United States: Important Reminders For Employers Regarding This Year's H-1B Cap

Last Updated: March 2 2016
Article by Jorge R. Lopez and Michelle A. White

As we head into the final month before petitions for H-1B visas must be filed for Fiscal Year 2017,1 employers should keep the following information in mind:

FEIN Validation

If an employer has not filed a labor condition application (LCA) since 2008, the Federal Employer Identification Number (FEIN) must be validated with the Department of Labor. The validation process usually takes three business days.

Some smaller companies are not able to easily locate the documents needed for FEIN verification. These companies can obtain a letter from their financial institution verifying that the company has an account with that institution and listing the company's FEIN. If an employer is not certain whether one of its documents meets the criteria for FEIN validation, the company can provide a bank letter because they are generally always accepted.

Prevailing Wage/OES/SOC Code

For H-1B petitions, the employer must pay, at a minimum, the prevailing wage for the position. The prevailing wage is based upon the geographic area of intended employment, the occupational classification, and the wage level for the position. To determine the prevailing wage, the employer must choose the occupational code that best suits the job offered and the wage level based on the minimum requirements for the position.

Not all occupational classifications are considered to be professional positions. For immigration purposes, a professional position in a specialty occupation means that the position requires a bachelor's degree in a specific field of study. The U.S. Citizenship and Immigration Services (USCIS) often issues Requests for Evidence (RFE) for positions in "specialty occupations" that on their face do not appear to classify as "professional." In addition, an employer that chooses an Occupational Employment Statistics/Standard Occupational Classification (OES/SOC) code that does not appear to be relevant to the proffered position may also be questioned by the USCIS.2

LCA/Posting Notice Requirement

Prior to filing an H-1B petition, an LCA must be certified. The LCA attests to the wages and working conditions of the H-1B worker. To file the LCA, an employer first must post the LCA or a posting notice containing the required information at the employee's worksite location.

If an employer chooses to post the LCA in lieu of a posting notice, the employer must post the LCA in such a way so that all six pages are visible to anyone who wishes to review this information. On the LCA/posting notice, the employer is required to list the salary or the salary range. It is a Department of Labor requirement that the notice remain posted for 10 business days. In addition, the employer is required to document the day the LCA/notice was posted and removed. This information should be retained in the employer's Public Access File.

Bachelor's Degree

The H-1B visa is for a specialty occupation, meaning one that requires a bachelor's degree in a specific occupation. For those employees that do not have a U.S. bachelor's degree or higher, a U.S. degree equivalency must be obtained.

Individuals who have at least 12 years of experience in their field, but do not have a degree, may be able to use this experience towards a degree equivalency. USCIS uses a 3-for-1 rule for equivalency, meaning every three years of experience counts toward one year of college education. Although many equivalency companies provide same-day services for an equivalency during cap season, it is important to plan ahead and ensure the degree equivalency will be relevant to the position offered. In addition, experience-based evaluations usually take longer and sometimes require employment verification letters.

Premium Processing

USCIS offers a premium processing service for an additional $1,225, which guarantees adjudication—either an approval or an RFE—within 15 days from the date of receipt. For H-1B cap cases, the premium processing service does not commence on April 1, 2016, when the filing period begins. Since USCIS must first conduct the lottery, it often takes several weeks to commence the premium processing service. Last year, USCIS commenced the premium processing service on April 27, 2015.

Below are a list of pros and cons to utilizing the premium processing service:

Pros:

  • Faster receipt notice. If a case is filed using the premium process, the company will receive a receipt notice sooner and, thus, can plan accordingly if the case is not selected for the H-1B cap. For regularly filed H-1B cap cases, it can sometimes take 1-2 months or more to find out if the case was selected or rejected.
  • Faster adjudication. Although the H-1B start date is not until October 1, 2016, if a Change of Status case has been filed, international travel is restricted while the case is pending. Last year, some H-1B cap cases were not adjudicated until the end of September, which prevented some individuals from traveling internationally from April 1, 2015 until October 1, 2016. In addition, if a case receives an RFE, the employer will know about the RFE within 15 days and can plan accordingly early on in the process.

Cons:

  • Start date is not until October 1, 2016. Since the H-1B visa start date is not until October 1, 2016, an approval notice that is issued in May will not allow an employee to commence working any sooner. As such, depending on the outcome of the case, premium processing may be considered an unnecessary expense.

The information above is intended to educate potential H-1B sponsors on important issues to consider during the H-1B cap season. For specific information, please contact legal counsel.

Footnotes

1 For critical filing dates and information on the FY 2017 Cap, see Gorge R. Lopez and Michelle A. White, Critical Filing Dates for FY 2017 H-1B Cap, Littler ASAP (Jan. 20, 2016).

2 Employers can find additional information on job codes and prevailing wages at these websites, respectively: http://www.onetonline.org/ and http://www.flcdatacenter.com/OESWizardStart.aspx.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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