new job location within the same area of intended employment, a new LCA is not
generally required. See INA section 212(n)(4); 20 CFR 655.734.
Therefore, provided there are no changes in the terms and conditions of employment that may affect
eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B
petition.
However, the petitioner must still post the original LCA in the new work location within the same
area of intended employment.

Duplicate Copies of Petitions/RFE Responses
Send 2 complete copies of the Petition (forms + supporting docs) to
USCIS
 Mark 1 copy with the following – KCC Copy

 Once the petition is approved, USCIS will forward the KCC copy to the KCC.
KCC will scan the petition and enter it into PIMS database – otherwise there may
be a delay at Visa Stamping Interview due to Consulate missing a copy of the
petition in their database

H1B Extensions Beyond 6th Year
Section 106(a) of AC21: 1 year extensions – if a PERM application or
an I-140 petition was filed at least 365 days before the H1B worker
reaches his/her 6th year in H1B status
 Section 104(c) of AC21: 3 year extensions – if the beneficiary of an
approved I-140 Immigrant Petition for Alien Worker but due to per
country limitations, a visa number is unavailable

 H1B Transfers Under AC21
 H1B Change of Employer Petitions
 The Employee can begin employment with the new H1B Petitioner upon the
filing of the H1B petition with the USCIS*

Payment of Attorney’s Fees/USCIS Filing Fees


The regulations state that the attorney fees and other costs
connected to the performance of H-1B program functions, which
are required to be performed by the employer, e.g., preparation
and filing of LCA and H-1B petition, are to be considered “business
expenses” of the employer, and are not to be deducted from the
H-1B employee’s pay. This includes filing the I-129; I-129 DC
and any legal fees connected with the H-1B Case.
All other expenses, such as Premium Processing, associated with
the H-1B program may be borne by the worker. Obtaining H-4
visas for dependent family members are not the employer’s
business expense. The DOL acknowledges that it has "no right or
any interest in inquiring into those.”
 Withdrawing H1B Cases
 Once the H1B Employee is no longer an employee of the Petitioner, a Request to
Withdrawal Letter needs to be filed with the USCIS immediately
 If the LCA is still valid upon the employee leaving the company, it should also be
withdrawn.
Part III – Updates to Form I-129
• Only one
signature
required by
Employer on
Page 6
• Attorney
Attestation
Changed on Page
7
• No Signature
required from
Petitioner on
Page 8
*PUBLIC LAW 114-113: USCIS is in the process of revising Form I-129,
Petition for a Nonimmigrant Worker to reflect the provisions of Public
Law 114-113. Petitioners should continue to complete Item Numbers
1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and
Filing Fee Exemption Supplement (Page 19 of Form I-129)
 The Consolidated Appropriations Act, 2016 (Public Law 114-113), signed into
law by President Obama on December 18, 2015, increases fees for certain H1B and L-1 petitioners. These petitioners must submit an additional fee of
$4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B
petitions postmarked on or after December 18, 2015.
 The additional fees apply to petitioners who employ 50 or more employees
in the United States, with more than 50 percent of those employees in H-1B
or L (including L-1A and L-1B) nonimmigrant status. These petitioners must
submit the additional fees with an H-1B or L-1 petition filed:
- Initially to grant status to a nonimmigrant described in
subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration
and Nationality Act; or
- To obtain authorization for a nonimmigrant in such status to change
employers.
This fee is in addition to the base processing fee, Fraud Prevention and
Detection Fee, American Competitiveness and Workforce Improvement Act of
1998 fee (when required), as well as the premium processing fee, if applicable.
Public Law 114-113 fees will remain effective through September 30, 2025.
H-1B Annual CAP per Fiscal Year (FY2017)

•
The current annual cap on the H-1B category is 65,000. Please note that up to 6,800 visas are set aside for
the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for
H-1B use for the next fiscal year.
•
Under the advanced degree exemption the first 20,000 petitions filed for a beneficiary who has
obtained a U.S. master's degree or higher are exempt from the CAP.
•
Employers may begin to submit H-1B CAP cases as of April 1, 2016 for employment beginning
October 1, 2016, the start of the Fiscal Year. Fiscal year runs from October 1st through September 30th.
•
Petitions received by the USCIS during the first week of April are subjected to a computerized
random lottery process.
Fiscal Year
Date CAP Reached
FY2016
FY2015
FY2014
April 7, 2015
April 7, 2014
April 5, 2013
FY2013
June 11, 2012
FY2012
November 23, 2011
FY2011
January 26, 2011
FY2010
December 2009

LCA Filings
 Cannot
file more than 6 months in advance of the
start date, earliest start date is October 1, 2016
 When
filing the LCA, you will not be able to
submit an LCA before April 1, 2016 with a
starting date of 10/01/2016, accordingly…you do
the following:
Start date – 08/19/2016
End date – 08/18/2019
Form I-129 would be marked – 10/01/2016 through
08/18/2019

H1B CAP GAP
Current regulations allow certain students with pending or approved H-1B
petitions to remain in F-1 status during the cap-gap period. This is referred to as filling
the "cap-gap." The regulations provide a way of filling the "gap" between the end of F1 status and the beginning of H-1B status.
 H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to
H-1B on October 1 qualify for a cap-gap extension.
 Timely filed = H-1B petition (indicating COS rather than CP) was filed on or after April 1 while the
student's authorized F-1 duration of status (D/S) admission was still in effect.
 Once a timely filing has been made, the automatic cap-gap extension will begin and continue until the
H-1B petition adjudication process has been completed.
If the student’s H-1B petition is
selected/approved, the student’s extension will continue through September 30. If denied, withdrawn,
revoked, or is not selected, the student will have the standard 60-day grace period from the date of the
rejection notice or their program end date, whichever is later, to prepare for and depart the US.
 Travel is not advisable during the CAP GAP period
Please note: F-1 students who have entered the 60-day grace period are not employment-authorized. If an H-1B cap-subject petition is
filed on behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her
F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was
filed, there is no employment authorization to be extended).
**STEM EXTENSION UPDATES

Petitions EXEMPT from the H1B CAP
 Certain
Employers and Petitions are not subject
to the CAP
 If not subject to the CAP, then the H1B can be filed and the
employment may begin at any time during the year.
 Any Alien counted against the Cap within the Past 6 Years
 Institutions of Higher Education
 Nonprofit Entities affiliated with institutions of higher education
 Nonprofit or governmental research organizations
 A Foreign National changing Employers (H1B Transfer), as long as s/he was
not working at a CAP EXEMPT institution previously
 Extensions of H1B Status
The beneficiary
will work
temporarily in:
AK, AZ, CA, CO,
GU, HI, ID, IL, IN,
IA, KS, MI, MN,
MO, MP, MT, NE,
NV, ND, OH, OR,
SD, UT, WA, WI,
or WY
The beneficiary
will work
temporarily in:
AL, AR, CT, DE,
DC, FL, GA, KY,
LA, ME, MD, MA,
MS, NH, NJ, NM,
NY, NC, OK, PA,
PR, RI, SC, TN, TX,
VT, VA, VI, or WV
For Regular Processing
H-1B Cap Cases:
For Premium Processing
Regular Mailing Address:
USCIS
California Service Center
ATTN: H-1B Cap
P.O. Box 10129
Laguna Niguel, CA 92607-1012
Premium Processing Service
USCIS
California Service Center
P.O. Box 10825
Laguna Niguel, CA 92607
U.S. Masters Cap Cases:
Form I-907/I-129 Courier Mail Address:
USCIS
California Service Center
ATTN: H-1B U.S. Masters Cap
P.O. Box 10129
Laguna Niguel, CA 92607-1012
Premium Processing Service
California Service Center
24000 Avila Road
2nd Floor, Room 2312
Laguna Niguel, CA 92677
H-1B Cap Cases:
H-1B Cap Cases:
USCIS
Vermont Service Center
ATTN: H-1B Cap
4 Lemnah Drive
St. Albans. VT 05479-0001
Premium Processing Service
USCIS
Vermont Service Center
ATTN: H-1B Cap
30 Houghton Street
St. Albans. VT 05478-2399
H-1B U.S. Masters Cap Cases:
H-1B U.S. Master Cap Cases:
USCIS
Vermont Service Center
ATTN: H-1B U.S. Masters Cap
4 Lemnah Drive
St. Albans. VT 05479-0001
Premium Processing Service
USCIS
Vermont Service Center
ATTN: U.S. Masters Cap
30 Houghton Street
St. Albans. VT 05478-2399