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H-1B Employees are subjected to Federal Insurance Contributions Act (FICA) tax withholding

Employees in F-1, J-1, M-1, Q-1 or Q-2 non-immigrant status are exempt from FICA therefore no withholding has to be made. However once these nonimmigrant change their visa status to H-1B, generally beginning from Oct 1st, then they are no longer exempt from FICA. So the employer should review payroll procedures and update tax withholding exemptions for these H-1B employees. U.S. employers must start withholding FICA taxes on the effective date of the change of status to H-1B whether it be October 1st or later whenever change of status to H-1B gets approved.


If you want to learn more about this and legal topics do contact us at (+1) 888 820 4430 (toll free) or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

DHS Proposes a small Registration Fee for Petitioners Seeking to File H-1B Cap-Subject Petitions

September 3, 2019, Adhikari Law, Washington, DC. The Department of Homeland Security (DHS) today announcednotice of proposed rule making that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS.

Because USCIS must expend resources to implement and maintain the H-1B registration system, and because USCIS operations are funded by fees collected for adjudication and naturalization services, DHS is proposing an appropriate, nominal fee for submitting H-1B registrations to recover those costs.

On Jan. 31, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period, unless we suspend that requirement. We also stated in that final rule that we were suspending the registration requirement for the fiscal year (FY) 2020 cap season, to complete required user testing of the new H-1B registration system and otherwise ensure the system and process work correctly.

In that final rule, DHS also reordered the cap selection process to increase the chance of selecting petitioners with a master’s degree or higher from a U.S. institution of higher education. Preliminary data shows that the number of petitions for U.S. advanced degree holders selected toward the FY 2020 numerical allocations increased by more than 11% over the year before.

H-1B visas allow skilled workers in certain specialty occupations to temporarily live and work in the United States.

Additional information on the proposed rule is available in the Federal Register. Public comments will be accepted from Sept. 4 (when the proposed rule publishes in the Federal Register) through Oct. 4. 

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If you want to learn more about Cap Subject H-1B or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com

USCIS has completed data entry for all fiscal year 2019 H-1B cap-subject petitions

Washington, D.C. USCIS has completed data entry for all fiscal year 2019 H-1B cap-subject petitions selected in our computer-generated random selection process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.

Additionally, USCIS may transfer some Form I-129 H-1B cap subject petitions between the Vermont Service Center and the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about H-1B, other immigration topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 529 6946, or email us at info@adhikarilaw.com

Cap Gap Extension for F-1 student for whom H-1B was timely filed with start date of Oct. 1

There is a limit, or “cap,” on the number of individuals who can receive H-1B status every fiscal year. For purposes of the cap, each fiscal year begins on Oct. 1 of the prior calendar year. Regulations prohibit employers from filing H-1B petitions until six months before the date of actual need for the employee. This means that once USCIS reaches the cap in one fiscal year, employers must wait until April 1, which is six months before the start of the next fiscal year, before filing H-1B petitions again.

A. International Students and H-1B Status

Each year, some F-1 students seek to switch nonimmigrant classification from F-1 student status to H-1B temporary employment status after completing a program of study or post-completion optional practical training (OPT). An F-1 student’s current or prospective employer may petition USCIS for H-1B status on their behalf. If you are an M-1 student, your prospective employer may petition H-1B status on your behalf if your employment does not relate to your M-1 program of study.

B. F-1 Status Gap

Many F-1 students complete a program of study or post-completion OPT in mid-spring or early summer. Per federal regulations, after completing their program or post-completion OPT, F-1 students have only 60 days to take the steps necessary to maintain legal status or depart the United States. However, because the change to H-1B status does not occur until Oct. 1, an F-1 student previously had two or more months following the 60-day period with no legal status. Prior to 2008, in these instances, an F-1 student would have to leave the United States or apply for H-1B status at a U.S. consulate or embassy, and then seek readmission to the United States.

C. Cap Gap Extension

To deal with this situation, the U.S. Department of Homeland Security established regulations that automatically extend F-1 status and, if applicable, post-completion OPT employment authorization from April 1 to Sept. 30 for eligible F-1 students. This is called “cap gap extension”.

The cap refers to the limit on the number of individuals who can receive H-1B status every fiscal year. The gap is the period between the end of an individual’s F-1 status and the beginning of the individual’s H-1B status. The cap gap extension allows for some F-1 students to extend their F-1 status and/or authorized period of post-completion OPT until they transition to the H-1B status on Oct.

Cap Gap Extension Eligibility

This means an F-1 student filing for H1-B status on April 1 or later with a benefit start date of Oct. 1 may qualify for an extension of status and/or employment authorization. The general eligibility requirements for the cap gap extension are listed below, but please understand that your individual case may be different and you should always talk with an immigration attorney or your designated school official (DSO) about whether you would qualify for a cap gap extension. Additionally, always maintain regular contact with your potential employer to receive updates on the status of your H-1B petition, should they file one for you.

As an F-1 student, you may be eligible for an extension of your F-1 status through Sept. 30 if you meet the following requirements:

  • Your potential employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

You may be eligible for an extension of your F-1 status and authorized period of post-completion OPT (including STEM OPT) in the following circumstances:

  • Your employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • You are in an authorized period of post-completion OPT (including the STEM OPT extension) on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

If you are eligible for the cap gap extension, your proof that you are still in F-1 status and that you may continue OPT (if applicable) is a note on your Form I-20, “Certificate of Eligibility of Nonimmigrant Student Status.” Obtain an updated Form I-20 from your DSO when the Cap Gap extension begins with a note indicating that your F-1 status and, if applicable, your OPT authorization will continue, typically until Sept. 30.

If your H-1B petition is denied, withdrawn, revoked or not selected, an F-1 student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to depart the United States.

Traveling on the Cap Gap Extension

Under certain circumstances, an F-1 student on the cap gap extension may travel abroad and seek readmission to the United States. However, if an F-1 student travels abroad before USCIS approves their H-1B change of status (COS) petition, USCIS will deem the petition abandoned. The student’s F-1 status will expire per the program end date listed on their Form I-20. Meaning, if a student leaves the United States before USCIS approves their H-1B COS petition, that student will not be able to re-enter the United States as an F-1 student pursuant to the cap gap extension provisions.

Specifically, you may travel abroad and seek readmission into the United States if you are an F-1 student on the cap gap extension and meet the following criteria:

  • Your H-1B petition and request for change of status has been approved by USCIS.
  • You seek readmission before your H-1B employment begins (normally such employment begins at the start of the fiscal year, i.e., Oct. 1).
  • You are otherwise admissible (e.g., you have all proper documentation including a valid, signed Form I-20 and an F-1 visa).

You will not need to provide an Employment Authorization Document (EAD). This requirement does not apply because during the cap gap period your EAD card will have already expired, and USCIS will not renew the EAD card during the interim period.

As with all other international arrivals at a U.S. port of entry, the final decision on whether to grant admission into the United States lies with U.S. Customs and Border Protection (CBP) officers.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

 

If you want to learn more about Cap Gap, other immigration law questions, or about our legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com

USCIS will accept quota-based H-1B petitions from April 2nd to 6th, 2018 and will temporarily suspend premium processing for Cap-subject petitions

Adhikari Law, Washington DC. Starting from April 2, 2018 through April 6th, 2018 USCIS will be accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. It will also temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. USCIS will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.

Requesting Expedited Processing

While premium processing is suspended, a petitioner may submit a request to expedite an FY 2019 cap-subject H-1B petition if it meets the criteria on the Expedite Criteria webpage of USCIS. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria. USCIS reviews all expedite requests on a case-by-case basis.

Why USCIS is Temporarily Suspending Premium Processing for Quota-based Petitions

This temporary suspension will help USCIS to reduce overall H-1B processing times. By temporarily suspending premium processing, USCIS will be able to:

FY 2019 H-1B Cap and Cap Amounts
Last year, USCIS received more petitions than the available H-1B numerical cap (U.S. Master’s Cap 20,000 and regular cap 65,000), therefore, all the petitions had to go through a computer-generated random selection process (so called lottery) to select the petitions to allocate the statutory quota for FY 2018. After the numerical cap was allocated to the selected petitions USCIS returned those petitions which were not selected in lottery. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas can be set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.
There is a high likelihood that USCIS may receive large number of petitions in the first week of April itself than the available statutory cap for the FY 2019 H-1B quota too. Therefore, it is better to plan well in advance so that all H-1B petitions reaches USCIS within “five business days of the month of April“. However, before filing of the H-1B petition, the LCA has to be certified by Department of Labor which takes at least 8 days.
In the past several years, USCIS received far more number of H-1B petitions within the first five business days of the month of April for the U.S. Master’s Cap as well as regular cap than the available numerical quota, therefore, USCIS had to conduct the lottery.
USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B transfers, H-1B extensions for those individuals whose petitions have already been counted against the cap), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2018.
The following tips to ensure that your petition is filed timely:
  • Get all supporting documents ready (letters of support, end-client letter, necessary filing fees, etc.).
  • Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about eight days for DOL to certify an LCA. So the LCA should be filed as soon as possible and least 8 days before fourth business day of the month of April.
  • Evidence of Beneficiary’s Educational Qualifications:
    • A copy of beneficiary’s final transcripts. Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
      • A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded)
  •  If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that through work experience letters.
  • ​If the beneficiary has only the foreign academic degree, if the the education is not related to the occupation, or has insufficient educational background then we will have to either the academic equivalency evaluation report or a work-experience evaluation report to satisfy the minimum education or experience requirement. This process can take 1-5 days.

If you want to learn more about Cap Subject H-1B or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at contact@adhikarilaw.com

 

USCIS Policy Memo Provides Guidance on Contracts and Itinerary Requirements for H-1B Petitions

Washington, DC. USCIS has published a Policy Memo on Contracts and Itineraries Requirements for H-1B making clear that USCIS may request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.

USCIS clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location.

The guidance, effective Feb. 22, 2018, explains that, in order for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:

When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.

The updated policy guidance cites President Trump’s Buy American and Hire American Executive Order. Some legal experts have argued that this Executive Order may be against international trade and WTO rules, and this is a protectionist policy of current administration.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this topic or immigration law questions, or about our legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com

 

PLAN EARLY TO MEET FY 2019 H-1B NUMERICAL CAP TO FILE PETITION IN APRIL 2018

ADHIKARI LAW, Washington, DC.  U.S. employers and H-1B beneficiaries should be aware that USCIS will begin accepting H-1B petitions on April 2, 2018 and through April 6th, 2018 under Fiscal Year (FY) 2019 numerical cap. If the petition is approved the H-1B beneficiary can start working on October 1, 2018 or earlier if he/she is eligible for H-1B cap-gap. It is important to start the H-1B sponsorship process well in advance to complete the pre-filing preparations including filing the Labor Condition Application (LCA) to Department of Labor. These pre-filing preparations may last for eight (8) days since the LCA certification itself takes at least 7 days out of those 8 days.

FY 2019 H-1B Cap and Cap Amounts
Last year, USCIS received more petitions than the available H-1B numerical cap (U.S. Master’s Cap 20,000 and regular cap 65,000), therefore, all the petitions had to go through a computer-generated random selection process (so called lottery) to select the petitions to allocate the statutory quota for FY 2018. After the numerical cap was allocated to the selected petitions USCIS returned those petitions which were not selected in lottery. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas can be set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.
There is a high likelihood that USCIS may receive large number of petitions in the first week of April itself than the available statutory cap for the FY 2019 H-1B quota too. Therefore, it is better to plan well in advance so that all H-1B petitions reaches USCIS within “five business days of the month of April“. However, before filing of the H-1B petition, the LCA has to be certified by Department of Labor which takes at least 8 days.
In the past several years, USCIS received far more number of H-1B petitions within the first five business days of the month of April for the U.S. Master’s Cap as well as regular cap than the available numerical quota, therefore, USCIS had to conduct the lottery.
USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B transfers, H-1B extensions for those individuals whose petitions have already been counted against the cap), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2018.
Please note the following tips to ensure that your petition is filed timely:
  • Get all supporting documents ready (letters of support, end-client letter, necessary filing fees, etc.).
  • Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about eight days for DOL to certify an LCA. So the LCA should be filed as soon as possible and least 8 days before fourth business day of the month of April.
  • Evidence of Beneficiary’s Educational Qualifications:
    • A copy of beneficiary’s final transcripts. Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
      • A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded)
  •  If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that through work experience letters.
  • ​If the beneficiary has only the foreign academic degree, if the the education is not related to the occupation, or has insufficient educational background then we will have to either the academic equivalency evaluation report or a work-experience evaluation report to satisfy the minimum education or experience requirement. This process can take 1-5 days.

Published, January 29, 2018.


If you want to learn more about Cap Subject H-1B or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at contact@adhikarilaw.com

The Hill: Tech trade groups push Trump to allow H1B spouses work

The Hill: A coalition of major Washington, D.C., trade associations representing technology and other industries is urging the Department of Homeland Security (DHS) to preserve visas that allow spouses of H1B high-skilled workers to also be employed in the U.S. “Individuals looking to obtain H-4 authorization already legally reside in the United States and are on the path to permanent residency. They are also eager to work in order to support their families, contribute to their communities by paying taxes, and utilize their skills to help the U.S. economy grow,” the groups wrote in a letter to Lee Francis Cissna, director of U.S. Citizenship and Immigration Services (USCIS), a component of DHS.

“It is a function of the failure to reform our nation’s immigration system that this group of H-4 spouses — the majority of whom are women — continue to face uncertainty and may be prevented from working while they wait for bureaucratic backlogs to be cleared,” they continued.

Signatories on the letter spearheaded by the Information Technology Industry Council include Silicon Valley-backed immigration advocacy group Fwd.us and other technology trade associations like BSA and TechNet as well the National Association of Manufacturers and the Chamber of Commerce. (more here)

SF Chronicle (citing unnamed source): Trump administration has plans to wipe out work permits for H-1B spouses

Citing unnamed source SF Chronicle reports that Trump administration has plans to wipe out work permits for H-1B spouses. The Trump administration plans to stop granting work permits to spouses of H-1B holders, overturning a 2015 rule and affecting thousands of foreigners currently in the United States, according to sources who have spoken to The Chronicle about the move.

About 130,000 spouses and children of H-1B visa holders came to the U.S. on H-4 visas last year, a number that has been steadily increasing since 2012. Before President Barack Obama created a work permit for certain H-4 visa holders in 2015, these foreigners — often women — were not allowed to hold a job here or be issued a Social Security number.

From October 2015 to September 2016, 41,526 people received authorization to work under the program. Complete figures for the most recent fiscal year, which ended in September, are not yet available.


For now this is “just a guess” and we do not know exactly what is going to happen to the rule.

Do contact us at (+1) 888 820 4430 (toll free) or email us at info@adhikarilaw.com if you will have any questions about H-4 EAD or would like to discuss the plan and strategy to pursue in light of possible changes.