Proposed Immigration Reforms by Gang of Eight and its Impact on H-1B Category

 

The Border Security, Economic Opportunity and Immigration Modernisation Act (SB 744) was passed by the Senate Judiciary Committee on a vote of 13 to five, and is likely to come to the floor of the Senate to be voted on in June 2013. The House of Representatives has drafted its own bill for immigration reform. However, there are reports of disagreements among lawmakers in the House of Representatives over provisions in the house's bill. Both pieces of proposed legislation represent a concerted effort among lawmakers to reform the immigration laws. The next few months will be pivotal with respect to whether immigration reform legislation is passed in the United States during 2013.

Introduction

The Border Security, Economic Opportunity and Immigration Modernisation Act (SB 744) was introduced into the Senate on April 16 2013 by Senators Schumer, Durbin, Bennet, Menendez, McCain, Rubio, Flake and Graham (referred to as the 'gang of eight'). This comprehensive piece of immigration legislation addresses border security issues and has provisions to reform the H-1B and L-1 non-immigrant visa categories. It creates a path towards citizenship for those who are undocumented, creates a merit-based visa and reallocates the distribution of visas. The bill appears to have a decent amount of support among a large bipartisan group of US senators. As a result, there is a good chance that this bill may pass the Senate and eventually become law. Naturally, the bill is receiving widespread attention among various media outlets, and is being monitored closely by US employers and the public.

Several key provisions of the bill may have an impact on US employers sponsoring foreign nationals for the H-1B and L-1 categories.

H-1B

The new bill proposes the following general changes to the H-1B category:

• It creates a floor of 110,000 and ceiling of 180,000 for the H-1B cap.
• It increases the master's cap from 20,000 to 25,000.
• It creates a new wage level system.
• It prohibits H-1B-dependent employers from using the Level 1 wage rate.
• it requires H-1B employers to advertise for the H-1B position on the Department of Labour website for a 30-day period.

In relation to dependent employers, the bill proposes as follows:

• It will prohibit outplacement, outsourcing or placement of H-1B workers by H-1B dependent employers.(1)
• It will allow outplacement, outsourcing or placement for non-dependent H-1B employers, but impose an additional filing fee of $500.
• Employers (other than educational or research employers) that employ 50 or more workers in the United States are banned from sponsoring H-1B workers if more than 75% of their workforce is in H-1B status (in 2015), changing to 65% in 2016 and 50% in 2017.
• The May 3 2013 amendment to bill defines an 'intending immigrant' for the purposes of calculating H-1B dependency as a H-1B worker who has a pending or approved labour application, rather than requiring a labour application pending for one year or more.

In relation to reporting, the bill requires all H-1B-dependent employers to submit an annual report to the Department of Homeland Security, including W-2s for all H-1B workers employed during the previous fiscal year.

In regard to the Department of Labour and labour condition applications, the bill:

• changes the standard of review of labour condition applications by the Department of Labour from reviewing for completeness to reviewing for completeness and evidence of fraud;
• changes the timeframe for processing labour condition applications from seven to 14 days;
• allows employers to file the Form I-129 with an uncertified labour condition application;
• removes the reasonable cause requirement for conducting a Department of Labour investigation and replaces it with the provision that the departement may initiate an investigation;
• requires the Department of Labour to conduct annual compliance audits of each employer with more than 100 employees, if more than 15% of the employees are in H-1B status, and requires these audits to be available for public inspection;
• increases Labour Condition Application fines from $1,000 to $2,000 for misrepresentation, and from $5,000 to $10,000 for wilful misrepresentation; and
• allows Department of Labour employees to file complaints regarding labour condition applications and eliminates the requirement that the Department of Labour know the tipster complaining of the labour condition application violation.

The new bill proposes to amend filing fees as follows:

• It requires H-1B-dependent employers with 50 or more employees to pay an extra filing fee of $5,000 for each H-1B petition filed each fiscal year, beginning in FY 2015 (October 1 2014 to September 30 2015), if 30% to 50% of the H-1B employer's employees are in H-1B or L-1 status. The amended bill imposes the same filing fee on employers that file L-1 petitions, if 30% to 50% of the L-1 employer's employees are in H-1B or L-1 status, but imposes the fee in FY 2014 (October 1 2013 to September 30 2014), rather than 2015.
• It requires H-1B-dependent employers with 50 or more employees to pay an additional fee of $10,000 for each H-1B petition filed each fiscal year, beginning in FY 2015 (October 1 2014 to September 30 2015), and continuing through the 2017 fiscal year, if 50% to 75% of the H-1B employer's employees are in H-1B or L status. The amended bill imposes the same filing fee on employers who file L-1 petitions, if 50% to 75% of the L-1 employer's employees are in H-1B or L-1 status, but imposes the fee in FY 2014 (October 1 2013 to September 30 2014), rather than 2015.
• It imposes an additional fee of $1,250 for each H-1B or L-1 petition which has at least 25 full-time employees.
• It imposes an additional filing fee of $2,500 per H-1B or L-1 petition for an employer that employs more than 25 employees.

The above additional fees are on top of the other filing fees already imposed on employers filing H-1B and L-1 petitions.

Further, the bill imposes a $500 fee for filing an application for permanent employment certification (Form 9089).

L-1

In relation to L-1 visas, the new bill will:

• prohibit the outplacement or outsourcing of L-1 workers, if not controlled or supervised principally by the sponsoring employer; and
• impose a requirement that if an L-1 worker is placed at a third-party location, the third party attests that the worker has not displaced and will not displace a US worker for 90 days before or after the date of the filing the L-1 petition.

In regard to filing fees, the bill:

• requires L-1 employers with 50 or more employees to pay an additional $5,000 filing fee if 30% to 50% of its workforce is in H-1B or L-1 status;
• requires L-1 employers with 50 or more employees to pay an additional $10,000 if 50% to 75% of its workforce is in H-1B or L-1 status;
• imposes an additional fee of $1,250 for each L-1 petition for employers that employ 25 or fewer full-time employees; and
• Imposes an additional filing fee of $2,500 per L-1 petition for an employer that employs 26 or more employees.

Endnotes

(1) An employer is considered to be an H-1B dependent employer if it has:

• 25 or fewer full-time equivalent employees and at least eight are in H-1B status;
• 26 to 50 full-time equivalent employees and at least 13 H-1B non-immigrant workers; or
• 51 or more full-time equivalent employees, of whom 15% or more are H-1B non-immigrant workers).

[Source – International Law Office – Copyrights]

Submit H-1B Visa Documents and Fees to American Express and Schedule your Embassy/Consulate Interview

 

This post is a part of series of posts that makes up “The Complete Process Trail for H-1B Work Visa”.

Once you have submitted online your Nonimmigrant Visa Application DS-160, you have to submit following documents and fees to:

American Express
Ground Floor, Shaheen Complex
Dr Ziauddin Ahmed Road
PABX 92-21 3263 0260-80
amextravelkarachi@aeg.com.pk
Web: http://www.aegusvisa.com.pk/

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List of Documents to submit:

1. Confirmation page of DS-160
2. Original Passport valid for at least 6 months at the time of submission along with an enlarged (A4 size) copy of the first two pages of current and old passport. Original passport would be returned after due verification
3. Copies of previous passports first 2/4 pages, covering 15 years of travel
4. Travel history form for last 10 years. You will get a paper document from American Express on which you can fill your Travel history.
5. One photograph; having size of 2X2 inches preferably color photograph taken against a white or off-white background, printed without borders on non glossy paper. Computer Scanned photographs are not acceptable and photograph cannot be modified in any way, re-touched, penciled or altered by computer software Photograph should have been taken within last 6 months.
6. I-797, I-29
7. HEC Form – You will get this document from American Express. Fill it, sign it and attach it with the rest of the documents
8. Original SSC (Metric) Certificate
9. Original HSSC (Inter) Certificate
10. Original Bachelor’s/Master’s/PhD’s Degree/Certificate
11. Original SSC (Matric) Marks Sheet
12. Original HSSC (Inter) Marks Sheet
13. Original Bachelor’s/Master’s/PhD’s Transcript
14. Submit H-1B Visa Fee - US$190
1. Do not forget to get the receipt
15. Once you submit all these to American Express
1. Take receipt against submitted visa application
2. Take an interview appointment date. (Interview date will be noted on the Visa Fee Receipt).

The Sponsor will send the H-1B Package Documents to the Candidate

 

This post is a part of series of posts that makes up “The Complete Process Trail for H-1B Work Visa”.

Once your H-1B petition I-129 is approved and your Sponsor received the I-797B Approval Notice from USCIS, your sponsor will courier you, that original I-797B along with a copy of your petition which includes all documents submitted to USCIS for case approval.

The H-1B Package you will receive from your Sponsor via courier include following documents:

1. Original I-797B Approval Notice as show here
2. Copy of your H-1B Petition I-129
3. Copy of all documents which your sponsor submit along with your H-1B Petition I-129 to USCIS
   1. Copy of your Resume / CV
   2. Copy of your Degrees / Transcripts / Certificates
   3. Copy of your Passport
   4. Copy of your Education Evaluation Letter
   5. Copy of your Offer Letter with complete Job Description
   6. Copy of an official letter from Sponsor describing why you are a best fit for the job
   7. Copy of your US Itinerary
   8. Copy of any other supported documents that Sponsor has submitted to USCIS

How courier will deliver your package?

The delivery mechanism for such a package is little different from normal courier deliveries. Once the local city office receives your package, they will call you on your mobile/cell phone and confirm with you if you are expecting a package delivery from USA. Once you confirm them, they will send the rider to your location and the rider will deliver the package and get your signatures at the time of delivery.

H-1B Petition I-129 Processing Time and Trends

 

This post is a part of series of posts that makes up “The Complete Process Trail for H-1B Work Visa”.

Current Trends – As of today i.e. 16th December 2012.

Following chart depicts the current I-129 Processing Time of USCIS National Average and Vermont Service Center. So, based on current trend, if your petition will be filed at Vermont Service Center, a decision might be taken in 2.1 months from the actual date of filing. A decision could be Approval Notice, Rejection or an RFE.

Following chart shows the I-129 Processing Volume Trend of Vermont Service Center.

Following chart shows National Trend for I-129 Processing Volume

Source – USCIS

How to view most current Processing Time, Volumes and Trends?

1. Go to https://egov.uscis.gov/cris/Dashboard.do
2. From the second table at the bottom titled “Processing Times”:
1. Select a form type – select “I-129” and click “Next” button (page will refresh)
2. Select a form sub-type – select “H-1B – Specialty Occupation – Visa to be issued abroad” and click “Next” button (page will refresh)
3. Select an office – select any office you wish to view and click “Next” button (page will refresh)
4. Current Processing Time will be shown in the form of chart (similar to the chart shown above – the very first image above)
3. On the same page and just beneath the second table, there is a link “View national volumes and trends for all applications”. Click on that link and it will take you to a new page titles “National Processing Volumes and Trends”. From that page:
1. Select a form type – select “I-129”
2. Select an office – select any office you wish to see
3. Select chart type – select any chart you wish to see
4. Click on the button “Get Results”. Page will refresh and you will see two charts similar to the one shown above – last 2 images)

Responding Request for Evidence (RFE)

 

Your sponsor is the one who will receive the RFE from USCIS, prepare the RFE Response and finally submit it for review to USCIS. In case, your Sponsor need any additional document or clarification, they will contact you. So, all you have to do is to make yourself easily accessible during that time either through email, phone, fax or mail.

The USCIS will require a response from the Sponsor within 30 to 90 days depending upon the case. Once your Sponsor submit the response to USCIS, your status will change from “Request for Evidence” to “Request for Evidence Response Review” and if you have subscribed for status change notifications via email (as shown in my earlier post), you will also receive an email similar to the one below from USCIS:

*** DO NOT RESPOND TO THIS E-MAIL ***

The last processing action taken on your case

Receipt Number: EAC11209xxxxx
Application Type: I129 , PETITION FOR A NONIMMIGRANT WORKER
Your Case Status: Request for Evidence Response Review

On February 13, 2012, we received your response to our request for evidence. This case is being processed at our VERMONT SERVICE CENTER location. If you move while this case is pending, please use our Change of Address online tool to update your case with your new address or call our customer service center at 1-800-375-5283. We will notify you by mail when we make a decision or if we need something from you. You should expect to receive a written decision or written update within 60 days of the date we received your response unless fingerprint processing or an interview are standard parts of case processing and have not yet been completed, in which case you can use the processing time information on our website to estimate when this case will be done. If you move while this case is pending, please use our Change of Address online tool to update your case with your new address or call our customer service center at 1-800-375-5283.

Once a timely response to the request for evidence is received by USCIS, we review the evidence or information you submitted. If you submitted the requested evidence, we continue with the adjudication of your application or petition in light of the new evidence.

If you have questions or concerns about your application or the case status results
listed above, or if you have not received a decision from USCIS within the current
processing time listed*, please contact USCIS Customer Service at (800) 375-5283.

*Current processing times can be found on the USCIS website at www.uscis.gov under Check Processing Times.

*** Please do not respond to this e-mail message.

Sincerely,

The U.S. Citizenship and Immigration Services (USCIS)

What is H-1B Petition I-129’s Approval Notice I-797B and How it Looks Like?

 

Please click here to read about variants of I-797 including I-797B.

The USCIS Approval Notice I-797B, is really a receipt that USCIS has received your application and contains information like:

• The applicant's (Petitioner) individual information.
• The Beneficiary's information (if any).
• Name with the petition.
• Receipt Number, using this number you can verify the status of your application.
• Receipt Date, the date your application was received by USCIS.
• Priority Date, is your location inside the waiting list queue. This date depends upon the preference group you come under as well as the nation of birth. If your priority date may be the current date, it means that a visa is immediately offered.
• Notice Date.
• Type of notice, whether or not it is USCIS Approval or receipt.
• Class, what category you belong.
• Validity of one's petition. This states how lengthy your petition is legitimate. The consular authorities have the right to extend your validity interval.

USCIS will send Approval Notice I-797B to Sponsor

 

This post is a part of series of posts that makes up “The Complete Process Trail for H-1B Work Visa”.

Once H-1B petition I-129 was approved by USCIS, an Approval Notice I-797B will be sent to the employer. Notice that I-797 has different variants, however only the ones that are highlighted below are relevant in our case.

USCIS uses numerous types of Form I-797 to communicate with customers or convey an immigration benefit. Form I-797 is NOT a form you can fill out. The chart below gives a brief description of each:

I-797, Notice of Action - Issued when an application or petition is approved.

I-797A, Notice of Action - Issued to an applicant as a replacement Form I-94.

I-797B, Notice of Action - Issued for approval of an alien worker petition.

I-797C, Notice of Action - Issued to communicate receipt of payments, rejection of applications, transfer of files, fingerprint biometric, interview and re-scheduled appointments, and re-open cases.

I-797D - Accompanies benefit cards.

I-797E, Notice of Action - Issued to request evidence.

I-797F, Transportation Letter - Issued overseas to allow applicants to travel.

Source: USCIS

How to check your H-1B Case Status?

 

In order to check your H-1B Case Status, please go to USCIS website http://www.uscis.gov

On the top left side of the page, you can see “Case Status” box as highlighted with red color above. Enter you H-1B Petition I-129 Receipt Number, with out any dashes “-“, as mentioned above. Click on “Check Status” button. You will redirected to the result page which shows all statuses (as circles) in chronological order, where one of them will be highlighted showing your case’s current status.

You can also sign up via email using the third option “Sign-up for Case Updates” on the top left hand side menu box above. If there’s any change in the status of your case, you will be emailed about the change.

13 Digit Alpha-Numeric, H-1B Petition I-129 Receipt / Case / Reference Number

 

Format: {FIRST PART}-{SECOND PART}-{THIRD PART}-{FOURTH PART}

Example: EAC-12-209-52348

• FIRST PART
  • Indicates the USCIS Service Center where H-1B petition was filed
    • EAC – Vermont Service Center (old name: Eastern Adjudication Center).
    • LIN – Nebraska Service Center (LIN refers to Lincoln, Nebraska).
    • SRC – Texas Service Center (old name: Southern Regional Center).
    • WAC – California Service Center (old name: Western Adjudication Center).
• SECOND PART
  • Last two digits of the Year in which H-1B petition was filed.
• THIRD PART
  • Working Day (i.e. excluding weekend & holidays) starting from October 1st of the year of filing
• FOURTH PART
  • Indicates the Case Number that was assigned to your H-1B petition.

H-1B Petition I-129 filing by Sponsor

 

This post is a part of series of posts that makes up “The Complete Process Trail for H-1B Work Visa”.

Based on the documents that you have sent to the Sponsor and the accepted Offer Letter, Sponsor will prepare the H-1B Petition I-129 and submit it to any one of the following Service Centers of U.S. Citizen and Immigration Services (USCIS) based on the applicable jurisdiction.

• California Service Center
• Nebraska Service Center
• Texas Service Center
• Vermont Service Center

Source: USCIS

Your sponsor can submit your H-1B Petition I-129 in either of the following processing modes:

1. Regular Processing
   • Processing Time – up till 6 months
   • Base filing fee – US$ 325
     • American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee
       • US$ 750 for employers with 1 to 25 full-time equivalent employees, unless exempt
       • US$ 1,500 for employers with 26 or more full-time equivalent employees, unless exempt
     • Fraud Prevention and Detection fee
       • US$ 500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers (does not apply to Chile/Singapore H-1B1 petitions)
     • Public Law 111-230
       • US$ 2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.
       • must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers
   • Turn around time – Within 6 months
2. Premium Processing
   • Processing Time – Within 2 weeks
   • All fees mentioned in “Regular Processing” above
   • Additional fee of US$ 1,225 for employers seeking Premium Processing Service

Source: USCIS

So does Premium Processing has Higher chances of Approval? the answer is No. Its just a way to expedite the processing of your application. Premium processing will not increase your chances of approval. And, if you are applying for H-1B for the first time, there’s no need to go for Premium Processing, because even if you know early, that your H-1B Petition I-129 has been approved, you can not enter USA before 1st of October the same year.

Then why should one go for Premium Processing? there are cases when opting for Premium Processing is beneficial:

1. H-1B Transfers – because candidate can work right away and do not have to wait for 1st October. Moreover, candidate want to switch early instead of being stuck with existing sponsor for long
2. H-1B Addendum – because candidate can work right away and do not have to wait for 1st of October
3. etc.

Once the H-1B Petition I-129 is submitted by the Sponsor, the USCIS Service Center will send a Receipt Notice bearing a 13 digit alphanumeric reference number.This is the petitioner’s (sponsor’s) first confirmation that the petition is in the adjudicating queue.

You will now have to wait for the approval of your petition by USCIS. During that period you can check about your case status from time to time on USCIS website.

H-1B Work Visa Sponsor to file Labor Condition Application (LCA) with Department of Labor (DOL)

 

This post is a part of series of posts that makes up “The Complete Process Trail for H-1B Work Visa”.

Prospective specialty occupation and distinguished fashion model employers must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:

• The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
• The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.

Source: USCIS

A single Labor Condition Application for H1B may be filed for multiple positions. Each LCA is limited to one occupation with specified job duties.

The LCA must be certified by the DOL and submitted with the Form I-129 before the H1B petition may be approved by USCIS.

Labor condition applications are filed online using the iCERT system

An application which is complete and has no obvious inaccuracies will be certified by the Department and returned to the employer, who may then file it in support of its petition for an H1B visa nonimmigrant with the United States Citizenship and Immigration Service USCIS (USCIS).

Current LCA processing time is 7 days.

H-1B Work Visa–Complete Process Trail

 

Below, I’ve summarized complete H-1B Work Visa Process Trail. Later on, I’ll pick each one of them and will walk you through every step in detail, to help you understand the process completely:

1. Find an H-1B Sponsor and Pass their selection criteria
2. Receive and Accept the Offer Letter from the Sponsor
3. Send related documents to the Sponsor
4. The Sponsor will file Labor Condition Application (LCA) with Department of Labor (DOL)
5. Once LCA is certified, the Sponsor will file H-1B Petition I-129 with U.S. Citizenship and Immigration Services (USCIS) and USCIS will send the I-797 Receipt Notice to the Sponsor.
   • How to check your H-1B Case Status?
   • What is Request for Evidence (RFE)?
   • Responding Request for Evidence (RFE)
   • Why Request for Evidence (RFE)? Recent Trends
   • Request for Evidence (RFE) Processing Time
6. Once approved USCIS will send an Approval Notice I-797B
   • What is H-1B Approval Notice I-797B and How it looks like?
   • H-1B Petition I-129 Processing Time and Trends
7. The Sponsor will send the I-797 along with other documents to you
8. Submit H-1B Visa Application DS-160 online on USCIS website.
9. Submit DS-160, documents and Fee to American Express and get your interview scheduled in the U.S. Embassy or Consulate
10. Appear for the Visa Interview at US Embassy/Consulate 
    1. Possible Interview Questions That May Be Asked By Visa Officer During H-1B Visa Interview @ US Consulate or Embassy
    2. On the Interview Day - US Embassy/Consulate’s Interview Process for H-1B Visa Applicants
    3. 221(g) Administrative Processing and the Actual Visa Stamping
    4. Check your Visa Application Status Online
    5. Check Current Visa Application Processing or Wait Time
    6. Delay in Visa Stamping – Send Inquiry to US Embassy or Consulate
11. Once approved, you are eligible to fly to USA