SINCE it is practically “H-1B season” once again, this is an appropriate time to discuss the H-1B visa applications. The USCIS will start accepting new H-1B quota- based applications on April 1, 2016 for the fiscal year 2017. For these applications, the earliest start work date is October 1, 2016.
Under Sec. 101(a)(15)(H)(i)(b), an alien can be a beneficiary of a H-1B petition if he is coming temporarily to the United States to perform services in a specialty occupation. “Specialty occupation” requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the US labor market, e.g., accountants, engineers, and scientists.
In evaluating the appropriateness of the position or job offer, the criteria used, among others, is whether or not the position requires a precise and specific course of study which relates directly and closely to the position. For instance, a job offer as a journalist is a perfect fit for someone with a bachelor’s degree in Journalism but not for someone who has a degree in Music or Engineering.
There is an annual numerical limit “cap” of 65,000 visas per fiscal year. The cap does not include the first 20,000 petitions filed for alien beneficiaries with a US master’s or higher degree. H-1B petitions can be filed six (6) months in advance of the requested start date (the earliest start date is October 1, 2016 as mentioned above). For this year, petitions seeking an October 1, 2016 start date can only be filed no earlier than April 1, 2016.
Before an H-1B application can be filed, a labor condition application or attestation (LCA) for H-1B purposes should be filed with the US Department of Labor through its iCert system. A copy of the certified Department of Labor LCA (Form ETA 9035) must be attached to the H-1B application. Keep in the mind the Department of Labor’s own processing time in the approval and issuance of the LCA to make sure that copy of the LCA is available when you need to file the H-1B application. It usually takes the Department of Labor seven (7) working days to review the LAC application. The
The H-1B visa status valid for the period of employment indicated on the Labor Condition Application (LCA) for up to three (3) years. It can be extended for another three (3) years. Once the six (6) year limit is reach, the foreign national must leave the US for one year before a new H-1B application can be filed.
If you are contemplating of filing any immigrant or non-immigration application, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.
Under the LCA, the employer must attest, among others, that:
1. The H-IB beneficiary will be paid the required wages which are at least the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupational classification in the area of intended employment.
2. The employment of the H-1B beneficiary will not adversely affect the working conditions of workers similarly employed and that he will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to similarly employed U.S. workers.
3. On the date the application is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the named occupation at the place of employment.
4. As of the date of filing, notice of the labor condition application has been or will be provided to workers employed in the named occupation. Notice of the application shall be provided to workers through the bargaining representative, or where there is no such bargaining representative, notice of the filing shall be provided either through physical posting in conspicuous locations where the beneficiary will be employed, or through electronic notification to employees in the occupational classification for which the aliens are sought.
After filing the LCA, the H-1B petition must be filed, together with the necessary documentation such as diploma, credentials evaluations, among others.
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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.
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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
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