Computer Programmers May Not Be Eligible For H1B Visa | Trump Tightens On H-1B Abuse

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With its policy of ‘Putting American Workers First’, the Trump administration has tightened the H-1B work visa norms that could have far-reaching implications for thousands of Indians applying for it.

On March 31, the US had ruled that being a simple computer programmer would no longer qualify as a ‘specialist profession’, which is a must for the issue of a H-1B work visa.

And, with a priority to get Americans employed, the US announced on Monday multiple measures to “further deter and detect H-1B visa fraud and abuse”.To know more information on h1b visa jibs check Orphosys Corp.

The US Citizenship and Immigration Services (USCIS) ruling that an entry level computer programmer position would not generally qualify as a “specialty occupation” reverses the US’ more than a decade-and-a-half old guidelines, that were issued in the context of addressing the new millennium needs.

The H1B visa is a non-immigrant visa that allows American firms to employ foreign workers in occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year.

“The fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation,” the USCIS Policy Memorandum ruled.

“This move could have far reaching implications for several Indians applying for H-1B visas. Also, this is likely to impact companies that seek such a visa for less experienced professionals.

However, it may not impact those companies that seek the visa for experienced people,” says Mahendra Jain, Partner with a member firm of EY (Ernst & Young) Global in India and former CEO of EY’s Global Shared Services division in India.

Further, Jain says that companies with operations in multiple geographies would end up outsourcing/ offshoring more work to India. “Hence, it may not be the end of the road for such companies—unless offshoring itself is banned,” he adds.

The H-1B visa ban may impact the US economy as well as the spending by the H-1B visa holders and their families in the US is likely to dip, says Jain.

The clarification on what constitutes a “specialty occupation” superseding and rescinding its previous guidelines of December 22, 2000 was issued by the USCIS through a new policy memorandum on March 31.

According to the USCIS, the December 22, 2000 memorandum entitled ‘Guidance memo on H-1B computer related positions’ is not an accurate articulation of current agency policy.

“USCIS is rescinding it to prevent inconsistencies in H-1B and H-1B1 adjudications between the three service centers that currently adjudicate H-1B petitions,” it said.

The USCIS argued that the 2000 memorandum was based on 1998-1999 and 2000-01 editions of the Occupational Outlook Handbook, which is now obsolete.

Checking H1-B visa ‘fraud and abuse’

The USCIS on Monday also announced that the H-1B visa programne should help US companies recruit “highly-skilled foreign nationals” when there is a “shortage” of qualified workers in the country.For more details on h1b recruiting agency visit Controlenter

“Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS,” it said in a media release.

It said targeted site visits would allow USCIS to focus resources where fraud and abuse of the H-1B programme may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit US workers. USCIS will continue random and unannounced visits nationwide.

These site visits are not meant to target non-immigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system, it clarified.

Employers who abuse the H-1B visa programme negatively affect US workers, decreasing wages and job opportunities as they import more foreign workers, the release said.

Tips For Consulting Companies Before Sponsoring H1B Petition

H1B sponsorship requirements

The company cannot offer the H1B sponsorship randomly to any candidate. The candidate to be eligible for the service needs to hold at least a bachelor’s degree. This is the minimum requirement; apart from it the candidate must have relevant and sufficient field experience.

The approval of H1B visa makes the candidate’s legal stay in USA valid for minimum of 3 years and maximum of 6 years. Consulting Companies that sponsor H1B visa has to take care of certain rules and regulations implemented in US law.

Getting H1B visa can be easy for large and well established company as compared to small sized startup. Yet there are certain fixed rules which apply equally on both the kinds of firms without showing bias nature.

The first step for consulting companies who sponsor H1B visa application for the candidate is to file the Labor condition application in co-ordination with US Department of Labor. For H1B Visa Process Visit Orphosys Corp.

The labor condition application acts as a proof or evidence having long list of statements which is in a way terms and conditions that assets the responsibility indicating that hiring the employee won’t affect the USA labors in any adverse manner.

The statements in the LCA are:

A. The employer will pay the employee the exact wage for the deserving position

B. The employer will give the employee same benefits as deserved by the position

C. The employer ensures that employee will not have negative impact on company

D. The employer should be clear about there being no dispute or ban on working for the position

In the LCA the employer has to note actual wage and the paid wage. The employer explicitly has to mention the working conditions, mention about strikes or lockouts.

Filing the LCA is the foremost requirement and is compulsory. Once the procedure is done, LCA becomes public property available to anyone who demands for it.

Second step for Consulting Companies who sponsor H1B is to file the H1B visa application and wait for the result. The result given by the visa officer can be positive or negative; this variation in results depends on many factors of the company. This is the phase where the startups face a hard time getting approval for their new hiring and situation might get sticky.

The basic demand of USCIS for the H1B visa approval is that company should be well and sufficiently established having the capability to employ the hiring employees. The company should be able to show the proper cash flow which indicates their financial capacity to pay employee wages according to norms of US labors law.

Company should provide the proof of having more money which shows giving more salary to employee and also legal proof of more business. Showing the money in account can be simple task for a well-established high earning firm but it can be troublesome task for small startups.To know more details on H1B Visa visit Painpeters

It requires startup to show the evidence of the income through the yearly turnover or venture capital. This is the clause sufficient to get the visa acceptance but not enough for the approval. The startups require proving their viability including business plan, employee contracts or lease for office space.

Assembling the documents can help in proving the legitimacy of the company and its business. Along with the entire document, tax return report can also be submitted. It can prove to be a valuable asset during the process of filing H-1B visa application.

The company will also have to be of sufficient size having a 4 member team may suffice and have the appropriate legal structure as these will be scrutinized along with everything else.

If a startup is able to prove their fiscal responsibility for the employee, the filing fees themselves should not be a challenge but it is worth noting that applying for an H-1B visa can cost high amount not including attorney’s fees.

So if you have enough money in the bank to support the employee’s salary AND support the business then these are typically sufficient, but there will be a number of items you need to assemble to show the viability of your business. The more money the company holds in bank the less it has to worry. The more legitimate the company is, more is the success rate of getting approval of H1B visa

Startups can file for the H1b visa for the candidate and have the positive result if they follow some tips Startups do face; immigration issues for both founder and employees but if follow the guidelines these can be resolved fast and in the cost efficient manner. A hefty monetary amount is involved in filing the application and thus startup can take the help of fellow mates.

The toughest point for the startup is when the company partner seeking for H1b visa. The crux of this clause intends to mean that H1B visa seeker himself is a partner in the startup, visa approval may become more muddled.

This situation closely violates the condition of the USCIS for the H1B visa which enforces to have the employee and the employer relationship. So when the person himself is the co-founder of founder he has the responsibility of hiring and firing which does not make him employee.

The USCIS for such typical cases have made provision which states that startups can provide verification of having separate Board of Directories excluding the candidate and that board has the legal power of hiring, firing, paying employee, supervise and control the employment of the beneficiary.

This assures that there is a different committee to check on the beneficiary and which makes the H1B visa attainable through USCIS.

Whether the employee applies through a small startup or a large company H-1B visa itself is not a gateway to a green card. It is a work visa rather than an immigrant visa. If a startup founder finds great success in the U.S. and wants to stay beyond the six-year limit, he or she will have to begin an entirely new process of immigration applications and paperwork.

If an employee is employed but is not allotted any work presently then he is known as a benched employee. According to the law of USA, the company who petitioned the USCIS to grant the H1B Visa is considered the employer which sponsors the H1B visa petition for its employee.

The certain criteria which the company should keep in mind according to regulations of LCA are:

A. Foreign worker is eligible to receive the compensation even though there is no immediate work

B. In any condition the employer cannot delay the payment of foreign employee giving lame reason

C. If the employer violates the payment of employee then they have to face the related consequences

D. The compensation is not offered for the leaves employee take for personal reasons.

E. Employers are also bound to pay their H1B employees even when the employer experiences a temporary shutdown in its operations.

H-1B Fees For Teachers

H1B Visa

The H-1B visa class is a viable option for primary, secondary or college teachers with the required knowledge and training. H-1B visa offers foreign professionals the ability to work temporarily in the United States as long as they hold specialty occupations.For H-1B Sponsorship  Process Visit Orphosyscorp.

For an H-1B visa for teachers, the exact requirements and eligibility conditions are noted below.

H-1B Fees for Teachers

The fees associated with obtaining an H-1B visa for teachers are as follows:

A. A basic filing fee of $460

B. The ACWIA fee of $750 for employers with fewer than 25 employees and $1,500 for more than 25 employees.

C. The Fraud Prevention and Detection fee of $500

D. The Public Law 114-113 fee of $4,000 for employers that have a workforce of over 50 employees with at least half of them on H-1B status.

It is important to note that these fees must be paid by your employer by law. The ACWIA, Anti-Fraud, and Public Law fees are all one-time fees paid per employer per beneficiary.

This means that these fees are not required for H-1B extensions or renewals, but will be required if you switch to a new employer. The basic filing fee is always applicable whenever an I-129 petition is filed.

You will be responsible for all of the costs associated with obtaining your H-1B visa for teachers at a U.S. consulate or embassy if you are currently outside the U.S.To know more info on H1B Visa check Painpeters

These include:

A. DS-160 fee of $190 for the H-1B holder and for each H4 spouse or dependent that will be accompanying you to the U.S.

B. Travel costs

C. Biometric services fees (if applicable). This is usually a one-time charge of $85.

H1B Renewal Process

Employment Visa

On January 17, 2017, the Federal Register implemented a final rule that heavily affected many working visas including the H-1B. In particular, it made an impact on visa holders who are attempting to apply for an H-1B extension while working toward lawful permanent resident status (green card).

When applying for an employment-based green card, your sponsoring employer must file an I-140 petition. For H1B Sponsorship Process Visit UT Evaluators.

Before the final rule, the regulations mandated that the I-140 needed to be submitted 365 days before the end of the 6-year maximum stay. Instead, the Federal Register has amended this to say that the petition must be filed at least 365 days before the beginning of your exemption.

H1B Renewal Process:

There are several ways that you can receive an H-1B extension after 3 years:

1-Year H-1B Extension

The foreign professional may apply for an H-1B extension past 6 years in one-year intervals. This can occur if the PERM petition or the I-140 was filed 365 days before the 6-year expiration date.

3-Year H-1B Extension

The foreign professional is able to apply for an H-1B visa extension status for up to 3 years if the applicant has an approved I-140 petition for the EB-1, EB-2 or EB-3 employment-based green card classifications and the immigrant visa number is unavailable.

This is usually granted so that beneficiaries do not have to return home while they wait for their priority dates to become current. Because some people must wait over a decade for an EB-3 immigrant visa number to become available, this H-1B extension can be very helpful. To know more info on H1B Visa visit Painpeters

“Recapture” Time

Many H-1B holders decide to travel internationally for extended periods of time. “Recapturing” that time spent abroad is one way to be granted an H-1B visa extension.

The foreign professional may request an H-1B extension if he/she traveled outside the United States during the validity of the visa. The applicant is obligated to submit U.S. entry and return dates, I-94 copies, and related stamps.

Here is an example: If Sue, an H-1B worker, visits her home country of Germany for a total of two months during her stay in the U.S., she may be eligible for an H-1B extension of two months past the normal 6-year limit provided that she can give evidence of her departure.

H-1B Processing Time Delays: USCIS Requests For Evidence

Employment Visa

Sometimes, the USCIS encounters a problem with petitions during the H-1B processing time. Rather than deny your petition outright, you may instead receive a Request for Evidence (RFE).

As soon as your employer receives an RFE, there will be a time window in which a response must be given to avoid having your petition denied. For H1B Sponsorship Process Visit UT Evaluators.

There are a variety of things that can trigger an RFE such as:

A. An insufficient job description that does not portray the job as a specialty position requiring a bachelor’s degree or higher.

B. A lack of evidence that you, the applicant, are qualified for the job either through a lack of experience or by having a degree that is not related to the position.

C. A lack of proof that your sponsoring employer has complete control over your daily tasks, employment status, and wages.

Getting an RFE can cause a potentially harmful delay in your H-1B processing time. If you receive one, you may want to consider speaking to your immigration attorney about premium processing.

It is important to note that premium processing does not prevent the USCIS from issuing an RFE. For more info on H1B Visa  visit Wwrdheritage

Note that the above list is not comprehensive. The USCIS can issue an RFE for a large variety of reasons. See how the experienced attorneys at Immi-USA tackled a difficult H-1B Request for Evidence.

H-1B Visa Transfer Before & After Stamping

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If you are in the process of obtaining an H-1B visa, you already know that it is a non-immigrant visa option for foreign workers with specific knowledge, education, or expertise that will allow you to be employed by a U.S.-based organization.

Because of this, you are not able to petition on your own behalf. Instead, your employer will file the required application with the USCIS. If the employer who initially sent the application is either unwilling or unable to complete the process or you find a better opportunity with a different U.S. H1B Visa Transfer Before Stampingemployer before you enter the U.S., an H-1B visa transfer before stamping may be necessary. For H1B Visa Process Visit UT Evaluators

Making it through the lottery and getting an H-1B visa petition approved is no small task, so it is understandable to be cautious when making changes. That’s why deciding whether you should transfer your employment before entering the U.S. or waiting until you have arrived to change is an issue to discuss with an immigration attorney.

Here are the facts surrounding both scenarios:

H-1B Visa Transfer Before Stamping

If you are still outside the U.S. and have received approval for your petition but have yet to get it stamped on your passport, there are some things to consider associated with getting an H-1B visa transfer before entering the U.S.

The first is that filing for a transfer is essentially filing a new H-1B petition, before or after stamping. This petition, however, does not require re-entry into the H-1B lottery. Even though your new employer is filing a new petition, you have already been counted in that year’s visa cap. This means that you do not have to compete again with thousands of other applicants to secure your approval.

The primary concern is if the employer who initially submitted the approved petition were to learn of a petition of transfer being filed on your behalf, he or she would be able to withdraw their approved petition. This would re-enter you into the lottery and void the second company’s petition, meaning that you would find yourself competing in the lottery to have your petition approved again.

Fortunately, the amount of information that your initial employer receives is up to you. The USCIS does not inform anyone of the petitions it gets and so will protect your privacy. If you are worried about the possibility of petition withdrawal, consider asking your immigration attorney about premium processing.

H-1B Visa Transfer After Stamping

Waiting until you have entered the U.S. is safer than getting an H-1B transfer before stamping since your employer’s petition cannot be withdrawn after the visa has been stamped. Then you can simply have the new employer file a second lottery-free petition on your behalf. For more info on H1B Visa  check Bpas

Because a gap in employment could mean weeks or even months of lost wages, you may have to work with your initial employer while the transfer petition is being processed. Once your new employer has received an I-797 Notice of Action Receipt form, you are free to transfer your employment.

In The Year 2018 Three-Fourths Of H1B Visa Holders Are Indians

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Nearly three out of every four H-1B visa holders as of October 5 are Indian citizens, an official US report has said.

According to the US Citizenship and Immigration Services (USCIS), there were as many as 419,637 foreign nationals working in the US on H-1B visas as on October 5.

Of these, 309,986 are Indians, the USCIS said in its report ‘H-1B petitions by gender and country of birth fiscal year 2018’. Check for H1B Visa Process in UT Evaluators

The report reveals a massive gender disparity – only one out of every four H-1B visa holders is female. Of the 419,637 H-1B visa holders, 106,096 (or 25.3 per cent) are females as against 311,997 (or 74.3 per cent males), it said.

Gender disparity is wider among Indians.

Of the 309,986 Indians on H-1B visas in the US this October, only 63,220 or 20.4 per cent are females while nearly 245,517 Indians on H-1B visas or 80 per cent (79.2 per cent to be precise) are males. As many as 1,249 Indians on H-1B visas have been characterised in the category of missing/others.

Indians, who account for 73.9 per cent of the total H-1B visa holders in the US, are followed by a distant Chinese with 47,172 on H-1B visas, accounting for 11.2 per cent of the total foreign nationals on this work visas.

But there is not much gender disparity among the Chinese on H-1B visas. According to the report, 21,342 or 45.2 per cent are females and 25,718 or 54.5 per cent are males.

After India and China, Canada and South Korea are the only two countries which account for a little over one per cent (1.1 per cent to be precise) each on H-1B visas. Check for H1B Visa in Aryavarta

After that all other countries constitute less than one per cent of the H-1B visas as of October 5.

The Philippines is the only country in top 10 H-1B visa holders wherein there are more females (1712 or 52.7 per cent) on H-1B visas than males (1519 or 46.7 per cent) on H-1B visas. As of October 5, as many as 3,250 professionals from the Philippines were on H-1B visas.

The H-1B gender report was released days after the Trump administration came out with its unified fall agenda, in which it said that it plans to make changes in the definition of specialty occupation for the definition of H-1B visas and re-redefining the relationship between employees and employers.

The proposed regulations, it said, is aimed at attracting the best and the brightest from across the world, prevent the abuse of H-1B visas which is consentient with the hire American agenda of the Trump administration.

The USCIS is also proposing to introduce a pre-registration system for foreign students in the US. Technically it is possible that if 85,000 such students succeed in getting H-1B visas, no overseas applicants could apply.

How To Track Your H1B Visa Application

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Many international students seek an H-1B Visa to work in the U.S. after graduating from college. The added steps involved in getting an H-1B Visa make the job hunt challenging for international students, but they are necessary to extend your stay in the U.S.

While you cannot control the outcome of your H1B Visa application, you should still stay up to date with your application’s status. The process of following your application is simple. For H1B Visa Process Visit UT Evaluators

Connect With Your DSO

Designated school officials (DSO) are hired to maintain the Student Exchange and Visitor Program (SEVP) for international students on your campus. They regularly check in with Student Exchange and Visitor Information System (SEVIS), which has the most up-to-date information on your status.

If your H-1B application is selected for the lottery, your SEVIS ID will be updated to reflect that. Once you receive your receipt number, you will officially be entered into the lottery for your H1B Visa.

Track Your Application

After being entered into the lottery, you can use the receipt number to monitor the status of your application. The U.S. Citizenship and Immigration Services (USCIS) offers an online tracking tool for this.

Submit a Ticket

If you are missing an authorization or if your request is taking longer than you requested you should submit an e-Request for support with your particular issue. The USCIS also offers more detailed information on processing times for your particular case. Check for  H1B Visa in seepennywork

If you are confused by some of the terms throughout your H1B Visa application process, use the Department of Homeland Security Glossary.

L-1 Versus H-1B Visas : Switching From One Visa To The Other

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If you have either an H-1B or an L-1 visa and see that the other visa is better for your situation, you may want to make the change for the sake of your immigration future.

While switching from an H-1B to an L-1 is less common due to the fact that you must have worked for one full year in the three years leading up to your petition. Check for H1B Visa Process in UT Evaluators

However, many people choose to change their status from an L-1 to an H-1B visa. This could be either due to the greater flexibility or the opportunity to work for a different employer.

To do this, you will need to find an employer who is willing to sponsor you for an H-1B visa. If this employer is cap-subject, you will not be able to have your petition submitted until the lottery window opens on the first business day in April and you will not be able to start working as an H-1B worker until October 1st of that same year.

If you are going with a cap-exempt employer, then you can start working as soon as your I-129 is approved without having to wait for the cap filing window. You will also not have to wonder whether or not your petition will be selected.

You will need to make sure that you have at least a bachelor’s degree that is related to the specialty position for which you have a job offer. The USCIS will heavily scrutinize the specialty nature of the position, so it may be best to retain the services of an H-1B attorney to ensure that you qualify.

How Immigration Attorneys Can Help

The H-1B and L-1 visas each possess their share of pros and cons. They are both temporary work visas and maintain dual intent–with the option to apply for a green card without affecting visa status. For H1B Visa Process Visit here

It’s crucial to carefully weigh the similarities and differences of each one in relation to your unique needs and status. Keep in mind the education and employer requirements, maximum duration, annual caps, and spouse employment.

Contact one of our Fort Lauderdale immigration lawyers to begin the filing process today. We ensure that all documents and petitions are filed in a timely manner and make it a point to accommodate each one of our clients.

H-1B vs L-1: Key Differences

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DIFFERENCE RELATED TO EDUCATIONAL REQUIREMENTS

As previously mentioned, the H-1B recipients must retain specialized knowledge in the field and possess at minimum a bachelor’s degree or equivalent. At a minimum, a bachelor’s degree/equivalent or higher constitutes eligibility for an H-1B visa. Check for H1B Visa Process in UT Evaluators

However, in certain instances, the education requirements may be substituted with hands-on work experience. The key is that you have a relevant degree/work experience for the job accompanying the H-1B visa.

For instance, just because you have a bachelor’s degree in Marine Biology, doesn’t mean you’ll be qualified for an H-1B visa to work as a Mechanical Engineer. Conversely, there is no degree or educational requirement for an L-1 and the specialized knowledge does not need to be in a specific field as is the case with the H-1B.

DIFFERENCE RELATED TO EMPLOYER ELIGIBILITY

The petition process varies significantly between the H-1B visa and L-1 visas.

Only multinational companies qualify for L-1 visas. This status is for individuals who have a prior work history with the company but live in a foreign country. An L-1 visa must be filed by an intra-company transferee which means that the individual was employed for an entire year (within the past three years before filing the L-1 visa petition). If this consideration is not met, or the enterprise is not multinational, an L-1 visa is no longer a viable option. For H1B Visa Process Visit here

An H-1B visa, on the other hand, can be petitioned for by any United States-based company, assuming the other requirements are met. Once granted, however, the visa is valid only to work for that specific employer or corporation.