Understanding OPT Cap-Gap

The H-1B visa allows employers to temporarily employ a foreign national, who possesses at least a bachelor’s degree, in a specialty occupation. The H-1B employment period generally begins on October 1, the start of the federal government’s fiscal year.  There are special rules that act to automatically extend the US employment eligibility of qualified F-1 foreign student visa holders beyond the period initially authorized. The rule that relates to F-1 visa holders seeking to change to H-1B work visa status is referred to as “cap-gap.” This is because it is intended to fill the gap between the date the optional practical training (OPT) period would otherwise expire and the date that the new H-1B employment authorization starts. The 60-day grace period may not be enough to cover the “cap-gap” period until H-1B status begins. However, USCIS offers an OPT cap-gap extension if three conditions are met: An employer timely files a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting a change of the student’s status to H-1B. (Exception: Petitions requesting consular processing which do not qualify);  The H-1B petition asks for an October 1 start date; and  The student’s status, including any applicable grace period, ends between April and September 30. Situations […]
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Not Selected in the H-1B Lottery? Explore Your Other Global Options

With H-1B cap season winding down, employers will soon begin to receive returned petitions that were not selected in the lottery. Employees who have other valid status, such as F-1 OPT or L-1, can remain in the United States and keep working so that their employer may try again for the lottery next year. However, for other employees whose only option was the H-1B lottery, their employers may need to make other plans. One of the following global options may be a good fit:  Return home & work remotely: The employee could return to their home country and work from home remotely. This may have labor law, digital security, and tax implications for U.S. employers, but an employee who is living in their country of citizenship can work for any employer, anywhere in the world.  While using the employee’s services remotely might be not be ideal, it can be a good temporary solution while trying to figure out other ways of bringing this employee to join the company in the U.S.  Work in other countries: The employee may be eligible to work in other countries such as Canada, the UK or Mexico. A US company with a Canadian branch can use Intra-Company […]
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The ‘Buy American and Hire American’ Executive Order Two Years Later

On April 18, 2017, President Donald Trump signed an Executive Order titled “Buy American and Hire American.” The President insisted that the Executive Order would favor American workers more so than the policies already in place. He also intended, among other things, for the “Buy American and Hire American” Executive Order to address his concerns with the H-1B visa program. The President thought that the H-1B lottery system should be modified so that H-1B visas would only go to the most skilled and highest-paid applicants. He also insisted that the H-1B system should not be allowed to replace American workers with foreign workers. The new Executive Order was meant to address these flaws in the H-1B program. Technically, the executive order did not create any laws or modify any that already existed. Instead, the Order set in place a policy for the maximization of the production, and sale of goods, products and materials produced in the United States. With an eye toward fulfilling the mandate of the “Buy American and Hire American” Executive Order, United States Citizenship and Immigration Services (USCIS) has applied new rules, directives and adjustments to safeguard the jobs of American workers and to avert abuses of […]
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USCIS Reaches the H-1B Cap for 2020

The H-1B program provides an avenue for businesses in the United States to bring foreign nationals into the country to work. But, not just any foreign national will qualify for an H-1B visa. H-1B visas apply only to foreign workers with at least a bachelor’s degree and to occupations that require “highly specialized knowledge.” For example, H-1B visa holders often work in the fields of science, engineering, information technology, teaching and accounting. Making H-1B visas even more selective, the United States Congress has mandated a cap for the number of H-1B visas that will be offered every year. The cap is currently 65,000. There is, however, an exemption from the cap for an additional 20,000 foreign nationals who have earned a U.S. master’s degree or higher. Of course, the number of applications from businesses in the United States for H-1B visas greatly exceeds the cap. The open filing period for H-1Bs began on April 1, and by April 5, USCIS announced that they had received enough applications to meet the cap of 65,000. In total, USCIS received 201,011 H-1B petitions during the filing period. Due to the large number of applications, the applicants that will receive H-1B visas are chosen […]
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USCIS Launches H-1B Employer Data Hub

On April 1, 2019, USCIS launched the H-1B Employer Data Hub, a search tool/information base that provides information to the public. Some employers in the United States use the H-1B program to temporarily employ foreign workers in certain occupations. The Data Hub helps the public to view which employers petition for H-1B workers and calculate approval and denial rates. A petitioner can be searched by fiscal year, NAICS code, employer name, city, state or ZIP code. Data for individual fiscal years is available to download on the H-1B Employer Data Hub Files page. USCIS has also created the Understanding Our H-1B Employer Data Hub page to help the public use the data hub and understand the terminology used within.  USCIS will provide quarterly updates and annual releases of the data and anticipates updating the data hub on a quarterly basis. For example, data for the first quarter of a fiscal year (October through December), will be provided in April of that fiscal year.  If you have questions on the H-1B category or are interested in applying for an H-1B visa, be sure to contact Berardi Immigration Law today to schedule a consultation with one of our attorneys!
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H-1B Notice Requirement Compliance by Electronic Posting

The United States Department of Labor (DOL) regulations require all H-1B employers to maintain a list of records regarding the H-1B workers that they employ. These records are referred to as the public access file, or PAF. The PAF includes documentation of such information as the rate of pay for the H-1B workers and a summary of the benefits offered to H-1B workers, among others. One important record that must be included in the PAF is documentation that certain notice requirements were satisfied. The DOL regulations demand that notice be given to U.S. workers on or within 30 days before the employer files the Labor Condition Application or LCA with the Department of Labor. The LCA is a form employers must file with the DOL Employment and Training Administration (ETA) on behalf of employees applying for a non-immigrant H-1B work visa. The DOL provides specific guidance as to what information the notice must include. For instance, the notice must include the number of H-1B non-immigrants the employer is seeking to employ, the wages offered, the period of employment, the locations at which the H-1B nonimmigrants will be employed, as well as other information. While the H-1B employer has no control […]
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Premium Processing for H-1B Petitions Submitted Before December 21, 2018 Resumes

In March of 2018, United States Citizenship and Immigration Services (USCIS) suspended premium processing for all H-1B petitions subject to the 2019 cap. The reason for the suspension was to provide an opportunity for the agency to work through a backlog of petitions and thereby reduce overall H-1B processing times. Many H-1Bs had gone unprocessed due to the high volume of petitions USCIS was receiving, especially premium processing requests. In August of 2018, USCIS extended its suspension of premium processing of cap-subject H-1B petitions even further. And, beginning September 11, 2018, USCIS expanded its temporary suspension to include certain additional H-1B petitions. Things changed, however, on February 19, 2019: USCIS resumed premium processing for all H-1B petitions filed on or before December 21, 2018. The temporary suspension of premium processing remains in effect for H-1B petitions that were filed on or after December 22, 2018. Now that the suspension has been lifted, USCIS warns that petitioners seeking premium processing service may receive a transfer notice for a pending H-1B petition. In that case, the petitioner must submit the premium processing request, along with a copy of your transfer notice, to the service center now handling the petition. When an H-1B […]
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