MVP "Immigration Q & A Forum" - This Friday, July 6, 2012

July 3, 2012

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMERS, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, July 6th, 2012. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

MVP "Immigration Q & A Forum" - This Friday, January 20, 2012

January 16, 2012

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, the monthly visa bulletin, adjustment applications or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, January 20th, 2012. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

MVP "Immigration Q & A Forum" - This Friday, December 9, 2011

December 5, 2011

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, the monthly visa bulletin, adjustment applications or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, December 9th, 2011. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

MVP LAW GROUP – Q & A Forum, July 9, 2010

July 9, 2010

Question #1 – Marriage Based Immigration – Conditional Permanent Resident
I would like to know the procedure for “removing conditions.” When can I file? I’m married to a U.S. Citizen and my conditional green card is set to expire in May of 2011.

Answer #1
You can file to remove the conditions 90 days prior to the expiration of your second anniversary as a conditional resident. It is very important that you file Form I-751 (Petition to Remove the Conditions on Residence) within the 90 day window of time. If you file too early, the USCIS will send your application back. You may file at any time during the 90 day window, but it is suggested that you file fairly early in the window. If you fail to properly file Form I-751 within the 90 day period, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you and a hearing will be conducted where you will be given the opportunity to rebut the government’s allegations against you.

The items involved in filing the application to “remove conditions” include: a completed Form I-751; USCIS filing fee of $545.00; certified copy of front and back of permanent resident card; evidence of a bona fide relationship; and a detailed cover sheet indicating the contents of the package.


Question #2 - Employment Based Immigration – Green Card
I’m confused. My priority date is current and I want to file my I-485 application. Do I have to pay for both Employment Authorization and Advance Parole; I’ve seen conflicting information on various immigration forums.

Answer #2
Taken verbatim from the USCIS website - If you file Form I-485 to adjust your status as a permanent resident on or after July 30, 2007, no additional fee is required to also file an application for employment authorization (EAD) on Form I-765 and/or advance parole (AP) on Form I-131. If you choose to file the I-765 and/or I-131 separately after July 30, 2007, you must also submit a copy of your I-797C, Notice of Action receipt as evidence of the filing of an I-485.

Accordingly, for a total of $1,010.00 you may submit Form I-485; Form I-765 and Form I-131 to the USCIS for processing. The filing fees are less for applicants 79+, and for children under the age of 14.

If you would like to renew your EAD and/or AP document, you will be required to pay the associated fees of $340.00 for EAD renewal and/or $305.00 for AP renewal.


Question #3 – General
I am not sure what is going on with my pending I-140 application. I heard that I can contact USCIS and make a service request for them to look further into my case and why it is taking so long. Is this true? How do I do it? Does my employer need to contact them?

Answer #3
The USCIS National Customer Service Center, which can be reached at 1-800-375-5283, will initiate a service request when a petition is outside of the normal processing time if the request is made by the sponsoring Petitioner, the Applicant/Beneficiary, or an Authorized Representative or an Attorney for the Petitioner/Applicant.

If making a service request to the Customer Service Center, please have the following information handy so that the Officer/Agent will be better able to assist you: your full name, your complete mailing address, your date of birth, your receipt number for the pending application/petition, the filing date of your pending application/petition, your priority date, your preference category, and possibly, the position indicated on your certified labor. If your case is outside of the normal processing time, the Officer/Agent will initiate a service request and will provide you with a timeframe for a response and a referral number in case you have to call back because no correspondence was issued within the timeframe suggested.


Question #4 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
My immigration details are as follows:

Visa type : F1
Visa Issue Date : 20 June 2007
Visa Expiration Date : 18 June 2012

Course : M.S. in Computer Engineering
Status : Completed
Course Completion Date : 30 May 2010
Course Duration : Fall 2007 - Spring 2010

Initial I-20 issued on : 08/17/2007
New I-20 issued on : 01/19/2010

The problem that I am currently facing is that I was issued a new I-20 for the period 01/19/2010 to 05/30/2010 with a different Sevis number. I was required to pay the Sevis fees once again. Due to the same, I have one semester of study reflecting on my current Sevis. To apply for an OPT, one needs at least two semesters of study. Hence, I am not able to apply for an OPT. I am therefore looking for a job in a company that can process my H1B. Do I qualify to file an H-1B if I can find a willing sponsor?

Answer #4
Given the circumstances of your current situation, I do not foresee any issues in you applying for an H-1B visa under the Master’s CAP exemption. If the sponsoring employer has a position for you that normally requires at a minimum the attainment of a Bachelors degree in a field related to your specific degree, then you should qualify given the details you have provided. However, you will need to speak with an Experienced Immigration Lawyer to better evaluate the situation once you have secured an employer to sponsor your visa.


Question #5 - Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
Are H-1B visas for FY2011 still available? What do the numbers look like? Is there still time to file?

Answer #5
The H-1B 2011 CAP opened on April 1, 2010 and is still OPEN. The H-1B FY2011 runs from October 1, 2010 until September 30, 2011. As of July 2, 2010, 40,800 H-1B regular CAP visas are still available for FY2011 out of 65,000. There are approximately 9,600 H-1B Master’s exemption visas still available for FY2011 out of 20,000.


Question #6 - Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
My company has filed several H-1B visas for Physical Therapists, only two are in the US, working as of now. One of them wants to leave my company and go to another employer. This is something against our interests, as to date we have spent a lot of time and effort in bringing them to the US. Is there anything we can do about it? At any time during the transfer
of the candidate's H1B visa – is our consent or concurrence required at all?

Answer #6
No. If your employment contract with the beneficiary was “at-will” the beneficiary may leave your employ at any time provided he/she gives the required notice as indicated in the employment agreement. Additionally, at no time during the transfer is your consent or concurrence required.


Question #7 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
If we sponsor an employee and pay the associated legal fees and USCIS filing fees, can we consider those payments in their employment review/raise evaluation in subsequent years? I am trying to treat all employees fairly, and it seems odd that the company is required to pay legal fees for one employee, but not another who may have legal fees associated with divorce, child custody, or other legal matters which would also affect their ability to work.

Answer #7
I understand your frustrations; however, the H-1B nonimmigrant program is a program designed to allow foreign professional workers to work temporarily in the United States to help boost the economy and keep U.S. businesses at the top in terms of work productivity, developing new products, etc. When you speak of using the associated legal fees when determining employment reviews/raise evaluations, it is not fair to the H-1B worker who has been sponsored by you for the sole purpose of working for your company to then take those fees and hold them against them. To my knowledge, it is unlawful and the Department of Labor (DOL) would not look favorably over this issue. It may seem odd that you are required to pay for the foreign worker's legal fees and associated filing fees, but that is just an aspect of the United States Citizenship and Immigration Service (USCIS) and DOL’s partnership in the H-1B nonimmigrant program.

The other employees you are referring to in regards to divorce, child custody issues, those are personal in nature. Although they may affect an individual's ability to work, an employer has no legal obligation to pay those fees as those personal related issues and fees should not play into your employment reviews/raise evaluations. A job is a job and when performance reviews/raise evaluations are conducted, they should be based entirely on the ability/productivity and experience of the worker.


Question #8 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
No new H1B application will be approved, as per the new guidelines provided USCIS on Jan 08, 2010 memorandum – for 3rd Party Consulting company. No new H1B extension/stamping will be approved, as per the new guidelines provided USCIS on Jan 08, 2010 memorandum – for 3rd Party Consulting company. If an employee has H1B approved or extension approved, and if he/she comes back to US from a vacation or from an emergency, he/she would be deported back to his/her home country from the Port of Entry (PoE) – for 3rd Party Consulting company. How is my company to remain in business?

Answer #8
Yes, the memo has made it more difficult to petition for 3rd party consultants; however, it is not impossible. We cannot generalize and say that no case will be approved; no extension will be approved; because you cannot generalize with the USCIS, you must look at each case and the evidence presented on a case-by-case basis. You are not required to put forth all of the evidence listed in the memo, but a majority of it to illustrate that there is a valid employer-employee relationship, and that you maintain CONTROL over the beneficiary, not actual control, but the RIGHT TO CONTROL.

The USCIS adjudicators are to take the memo as guidance, and are to adjudicate the petition based on a totality of the circumstances, not narrowly like you have mentioned. They are to take all of the evidence presented and determine whether a valid employer-employee relationship exists, and based on that determination, either approve or deny the non-immigrant visa petition.

When traveling, there is not much that we can do, as the Officers of Customs and Border Protection (CBP) have developed their own interpretation of the memo released on January 8, 2010. If a 3rd party consultant MUST travel, we would recommend that they have the following: at least two month’s worth of paystubs, a copy of the approved H-1B petition, an employment verification letter, approval notice, and any other documentation that would demonstrate compliance with the laws governing the H-1B program and the establishment of a bona fide job opportunity.


Question #9 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
I recently got a new project in Washington DC. I will be working at a client in DC downtown and staying in northern Virginia. I have Pennsylvania labor filed on my H1B petition. Do I need to file a new labor in DC? If so can you guide me and my employer in filing labor in a new state?

Answer #9
According to the regulations governing the H-1B program, when you move to a new location outside of the geographical location listed on the original certified LCA, a new LCA as well as an amended petition must be filed with the USCIS. In summary, since your location change would be considered a "material change" in your previously approved employment, you would need to file a new LCA as well as the amended petition to stay within the regulations.


Question #10 – Employment Based Immigration – Green Card – LABOR/PERM
It seems like it’s taking a lot longer to conduct recruitment prior to filing the Labor application, what’s the issue?

Answer #10
As of January 1, 2010 the Department of Labor (DOL) federalized the process for obtaining Prevailing wage requests, which is the first step in the Labor process before recruitment can be conducted. We normally could obtain a prevailing wage request directly from the specific state workforce agency within a few days to a week. In addition to federalizing the process, the DOL made the process for obtaining the prevailing wages by electronic means as well as by requesting a prevailing wage through the U.S .mail. At this time, it is taking approximately 45-60 days to obtain a prevailing wage determination from the DOL. The determinations are issued on a first come, first serve basis.


MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, July 23, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Filing an H-1B nonimmigrant cap/transfer/extension/amended visa petition after the release of the “MEMO”

January 28, 2010

In support of an H-1B petition, a petitioner must not only establish that the beneficiary is coming to the United States temporarily to work in a specialty occupation but the petitioner must also satisfy the requirement of being a U.S. employer by establishing that a valid employer-employee relationship exists between the U.S. employer and the beneficiary throughout the requested H-1B validity period. The Petitioner must also file an LCA specific to EACH location where the beneficiary will be working.

“United States employer,” is defined at C.F.R. 214.2(h)(4)(ii) as follows:
United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

(1) Engages a person to work in the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.

In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer has a sufficient level of control over the employee. Level of control meaning right to control, which is different from actual control. An employer may have the right to control the beneficiary’s job related duties and yet not exercise actual control over each function performed by that beneficiary. The employer-employee relationship hinges on the RIGHT to control the beneficiary.

Evidence which helps to establish the employer-employee relationship between Petitioner and Beneficiary:

INITIAL PETITION
• A complete itinerary of services or engagements that specifies the dates of each service or engagement, the name and addresses of the actual employer, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
• Copy of signed employment agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
• Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
• Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are place at the third party worksite, the petitioner will continue to have the right to control its employees;
• Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary, or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
• Copy of position description or any other documentation that describes the skills required to perform the job offered, the scours of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employees benefits, and the tax treatment of the beneficiary in relation to the petitioner;
• Description of the performance review process; and or
• Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain


EXTENSION PETITIONS

• Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs, etc) for the period of the previously approved H-1B status;
• Copies of the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1B status;
• Copy of time sheets during the period of previously approved H-1B status;
• Copy of prior years’ work schedules;
• Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period ( copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc) NOTE: the materials must clearly substantiate the author and date created;
• copy of dated performance review(s); and/or
• copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, (e.g. , the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of its own). Such a limited exception will be made solely on a case-by-case basis.


Request for Evidence (RFE)
If Requests for Evidence (RFE) are made, such RFEs, must specifically state (1) what is at issue (e.g., the petitioner has failed to establish through evidence that a valid employer-employee relationship exists) and (2) be tailored to request specific types of evidence from the petitioner that go directly to what USCIS deems as deficient. The RFE should neither require that a specific type of evidence be provided, unless provided for by regulations (e.g., an itinerary of service dates and locations), nor should it request information that has already been provided in the petition. Officers should state what element the petitioner has failed to establish and provide examples of documentation that could be provided to establish H-1B eligibility.


WHAT IS ULTIMATELY REQUIRED?
Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being “benched” without pay between assignments.

Source: AILA InfoNet Doc. No. 10011363 (Posted 1/13/2010)

If you have any questions relating to the information summarized above, please do not hesitate to contact our office to schedule a consultation.

Future Rule Tightening by the U.S. Department of Labor

August 14, 2008

The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.

Expect More PERM Audits
The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.

As of July 15th, the DOL was working on cases that have not been audited with a priority date of April 2008. Currently, there is only one Audit queue. The DOL does not maintain separate queues for random and targeted audits. As of Mid July, DOL was working on audited cases with Priority dates of March 2007.

H-1B LCAs will be scrutinized more closely
The DOL also stated that Labor Condition Applications (LCAs) associated with the H-1B filing process will be scrutinized more closely beginning this fall. Currently LCAs are approved within a matter of seconds once they are applied for through the DOL’s online application system. The DOL expects such applications to take up to 7 days to be reviewed and certified by the DOL. If alternate wage surveys are submitted with the LCAs, the certification times would be even longer. Therefore, the days of starting a new H-1B petition in a couple of days pursuant to a change in employer will soon come to an end.

UPDATE: USCIS Offers Premium Processing for I-140s on a Limited Basis

June 12, 2008

As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.

In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).

Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.

Click here to view the USCIS Update on I-140 Premium Processing.

Maintaining an H1B Audit (Public Access) File

June 11, 2008

The H-1B , is an employment based non-immigrant visa, that enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies.

The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional. A U.S. employer using the program must also guarantee that: (1) the foreign professional will not adversely affect the working conditions of U.S. colleagues; (2) U.S. colleagues will be given notice of the foreign professional’s presence among them; (3) there is no strike or lockout at the worksite; and (4) the position requires a professional in a specialty occupation and the intended employee has the required qualifications. Employers who fail to comply with the Department of Labor (“DOL”) regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.

To ensure that U.S. and foreign workers are protected, each employer must maintain an audit/public access file for each H-1B applicant it has acquired. It is important to keep the public access file separate from all other employee and business files. The employer is required to have a public inspection file and DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker is/was being paid the wage stated in the application. Public access files must be maintained for a period of one year beyond the last date on which any H-1B nonimmigrant was employed under the labor condition application.

Although H-1B audits are not that common, the H-1B program is currently undergoing scrutiny. Therefore, it is extremely important to maintain an organized H-1B audit/public access file, so you may expedite the audit and possibly save the company from any potential liability due to mingled or misplaced files. Audits may occur due to former employee complaints, randomly or on a profile basis. For a random audit, the DOL simply selects an employer to audit. However, a profile audit occurs when the DOL discovers a significant variation of offenses in a particular industry/area and the employer is part of the same industry/area, or the DOL has a profile for violators and the employer meets the profile. Evidently, an employer should expect an audit at some point because it is the DOL’s intent to eventually audit everyone who files LCAs.

To avoid potential costly fines, payment of back wages and/or disbarment from participation in key immigration programs, it is our recommendation that employers keep the following documents within each H-1B applicant’s separate public access file:

• A copy of each certified labor condition application (Form ETA 9035 or Form ETA 9035E) including all pages and cover sheet;
• Documentation which provides the wage rate to be paid to the non-immigrant (ex. Employment offer/agreement);
• A clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation sought (ex. Statement/evidence of employer’s pay-system or scale);
• Documentation which the employer used to establish the “prevailing wage” for the occupation sought (ex. Printout from http://www.flcdatacenter.com);
• A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;
• If employer is H-1B dependent and/or a willful violator, and indicates on the LCA that only “exempt” H-1B non-immigrants will be employed, a list of such “exempt” H-1B non-immigrants should be within the file;
• If employer is H-1B dependent and/or a willful violator, and indicates such on the LCA, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers, or copies of documents establishing this information should be within the file

H-1B Petitions: When Should You as the Employer Amend or Terminate Them?

May 30, 2008

H-1B petitions filed on behalf of employees are generally filed for a specific job that has specific job duties. When there is a material change in the terms of an H-1B beneficiary’s employment, the petitioning employer is legally required to file a new H-1B petition or amend the original petition.

What is a material change?

A material change is a change to the H-1B beneficiary’s job that substantially changes the terms and conditions of the H-1B employee’s job. The following are examples of material changes to a job for H-1B purposes:

1. A change in the employment location;
2. A change in the job duties (i.e., when the employee’s job duties change from one specialty occupation to another);
3. A change in the hours of employment (i.e., the employee was originally hired on a full time basis but now is working on a part-time basis); and
4. A change of employer (i.e., a merger or acquisition where the new employer holds a different Federal Identification Number).

When should an H-1B Amendment be filed?

Although there is no specific time to file for a new or amended petition, it is recommended that the amendment be completed before the material change in the job occurs.

What should employers do when they terminate H-1B employees?

Employers have many obligations when they terminate H1-B employees. An employer must always notify the USCIS of a material change. Therefore, the employer must inform the USCIS in writing that the H-1B employee does not work for it with a letter explaining the change. This way the USCIS has a chance to revoke the petition. A notification to the USCIS is crucial in ending the H-1B employers’ obligations such as paying the employee their wages. A bona fide termination occurs when the H-1B employer tells the USCIS of the termination, the H-1B petition has been cancelled, and that the employer provides the employee payment for return back to his or her home country. The USCIS states that they should be immediately notified of an H-1B employee’s termination so that they can make the necessary adjustments and changes to the employees H-1B status. In order for it to be considered a bona fide termination there must be notification of this termination in the manner stated above. The bona fide termination actually occurs on the date the employer informs the USCIS not the date the USCIS revokes the employees H-1B status.