Proposed Changes to the H-1B Legal Landscape are Coming. Are You Ready?

By Peek & Toland on December 18, 2018

H-1B Cap season is quickly approaching; the visas are capped at 85,000 issued per year (65,000 initially allocated and 20,000 cap exempt advanced degree numbers). The Department of Homeland Security has proposed rule changes that may affect you.

In 2017 the Trump Administration issued the “Buy American Hire American” executive order, which greatly changed the immigration landscape. As a result, employment-based immigration processes have encountered increased scrutiny. For example, one section of the order instructed The Department of Homeland Security to, “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest paid petition beneficiaries.” The recently proposed order strives to do that.

The proposed change comes in two parts:

  • An online registration system would be put into place. H-1B Petitioners would create an online account prior to filing the petitions and only those selected accounts would submit petitions to USCIS.
  • The “cap” process would be reversed. In an attempt to increase the number of advanced applicants, all applicants (including those marked as “Masters Cap Exempt”) would compete for the initial 65,000 H-1B’s. Once all initial numbers are used, then the remaining advanced degree holders would compete for the remaining 20,000 slots.

The first change would require petitioning companies and applicants to provide basic information (i.e. employer name, address, EIN, etc. as well as beneficiary name, country of citizenship, degree held, etc.). It would also require employers to confirm their intent to file an H-1B application for that specific beneficiary. A separate registration would need to be filed for each beneficiary. Government spokespersons have said this would save companies money by ensuring they did not have to pay filing fees until the petition was selected. The secondary change, per USCIS Spokesman Michael Bars, “would help ensure more of the best and brightest workers from around the world come to America under the H-1B program”.

The proposed order is similar to a hotly contested proposed order under the Obama Administration. In 2011 when this similar order was considered the American Immigration Lawyers Association (AILA) responded to The U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services raising their concerns. The general concerns of the association, consisting of over 11,000 immigration attorneys, were:

  • The registration system would create a rush of registrations, creating a false H-1B Demand;
  • The Cost to Benefit assessment was flawed; and
  • This would add an unnecessary layer to an already complicated process.

The government has posted the currently proposed changes on the Federal Register, and is taking comments until January 2, 2019. USCIS has informed the public that they would like to enact this change prior to the FY2020 H-1B Cap season, beginning April 1, 2019.

What does this mean for you as an employer?

While it is unlikely that these changes will be enacted in 2019 due to regulatory requirements, H-1B visas will still be limited to 85,000 and employers will need to be prepared to file as early as possible.

Peek & Toland has a strong team of immigration attorneys, including Partner Jeff Peek and Senior Corporate Immigration Attorney, Maria Pilar Llusá. With over seventeen (17) years of Employment Immigration experience, they are prepared to tackle any issues your company may have with regards to their immigration needs.

Looking for legal help for your H-1B applications?

To help employers get a jump start and be prepared for a successful cap season, our firm will be offering free 30 minute consults to companies with new H-1B cap season needs starting January 3, 2019.

It is important you be prepared and informed of the requirements for the H-1B Cap season. Please contact our offices to schedule your consult today. We look forward to working with you and serving all your immigration needs.

Posted in Citizenship, Immigration, Immigration Reform, Visas

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Trump Backs Sweeping Senate Bill on Immigration

By Peek & Toland on August 8, 2017

Trump Backs Sweeping Senate Bill on Immigration

A new Senate bill on immigration endorsed by President Donald Trump would see the biggest shake-up of the immigration system for five decades.

Trump made an appearance with Republican Sens. Tom Cotton (Ark.) and David Perdue (Ga.) in early August to unveil a modified version of a bill the senators first unveiled in February. The bill would slash legal immigration levels by half and bring in a “merit-based” system that would switch the emphasis away from family ties to job skills when awarding green cards. The bill would also significantly cut the number of visas allocated every year. It would reduce the annual distribution of green cards awarding permanent legal residence to lawful arrivals to just over 500,000 from more than 1 million.

The legislation is in line with Trump’s “America First” initiative which has already seen the president proposing radical changes to the H-1B visa system.

Trump met Cotton and Perdue on two previous occasions at the White House to discuss their legislation titled the Reforming American Immigration for Strong Employment (Raise) Act. The bill claims the present immigration system is flawed and floods the United States with millions of new arrivals who lack skills. It states:

“For over a quarter century, the United States has accepted an average of 1 million immigrants annually — the equivalent of adding the entire state of Montana each year. But when only 1 out of every 15 immigrants arrives in the United States on a skills-based visa, the majority of the remaining immigrants are either low-skill or unskilled.”

The legislation claims this perceived influx of low-skilled labor has undercut the wages of “working immigrants.” It claims wages for Americans who hold high school diplomas only fell by 2 percent since the late 1970s. The salaries of those who never completed school fell by nearly 20 percent over the same period. This collapse in wages threatens to create a “near permanent underclass for whom the American Dream is always just out of reach.”

What the New Senate Bill on Immigration Proposes

The new Senate bill on immigration proposes a number of ways of cutting legal immigration:

1. Target “Chain Migration” to the United States

The RAISE Act would retain immigration preferences for spouses and minor children of U.S. citizens and legal permanent immigrants but eliminate preferences for adult family members and     extended family members of U.S. citizens. These include adult parents of citizens and married adult children of citizens.

2.  A Grading System for New Immigrants

The proposal would set up a grading system for new immigrants to the United States. Prospective green card holders would be judged on their median salary, ability to speak English, advanced degrees, their skills and whether they are able to afford their own health care.

3.  The Elimination of the Diversity Lottery

The bill says the Diversity Lottery is plagued with fraud, has no economic or humanitarian interest, and fails to delivery diversity. The Diversity Lottery is aimed at counties with low rates of immigration to the United States. The RAISE Act would cut the 50,000 visas arbitrarily allocated to this lottery.

4.  Limit the Number of Refugees

The RAISE Act would cut refugees offered permanent residency in the United States to 50,000 per year, in line with a 13-year average.

Trump had met twice previously at the White House with Cotton and Perdue to discuss the details of their legislation, which is titled the Reforming American Immigration for Strong Employment (Raise) Act. Their proposal calls for reductions to family-based immigration programs, cutting off avenues for the siblings and adult children of U.S. citizens and legal permanent residents to apply for green cards. Minor children and spouses would still be able to apply.

According to a June Gallup poll, 35 percent said immigration should be decreased while a similar 38 percent said it should remain at current levels and 24 percent said it should be increased.The President’s endorsement of the bill marks a watershed moment for many groups that have been pushing these proposals for years. However, it faces an uphill battle in the Senate, reports The Hill.

If you are seeking help or advise on an immigration matter please call Peek & Toland at (512) 474-4445.


Posted in Immigration, Visas

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Start Preparing for H-1B Season

By Peek & Toland on October 12, 2016


NEW H-1B CAP SEASON:  Start Preparing Now for 2017 filing.new-h-b-cap-season-start-preparing-now-for-2017-filing

If you are planning to work for a US employer and are considering to apply for an H-1B visa on April 1, 2017, it takes 3-5 months to prepare documentation. So start looking to see if you meet the basic requirements to qualify.

A critical document for the H1-B petition is the Labor Condition Application (LCA), which involves determining the required wage according to the specifications of the Department of Labor or through recognized compensation surveys. Methods to determine the prevailing wage is a strategic decision that should be made by the employer and the attorney. Preparation and filing of the LCA takes time and requires specific filing fees to process.

Also, keep in mind that this type of visa is capped, which means that there are only 65,000 visas available per fiscal year.

Here at Peek and Toland, we will take care of walking you though the whole process and handle the filing. Schedule a consult with one of our bilingual and experienced immigration lawyers to find out more.

NUEVA TEMPORADA DE CUOTA VISADOS DE TRABAJO H-1B: Comiencen a prepararse ahora para el 2017.

Si usted está pensando en solicitar un visado H-1B a través del patrocinio de un empleador en los Estados Unidos en abril del 2017, tenga en mente que la preparación de los documentos requeridos toma de 3 a 5 meses. Así que empiece a investigar si califica para este tipo de visa.

Un documento esencial para la petición de la H1-B es la Aplicación de Condición Laboral (LAC), la cual requiere determinar el salario requerido según el Departamento de Labor o a través de encuestas de compensación. La manera más adecuada para determinar el salario prevaleciente es estratégicamente dependiendo en el caso. La preparación y presentación de LAC toma tiempo y requiere de cuotas específicas del gobierno para procesar.

También tengan en mente que este tipo de visa tiene límite en cantidad de visas disponibles, solo otorgan 65,000 por año.

Aquí en Peek en Toland nos encargaremos de guiarle a través del proceso e inclusive del envío de los documentos. Haga una cita con uno de nuestros abogados bilingües y con experiencia en el área de inmigración para informarse bien sobre el proceso.

Posted in Visas

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