Lawsuit Filed Against H-1B Visa Lottery Moves Ahead

By Peek & Toland on November 30, 2016

If you want to get a visa to bring a skilled worker over from abroad, you will face entering an H-1B visa lottery.

If you fail to secure a visa, most employers simply enter again next time. However, two employers, and two workers who were not selected in the cap have filed a lawsuit against the H-1B lottery.

Their lawsuit was filed as a class action, a procedure that allows a number of individuals to file one lawsuit.

On September 23, a federal judge in the case rejected the arguments put forward by United States Citizenship and Immigration Services (USCIS). He indicated the case will move forward.

H1-B Visa Lottery lawsuit proceeds

Those opposed to the H-1B visa lottery claim it is unfair. They say some individuals and companies are filing multiple petitions for the same potential worker, or persuading several companies to apply for an H-1B visa for the same candidate.

The litigants claim some companies are applying year after year and failing to win in the H-1B lottery. Others are getting a visa on the first attempt. This can result in some individuals applying year after year and not obtaining an H-1B number and others receiving it on the first attempt. A number of issues resulted in demands to eliminate the lottery system.

The lawsuit is filed in the U.S. District Court for the District of Oregon. It claims the lottery system runs counter to statutory law and has numerous inherent problems, reported The National Law Review.

The lawsuit argues for a change in the system. It says USCIS should provide priority dates to H-1Bs and process the visas in the order applications are received.

Alternative Approaches to the H-1B Visa Lottery

Alternative approaches to the H1-B visa lottery include:

  • Increasing the H-1B cap.
  • Creating an H-1B exemption for workers from STEM fields.
  • Linking the number of H-1B visas to demand in the U.S. economy.
  • Exempting those with a master’s degree from the cap. At present, an additional 20,000 spots are made available every year for those who hold advanced degrees.

You can read more about specialty occupation visas on our website. You can usually qualify to enter the H-1B lottery if the job requires a bachelor’s degree or higher. There are a number of qualification. These include proving the complex nature of the job by highlighting parallel positions that require a degree or by pointing to other similar positions in the firm that required a degree.

Fields that require highly specialized knowledge include architecture, IT skills.  Engineering, mathematics, medicine, law, academia and biotechnology are other areas.

If you want to find out more about H1-B visas or need help applying for one, please call our Austin immigration lawyers at (512) 474-4445.

Posted in Immigration, Visas

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H-1B Visa Season Started with Just 65,000 Available

By Peek & Toland on May 26, 2016

Applying for an H-1B visa is literally a lottery. On April 1, U.S. Citizenship and Immigration Services (USCIS) announced it would begin accepting H-1B petitions for FY 2017. By April 7, it announced it had received enough applications to reach the statutory cap of 65,000 visas for 2017.

USCIS said in a press release it had also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, which is also known as the master’s cap.

Only 65.000 H1-B Visas were available for 2017

Why You Would Apply for an H1-B Visa

The release stated USCIS received more than 236,000 visa petitions during the brief filing period. Just two days later, on April 9, USCIS selected enough applications to meet the caps by using a “computer-generated random selection process,” – in other words, a lottery. USCIS said it would reject and return all of the petitions it did not select along with their filing fees, with the exception of duplicate filings.

The speed with which the cap is exceeded highlights the importance of getting your application ready for the cap season, in plenty of time. There are important prerequisites that are needed first. For instance, a prospective employer in the U.S must file a Labor Conditional Application (LCA) with the Department of Labor before filing an H-1B petition. An LCA can take as long as three weeks to adjudicate.

Before you submit an application, it’s important to know what the visa is.

What is An H-1B Visa?

Skilled and qualified aliens who hold a Bachelor’s Degree can live and work in the United States by obtaining an H-1B visa in their specified field. The fields in question relate to ‘specialty occupations’ and could include research, defense projects, computer science occupations, doctors, engineers or architects. Find out more by clicking this link.

What is the Master’s Cap?

If you hold advanced degrees from a U.S. institution (master’s degree or higher), you have a greater opportunity of being selected. However, only the first 20,000 petitions received for those holding advanced degrees were exempted from the cap. Petitions received above the 20,000 counted toward the regular Bachelor’s cap.

What About Petitions Filed with Premium Processing?

If your H-1B petition was filed with premium processing, your employer and your attorney will know whether or not you have been successful, no later than May 16. USCIS will only notify the attorney you have on file and the employer who is petitioning for the application.

Applying for H-1B visas is often a headache, and the federal government is coming under pressure from business leaders to make more available. Our Austin-based immigration attorneys can smooth the process and make sure you are in compliance with all the conditions before you apply for a visa. If you need help with applying for an H-1B visa, please contact our office to talk to an experienced immigration attorney about how to proceed.

Posted in Visas

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Citizenship and Immigration Services Reaches Statutory Cap for H-1B Visas

By Peek & Toland on May 24, 2016

It didn’t take USCIS long to reach the statutory cap for H-1B visas. The season opened on April 1 and the statutory cap of 65,000 visas had been reached by April 7.

U.S. Citizenship and Immigration Services stated it had received enough H-1B petitions which included regular as well as advanced degree cases to reach the statutory cap for the financial year 2017 (10/1/2016 through 9/30/2017).

U.S. Citizenship and Immigration Services reaches the H1-B Visa cap

U.S. Citizenship and Immigration Services reaches the H1-B Visa cap

H-1B visas are for specialty occupation workers. The number of petitions has increased steadily in recent years as the country has come out of recession and more businesses have sought to bring in skilled workers from overseas.

What Happens Post Visa Cap?

The cap was met during the first week that employers could file their petitions for 2017. Over the next few weeks, U.S. Citizenship and Immigration Services will hold a lottery to find out which petitions will be chosen and which ones will be rejected.

The fact the cap has already been reached for FY 2017 means it’s not too early to be making preparations for FY 2018. Petitions may be submitted no earlier than April 1, 2017, for employees who would be hired on October 1, 2017.

To find out the preparations you should make for the H-1B cap season, follow this link.

Here are some of the important things you will need:

1 A foreign credential evaluation

If you are hoping to hire anyone with an education from an overseas institution, you will need a credential evaluation. The H-1B visa classification requires workers you are considering hiring from overseas to demonstrate that they have obtained the equivalent of a U.S. bachelor’s degree.

2 A Labor Conditional Application

A Labor Conditional Application (LCA) must be filed with the U.S. Department of Labor. This has to be obtained before you can file the H-1B petition with USCIS. You should be aware that it can take as long as three weeks to process an LCA.

3 Completed Salary Negotiations

There is a requirement under the LCA that the employer in the United States certifies that the overseas H-1B applicant is to be paid the prevailing wage, as set out by the Department of Labor. Serious delays can occur in the course of salary negotiations between the prospective employee and the U.S. employer.

At Peek & Toland , we are well aware of the difficulties inherent in visa applications and the delays and pitfalls of dealing with federal agencies. Our attorneys are experienced in dealing with all of the potential setbacks and are ready to answer any questions you may have about visas. To arrange a consultation, call us at (512) 474-4445.


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