Categories: Employment Visas

Does paying for premium processing on an H1B case mean I will find out sooner if our case was selected in the lottery?

Premium processing is an add-on service that USCIS offers for a variety of immigration cases, primarily in the employment-based visa categories.  Premium processing costs an additional $1225 in USCIS filing fees.  USCIS promises to adjudicate premium processing cases in 15 calendar days of the receipt date, unless they issue a request for additional evidence.  The clock stops while the request for evidence is pending.

We often recommend that our clients pay the extra money for premium processing.  This allows for a higher quality of scrutiny from more seasoned immigration officers and results in a faster answer.

The one thing it does not do is guarantee a faster answer on the question of whether an H1B case made it through the visa lottery.  In 2015, USCIS received 223,000 applications for 85,000 visas.  This led to significant delays in the agency opening the packages and selecting the possible visa recipients through a lottery.

One of our clients who paid for premium processing recently asked why it was taking so long to hear on their case even though they paid for premium processing.  We suspect it is because their case was not selected in the lottery.  But we emphasized that getting selected is not dependent on premium processing and that paying the extra fee does not necessarily mean that you find out the lottery results any more quickly than everyone else.

What should I do if I am applying for an employment visa, but my academic records are from overseas?

To qualify for an H1-B visa, an employer petitioner must establish that the beneficiary of the visa has earned either a U.S. bachelor’s degree or its equivalent.   If the beneficiary does not have a U.S. degree, a credentials evaluation can show the United States Citizenship and Immigration Services (USCIS), the agency that adjudicates the beneficiary’s application, that the beneficiary’s foreign education and experience meets this requirement.  Certain companies specialize in providing these evaluation services.  These companies evaluate foreign degrees, transcripts, and work experience, and convert the information into its U.S. equivalency.  USCIS will only accept a credentials evaluation from a service that specializes in assessing foreign credentials and experience.

A credentials evaluation is not always required by USCIS, but it is highly recommended.  Without a credentials evaluation, USCIS will independently evaluate a beneficiary’s records.  If the agency does not believe the requirements have been met, it will either request additional evidence to show that the beneficiary has the equivalency of a U.S. bachelor’s degree, or deny the application.  A credentials evaluation not only determines whether a beneficiary qualifies before USCIS adjudicates the application, but the company providing the service will usually cooperate with USCIS in the event the agency disagrees with any part of its assessment or requires more information to reach a decision.

Credentials evaluations can consist of more than just degrees and transcripts.  In some cases, work experience can satisfy all or part of the U.S. bachelor’s degree requirement.  Generally, three years of work experience is the equivalent of one year of U.S. education at the bachelor’s level, and five years of work experience is the equivalent of one year of U.S. education at the master’s level.   A credentials evaluating service will charge different rates depending on the type of evaluation required and the occupation of the beneficiary.

What is the H-1B Cap Filing Season & Why is it Important?

Congress limits the number of employment based, H-1B visas to roughly 65,000 every fiscal year.  The H-1B visa is the most popular type of employment visas for important foreign national employees and is available for a varitey of professions including computer science, accounting, teaching, engineering and biology.  The fiscal year begins October 1 of each year. When an employee obtains an H-1B visa, that visa runs from October 1 through three years to the September 30th of that third year.

USCIS allows employers to file for H-1B visas six months early.  This means that the filing season starts on April 1 for people seeking employment visas for the following October.  If by April 5th of the filing season, USCIS receives more H-1B visa applications than the number alloted by Congress, an H-1B lottery is held and some cases are rejected for filing when they are not selected in the lottery.

The obvious importance of this is the fact that an employer is almost guaranteed to not obtain an H-1B visa if they fail to file the application by the April 1st deadline.  Because there are several logistical steps that must be completed prior to filing the actual H-1B visa, an employer cannot wait until mid-March to begin working on the application.

This is what gives rise to the H-1B cap filing season.  Business immigration lawyers are busy during the spring time of the year as they first must obtain a Labor Condition Application on file with the Department of Labor.  This takes a bit of time and work on the immigration practitioner’s part.  Job postings must be present at company work sites for ten days.  This is why a smart employer starts on the process early.

If you have questions about the H-1B process, give us a call at (314) 961-8200 or email us at jwhitlock@hackinglawpractice.com.

DOL

What is the H1B cap?

Congress has capped (or limited) the number of available H1B employment visas to 65,000 per year.  Of these 65,000, up to 6,800 are set aside for workers from Chile and/or Singapore.  The H1B season begins April 1st every year.

Some H1B petitions are exempt from the cap because the worker has an advanced degree.  A cap exemption exists to the first 20,000 petitions filed for a beneficiary who holds a U.S. master’s degree or higher.

Petitions for new H1B employment at institutions of higher learning or related nonprofit/governmental organizations are also cap-exempt, that is, they don’t count towards the 65,000 cutoff.

Finally, petitions filed on behalf of current H1B workers that have already been counted against the cap do not count towards the 65,000.

If USCIS receives more than 65,000 cap-subject petitions on or around April 1st, a visa lottery is conducted.  This means that even if you file everything correctly for your foreign-born worker, an H1B visa may be unavailable.

H1b logo

Can H1b visa holder have second job as an independent contractor?

The short answer is that a foreign worker can work two jobs in the U.S.  These can be 2 full time jobs, 1 full and 1 part time job or 1 full time job with an independent contractor job on the side.  But the foreign worker would have to be sponsored for an H1b visa by each employer or company.  Two separate job positions means that two separate H1b visa applications must be filed.

Simply calling the second position an “independent contractor” position does not change the analysis.  A second H1b visa is still required.

Can I work 2 jobs on a single H1B visa?

Federal immigration law allows immigrants to work for a single employer, with an approved H-1B petition.  The H-1B process is the system by which USCIS allows individuals from other countries to work in the U.S.  The general rule is that any work outside the employment for the approved H-1B employer is prohibited.

The law does allow for concurrent employment; however, a separate H-1B application must be filed before work for the second employer may begin.  All of the same rules apply to the second H-1B job that apply to the first.  That means the prevailing wage must be paid, the position must be at the bachelor’s degree level or beyond and the applicant’s resume must satisfy the job qualifications.  In the concurrent employment situation, the portability rules regarding H-1B transfers applies and this allows the H-1B employee to begin working for the second employer once the receipt notice for the second position is obtained from USCIS.

If you have questions about concurrent H-1B visas or need guidance in navigating the federal immigration system for your company or employees, please feel free to give us a call at 314-961-8200 or visit our contact page here.

TRANSCRIPT:

Can a foreign worker work for 2 employers in the United States, without filing separate H1B Visas? If this is a question you have, this is the video for you.

Hi, I’m Jim Hacking, immigration attorney practicing law here in St. Louis, Missouri. We get a lot of questions about dual employment, under the H1B process. Very simply, the H1B process is the way that the immigration service allows foreign born workers to work in the United States. Typically, if you’re here on an employment Visa, it’s an H1B Visa. Under that Visa, you typically can only work for 1 employer.

Outside employment is pretty much prohibited. If you file a second H1B application and your second employer pays for the filing fees, and goes through all of the paperwork to get that second H1B Visa, then you can indeed work for 2 separate employers.

Without that separate H1B application on file, you’re not going to be able to work for both employers. Each employer is going to have to get a prevailing wage statement, and an LCA from the Department of Labor. You are going to have to show that you’re qualified for both positions. The employer is going to have to post the job at both job sites. Both employers are going to have to do that. Each H1B application is approved.

We explain this to a lot of people. Sometimes they say, “Well, what if the second job is an independent contractor? Does that get around the requirement?” The answer is no. You can frame it however you want. At the end of the day, if you’re working for 2 different companies, you are going to have to get 2 separate H1B applications on file and approved.

Of course, with the cap on H1B Visas, a lot of times, this can be problematic. Every year we scramble at April 1st to get all the H1B applications on file because there’s a lottery. Last year, there were almost twice as many filed as there were available Visas. The chances of an employee getting 2 separate H1B Visas approved are pretty slim.

If you pull it off, though, you can do it. Otherwise, you can’t work 2 jobs on a single H1B. Like I said, we deal with this question about employment Visas all the time. If you have any questions, go ahead, give us a call. (314) 961-8200 or you can shoot me an email at jim@hackinglawpractice.com. Thanks for visiting the website and if you have any questions, let us know.

 

What is premium processing and is it available in every type of immigration case?

As people and organizations that deal with the immigration service know, there are often frustrating delays involved in pursuing benefits from that service.  Important decisions are delayed by backlogs and employers and their current/prospective employees must often wait several months to learn the outcome of an application.

Citizenship & Immigration Services (USCIS) has created a program through which certain employment-based petitions and applications can be considered and adjudicated on a significantly expedited time frame.  For employers willing to pay an $1,225 (in addition to the filing fee for the actual petition/application), USCIS commits to adjudicating the underlying petition/application within 15 calendar days.  For employers needing a quick resolution a petition/application, this is an important accomodation provided by an immigration service with otherwise frustrating and lengthy processing timeframes.

The 15 day period begins upon receipt of a Form I-907 submitted to the USCIS.  This form can accompany an original petition/application or be filed at a subsequent date to expedite processing already underway.  USCIS frequently issues a Request for Evidence and the 15 day time clock is stayed while USCIS awaits the response from the petitioning party.

There are some important considerations to understand and address as employers determine whether premium processing makes sense for them:

  • As with the filing fees, the employer itself (not the beneficiary/employee) must pay the filing fees for premium processing.
  • The nonimmigrant petitions for which an employee may utilize premium processing include the treaty trader/investor program (E visas), some temporary worker petitions (H-1B, H-2B, and H-3), intracompany transfers (L visas), O and P visas for extraordinary ability and performers, religious workers (R visas) (under certain conditions) and NAFTA-based workers (TN visa status).
  • In addition, employers may now utilize premium processing for employment-based immigrant visa petitions for EB-1 through EB-3 categories.

There are strategies for how best to consider, assemble, and pursue premium processing based cases and we are well-versed in these determinations.  If you need assistance with premium processing, please contact the St. Louis immigration attorneys at the Hacking Law Practice, LLC.  You can use our online contact form or call our toll-free number – 314-961-8200.

What are the rules on H1B extensions or renewals?

An H1B visa is generally good for three years.  The visa may be extended for an additional three years.  To obtain an extension, the employer must file a new Form I-129 and submit additional filing fees.  The cap-subject employer need not worry about the H1B cap for a renewal because the employee has been already been counted against the cap and the cap does not come into play on an H1B renewal.

The so-called 240 Day Rule allows a foreign employee who has a pending H1B renewal to continue work for the current employer for up to 240 days (8 months) or until such a renewal application is denied.  Continued employment is still governed by all of the restrictions contained in the original H1B visa.  This 240 Day Rule is not an independent basis for H1B renewal, but instead must be based on a good faith H1B extension application.  

In addition, if the H1B worker leaves the U.S. while the H1B extension is pending and within the 240 Day Rule, they will most likely have to wait outside the United States for the extension itself to be approved.  The 240 Day Rule should not be relied upon to guarantee the worker’s reentry to the U.S.  The worker should stay in the U.S. while the extension is pending.

A foreign employee is generally allowed a maximum of six years in H1B status.  There is a way to recapture days in which the employee was outside the United States so as to make sure that every single day of the six years are utilized.  Once the six year limitation is reached, the employee must be physically outside the U.S. for an entire uninterrupted year before they will be allowed to apply for another H1B.  Keep in mind that after the year is up, if the employee and employer wish to apply for another H1B and the job is cap subject, they would have to enter the lottery once more.

H1B status may be extended beyond six years in certain limited circumstances.  If the employer has filed an I-140 Immigrant Petition as part of trying to obtain lawful permanent resident status (a green card) and the I-140 has been approved, an H1B extension can be filed.  H1B status can be extended for three years if the employee is the beneficiary of an approved I-140 petition, but their priority date is not yet current (an immigrant visa number is not available).

Similarly, if the employer has filed a PERM application (the first step in the employment green card process) with the Department of Labor or an I-140 with USCIS and those petitions have been pending for more than 365 days, the H1B can be extended.  In these situations, the extensions are only available in one year increments.  

Can I renew my work card if our I-130 is delayed?

Carlos from Springfield, Illinois asks “My U.S. citizen wife filed an I-130 on my behalf and I filed an I-485 to adjust my status to that of lawful permanent residence.  We also filed for temporary work authorization while the green card case is pending.  Our case has been delayed and my work card will expire in 4 months.  What should I do?”  

Applicants for spouse-based adjustment to permanent residence status are eligibile to work in the United States while their applications are pending. Unfortunately, because of Governmental delays in processing these applications, many Employment Authorization Documents (EADs) expire before their holder receives their green card. What can these individuals do in order to continue working legally in the United States?

Fortunately, people placed in this situation are eligible to renew their EADs. According to Government instructions, when an individual is within 120 days of their EAD expiring, they can submit form I-765 for a renewal of their EAD. While there is normally a fee involved in this renewal process, the Government instructions specify that an “adjustment applicant who applied after July 30, 2007” does not have to pay any fee to renew their EAD.

What are the rules on H1B extensions or renewals?

An H1B visa is generally good for three years.  The visa may be extended for an additional three years.  To obtain an extension, the employer must file a new Form I-129 and submit additional filing fees.  The cap-subject employer need not worry about the H1B cap for a renewal because the employee has been already been counted against the cap and the cap does not come into play on an H1B renewal.

The so-called 240 Day Rule allows a foreign employee who has a pending H1B renewal to continue work for the current employer for up to 240 days (8 months) or until such a renewal application is denied.  Continued employment is still governed by all of the restrictions contained in the original H1B visa.  This 240 Day Rule is not an independent basis for H1B renewal, but instead must be based on a good faith H1B extension application.  

In addition, if the H1B worker leaves the U.S. while the H1B extension is pending and within the 240 Day Rule, they will most likely have to wait outside the United States for the extension itself to be approved.  The 240 Day Rule should not be relied upon to guarantee the worker’s reentry to the U.S.  The worker should stay in the U.S. while the extension is pending.

A foreign employee is generally allowed a maximum of six years in H1B status.  There is a way to recapture days in which the employee was outside the United States so as to make sure that every single day of the six years are utilized.  Once the six year limitation is reached, the employee must be physically outside the U.S. for an entire uninterrupted year before they will be allowed to apply for another H1B.  Keep in mind that after the year is up, if the employee and employer wish to apply for another H1B and the job is cap subject, they would have to enter the lottery once more.

H1B status may be extended beyond six years in certain limited circumstances.  If the employer has filed an I-140 Immigrant Petition as part of trying to obtain lawful permanent resident status (a green card) and the I-140 has been approved, an H1B extension can be filed.  H1B status can be extended for three years if the employee is the beneficiary of an approved I-140 petition, but their priority date is not yet current (an immigrant visa number is not available).

Similarly, if the employer has filed a PERM application (the first step in the employment green card process) with the Department of Labor or an I-140 with USCIS and those petitions have been pending for more than 365 days, the H1B can be extended.  In these situations, the extensions are only available in one year increments.