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'DEFINING PARTNERSHIP OF 21ST CENTURY': E VISA POSSIBILITY FOR INDIAN CITIZENS? By: Michael Phulwani, Esq., David Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

On June 5, 2014, it was announced that India's new Prime Minister, Narendra Modi, will have a bilateral meeting with the U.S. President Barack Obama in the last week of September this year. Among other things, it is a great opportunity for both leaders to discuss the long pending Bilateral Investment Treaty (BIT) between both the countries.

While investment treaty between India and the U.S. would provide important protections to U.S. investors in India, it will also certainly provide a great opportunity to the Indian businessmen to invest and establish businesses in the United States using E nonimmigrant visa. Both Washington and New Delhi want to embrace the idea of BIT but so far they have not been able to reach a common ground and gather political support.

A foreign national may qualify for an E visa depending on the type of agreement [Bilateral Investment Treaty (BIT), Free Trade Agreement (FTA), or Treaty of Friendship, Commerce and Navigation (FCN)] it has with the United States. Most recently, the United States has signed either BITs or FTAs.

A BIT is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state. This type of investment is called foreign direct investment (FDI). BITs acts as a tool in protecting the FDI in a volatile market. Especially, they protect foreign investments in light of the risks that foreign investors face in many parts of the world, including cancellation of concessions, leases, or licences; expropriation of shares; windfall, royalty, and other taxes; exchange rate risks; prohibition on the repatriation of profits; political or court interference; environmental regulation and remediation responsibility; land rights issues; riots; and protests, to name but a few. Faced with such risks, and given the likelihood that local courts and laws may not provide a speedy, effective and unbiased means of resolving investment disputes, BITs provide foreign investors with an additional level of protection under international law.

There are two types of E visas: Treaty Trader visa (E-1) and Treaty Investor Visa (E-2). The E-1 visa is applicable to a treaty national entering the U.S. solely to carry on substantial trade, which is international in scope and principally between the U.S. and the foreign state. For E-1 visa, the treaty national must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify. The E-2 visa applies to a treaty national [or an entity owned by the treaty national(s)] to develop and direct the operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital. For E-2 visa, if the applicant is not the principal investor, s/he must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity.

There is no bright line test of what would constitute a "substantial" amount of capital. The U.S. State Department acknowledges that the costs of investing in a business can vary dramatically, depending on the nature of the business: many millions to buy an automobile factory; and only a relatively small sum to set up a consulting firm. Further, the general rule requires that over 50% of the total volume of the international trade[i] conducted by the treaty trader regardless of location must be between the United States and the treaty country of the alien's nationality.

For a business to qualify for Treaty Investor visa, apart from being a national of the treaty country, at least 50 percent of the business must be owned by person(s) with the treaty country's nationality. Additionally, besides the requirement of investment being substantial, the investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.

E visas have certain advantages over other nonimmigrant visas. Unlike the L-1 visa, the E visa categories do not require the setting up of a branch, subsidiary or parent in the U.S. of a foreign entity. The E visa category also has less government regulations compared to the H-1B visa category. There is no prevailing wage requirement, labor certification attestation, and posting and public access file requirements. Neither there is a cap on the initial grant of E visas nor cap on E visa extensions. Both E-1 and E-2 visa holders are initially granted stay of two years with the possibility of unlimited extensions. All E nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. Further, Treaty traders/investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age and can get work authorization. More so, their nationalities need not be the same as the treaty investor or employee. Note that since E visas are not dual intent visas, an alien cannot pursue permanent residency (green card) application while on E nonimmigrant status.

Although United States has entered into treaties with some of the India's neighboring states (Pakistan, Sri Lanka[ii] and Bangladesh[iii]), at present, India does not have an FCN treaty, BIT or equivalent treaty with the U.S. In past, India and the United States have engaged in BIT negotiations to enhance trade relations and investment flows. This treaty under negotiation, which has been languishing since 2008, aims to protect and promote investments and guarantee international minimum standards in the treatment of foreign investments.

While on the one hand an investment treaty between India and the U.S. would provide important protections to U.S. investors from arbitrary, discriminatory or confiscatory measures, and would be enforceable by independent international arbitration. On the other hand, such a treaty could also help facilitate additional investment in infrastructure and other priorities in India where investment is badly needed.

Both Washington and New Delhi want to embrace the idea of BIT but so far they have not been able to reach a common ground and gather political support. The enthusiasm of the United States in entering a BIT with India can be sensed through a letter sent by the members Senate India Caucus, U.S. Senate, urging the President Barack Obama to expedite the ongoing discussions about the treaty between the U.S. and India. The letter, in pertinent part, states that: "Many countries have already recognized and acted upon the incredible economic opportunities India presents. India has completed investment agreements with 80 countries including all major European nations, ASEAN, Japan and South Korea. In order to overcome the competitive disadvantage already facing American companies in the Indian marketplace, it is imperative that the United States move forward quickly to negotiate and conclude this treaty..."

While bilateral trade and investment between the United States and India has quadrupled since 2006-now at more than $100 billion, with U.S. investment in India at $28 billion-the Obama administration and U.S. businesses argue that the trade partnership has not reached its potential and that India's trade policies are, in fact, sometimes discriminatory to U.S. companies. Washington has urged the Indian government to break down business barriers by changing its intellectual property laws, especially as they relate to pharmaceuticals; address inconsistent tax treatment; requirements that companies buy local content, such as in the telecommunications industry and renewable energy sector; and limitations on foreign direct investments. While the Indian government has already undertaken a number of policy changes to begin addressing the trade and investment partnership with the U.S., New Delhi is reluctant to the idea of investor-state arbitration[iv] and has been pressing Washington to give its local courts the jurisdiction over the cases that may arise.

The reason for India's reluctance to the Investor-State arbitration emanates from its past experience. India has signed 82 BITs, of which 72 are in force. Among the countries with which India has concluded BITs are Australia, Belgium, Cyprus, France, Germany, Indonesia, Korea, Kuwait, Malaysia, Mauritius, Netherlands, Qatar, Russia, Switzerland, and the United Kingdom. India has recently seen a surge of investment arbitration cases brought against it because of the investor-state arbitration clause in the existing BITs. Even though India appears to have been a party to few unreported investment arbitration cases, India did not experience its first publicized loss in an investor-state arbitration until White Industries Australia Ltd. v. India in November 2011. The arbitration tribunal in White Industries held in favor of an Australian mining company and awarded it US$5 million in damages as the company had suffered long delays in the Indian courts enforcing a commercial arbitral award against an Indian state-owned company. Additionally, the invalidation of 2G license auctions that were conducted in 2008 by the Indian Supreme Court in 2012 led to additional claims against the Indian government under the already existing BITs. As a result, the Indian government has expressed strong dissatisfaction with the investor-state dispute resolution provisions of its BITs, and former India's Finance Minister approved the creation of a permanent body to advise on the renegotiation of India's existing BITs, with the apparent purpose of either weakening or removing investor-state dispute resolution provisions from India's BITs.

There are differences between the United States and India in the initial bargaining positions regarding BIT, but few show any philosophical difference that cannot be overcome. For what President Obama calls one of the "defining partnerships of the 21^st century," letting the economic side of things drift is unacceptable. Political leaders on both sides will need to push for an expansive vision of the possible cooperation between the two countries. By midcentury, the United States and India are forecast to be the second- and third-largest economies in the world. Now is the time for these two economic giants to prioritize their bilateral economic relationship in order to rise to the occasion. While no doubt such a treaty would provide protection to the investments and open new avenues of investment for both countries, it would bestow immigration benefits (such as E visa) to its nationals, which in turn will further benefit the economy of both countries.

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[i] There must be an actual exchange, in a meaningful sense, of qualifying commodities such as goods, moneys, or services to create transactions considered trade.

[ii] Only Treaty Investor (E-2) classification

[iii] Only Treaty Investor (E-2) classification

[iv] Countries concluding investment treaties almost always negotiate a dispute settlement provision. This generally includes conditional or unconditional consent to international arbitration, usually at the International Centre for Settlement of Investment Disputes (ICSID).

Why is President Obama not pushing the Comprehensive Immigration Reform ...

Deportations | Obama has deported about 2 million people

OPTIONS FOR H-1B LOTTERY LOSERS - PART 3

BETTER LATE THEN NEVER: USCIS SAYS THAT SOME H-4 NONIMMIGRANTS WILL BE ABLE TO WORK VERY SOON. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

The spouses of some H-1B visa holders could receive work authorization in the U.S., according to a proposed rule change announced by the Department of Homeland Security (DHS). This change, finds its genesis in President Obama's initiative to strengthen entrepreneurship and retain talent. Deputy Secretary Alejandro Mayorkas stated: "These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent."

The rule change will amend existing regulations to allow H-4 dependent spouses of certain H-1B visaholders to request employment authorization. Under current regulations, DHS does not allow employment authorization to H-4 dependents. The proposed changes allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has started the green card process through employment.

The proposed changes address visa rules that have caused difficulties for the spouses of skilled immigrants (mainly from China, India and the Philippines), who are working on H-1B visas. Spouses, mainly wives, often have skills and education, but are not authorized to work in the U.S., causing their careers to languish. The change is important given the backlogs for green cards. Spouses of highly-skilled workers with H-1B visas will now be able to seek employment during long waits.

In addition, and in furtherance of the same policy, another new rule was announced that will expand the current list of evidentiary criteria for employment-based preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This new rule harmonizes the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories. The two proposed changes are important, but are not a long-term fix. Congress needs to act immediately and to pass legislation to improve the immigration system and to create an unfettered pathway for foreign entrepreneurs and innovators.

For more information about work authorization for H-4 visaholders or about CIR, please feel free to contact the Immigration and Nationality Lawyers at the Nachman Phulwani Zimovcak (NPZ) Law Group at info@visaserve.com or by calling our offices at 201-670-0006 (x107).

H-4's may be able to work

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USCIS REACHES FY 2015 H-1B CAP

THE H-1B VISA DILEMMA: MARCH MADNESS COULD BRING H-1B SADNESS. BY: David H. Nachman, Esq., Michael Phulwani, Esq. and Rabindra Singh, Esq.

The use of the term "lottery" is very deceptive in the context of a discussion about the H-1B professional and specialty occupation work visa. We often receive inquiries from potential H-1B beneficiaries who contact our offices asking us: "Where should I buy my H-1B Visa 2015 lottery ticket?" or "I want to get myself into the 2015 H-1B Visa lottery - How do I do that?" Reference to the "H-1B Lottery" is really a bit of a misnomer . . .

To shed some light here, the H-1B visa petition process is nothing like buying a lottery ticket. In fact, the preparation of the H-1B visa is just like the preparation of any other nonimmigrant work visa petition. The difference is that there is a specific "cap" or "limitation" on the number of H-1B nonimmigrant visas that are made available by the government each fiscal year. If the number of H-1B petitions that are submitted exceeds the limitations then the H-1B petitions that are submitted are aggregated and submitted for adjudication using a process called "random selection".

The process of the H-1Bs being aggregated and then submitted to "random selection" was officially referred to by the USCOS as the H-1B "Random Selection" process. However, in several press releases and numerous articles about H-1B visas, this process was referred to as a "Lottery" or "Visa Lottery". These words have come to be recognized as "terms-of-the-art" over time. With this understanding about what the "Lottery" terminology really means, we can now discuss how the Lottery process really works. This information is quite helpful to H-1B Employer and Employee hopefuls so that they can understand the true probability of H-1B success assuming that a very significant number of H-1B visas are submitted on March 31st 2014 for the April 1st 2014 H-1B visa filing deadline.

When the economy was strong, in 2008, there was an H-1B visa lottery for the fiscal year 2009 H-1B visa quota. On or about April 1st 2008, the USCIS received approximately 163,000 H-1B nonimmigrant professional and specialty occupation petitions for a cap-subject number of about 85,000 (the 65,000 regular U.S. Bachelor's equivalency H-1B quota and the 20,000 U.S. Masters Degree quota).

The USCIS monitored the intake of the H-1B petitions and proceeded to separate the petitions into two (2) lots. One lot was for H-1Bs with a U.S. Master's Degree. The second lot was for H-1Bs with the U.S. equivalency of a Bachelor's Degree. Each petition was tagged with a special identifying number. The USCIS then ran a random algorithm on the submissions. First, a random selection process was conducted for the U.S. Masters Degree quota petitions. Those petitions chosen were placed into the processing cue. If the case was being premium processed, a receipt notice was issued within a week or two. If the case was not being premium processed, it could take many weeks and sometimes months before the employer would get a receipt.

If the U.S. Master's petitions were not selected for the U.S. Masters Degree quota then they were "spilled-over" into the general quota pool. After the U.S. equivalency of the H-1B general pool was created, another random algorithm was run on that pool of H-1B visas in order to determine which H-1B visas would be designated under the general quota cap. Those petitions that were chosen in the random selection/lottery for the U.S. Bachelor equivalency H-1B pool were placed into the processing cue. As with the U.S. Master's Degree pool, if the case was being premium processed, a receipt notice was issued within a week or two. If the case was not being premium processed, it could take many weeks and sometimes months before the employer would get a receipt. According to the USCIS, all of the selected petitions were cued for processing (and I suppose that we just have to take their word for it).

Assuming that "history repeats itself", the following is the way that the visa lottery for the 2014-2015 H-1B visas will work for H-1B visas sent to the USCIS during the initial five (5) business days (i.e. from Tuesday, April 1st, 2014 until Monday, April 7th, 2014) following the April 1st 2014 H-1B nonimmigrant visa deadline:

Step 1: First, the USCIS will receive H-1B petitions and label them and identify each of the petitions with a unique identifier. This is the number or character that would be used for the random selection process. Once the H-1B is labeled, the USCIS will group the overall petitions into two pools. One pool will be the U.S. Master's Degree quota and the other pool will be the equivalency of a U.S. Bachelor's Degree.

Step 2: If there are more than 20,000 petitions received in the U.S. Masters Degree quota, then USCIS will conduct a computer generated random selection process or lottery taking into account all of the H-1B U.S. Master's Degree petitions.

Step 3: All of the H-1B petitions filed under U.S. Master's Degree quota that were NOT selected in the lottery or random selection will be placed into the pool of petitions received as U.S. Bachelor's equivalency quota H-1B visa petitions.

Step 4: If the total number of petitions in the combined pool (consisting of the U.S. Master's Degree spillover and the U.S. Bachelor's Equivalency pool) are over 65,000 petitions (number to be adjusted for Singapore and Chile H-1B1 Free Trade Agreement Visas), which is the cap limit, then a computer generated random selection process or lottery will be conducted on the pool to identify petitions that qualify for consideration under the U.S. Bachelor's equivalency quota cap limit.

Step 5: USCIS will send the list of all selected petitions to the service centers or process the cases in one service center. The USCIS service center(s) will proceed with H-1B nonimmigrant visa processing. If the case is being premium processed, a receipt notice should issue within a week or two. If the case is not being premium processed, it could take many weeks and sometimes months for the employer to get a receipt.

Step 6: All the H-1B nonimmigrant visa petitions that were not selected in the random selection process or lottery will be returned to the employers or the legal representatives along with the fees. Employers and Employees have been warned . . . if there were duplicate filings for a same prospective H-1B employee by the same H-1B employer (identified by the same Employer Identification Number) then the fees will be returned.

Step 7: USCIS will inform all selected petition holders of their case number for tracking purposes during processing. This number will be assigned when the receipt is issued. As previously mentioned, as many of our clients are eager to know if their cases have been chosen for processing in the lottery, the NPZ Law Group encourages the use of the premium processing procedure to ensure that a receipt notice is provided by the USCIS as quickly as possible.

Nachman Phulwani Zimovcak (NPZ) Law Group, P.C.'s Immigration Update (3/15/2015)

Dear Readers:

Immigrants make cities more economically competitive. Specifically, immigrants (1) contribute to a dynamic labor force and spur economic growth, (2) are more likely to start businesses and create jobs in their cities, (3) are critical to helping cities counteract population decline thereby keeping economies vibrant and strong, (4) make cities more attractive by raising housing values; and (5) contribute to a talented workforce through higher levels of education. Immigrant business owners contribute to communities across America. Recent reports show the importance of entrepreneurship and innovation to local economies, and recent trends show the ways in which local leaders encourage an inclusive environment through integration initiatives.

The tide is turning . . . business leaders across the Midwest overwhelmingly back comprehensive immigration reform. A recent report about comprehensive immigration reform finds that 65 percent of Midwest business leaders strongly support the Senate's (S.744) immigration reform bill passed in June 2013. The support for reform is bipartisan, and the preference is for legislation that addresses many components of immigration reform rather than addressing individual components in a piecemeal approach. Specifically, 75 percent of Republican business leaders support the Senate's comprehensive immigration reform bill.

Improvements to the EB-5 Investor Visa Program can strengthen its use and better accomplish its central goal of aiding regional economic development. By aligning similar goals in mutually beneficial arrangements among regional centers and economic development agencies (EDAs), such organizations can capitalize on their often complementary resources in order to leverage more funding and reduce risk for investors. Immigrants and their children help grow our economy. Despite an aging population and slower population growth, the U.S. has a healthier demographic outlook compared with other western countries thanks to immigration.

Citizenship is an important component of successful immigrant integration. There is an important citizenship premium that should be factored into economic calculations of immigration reform. According to one recent report: "the bump to a country's economy that arises after immigrants become citizens. This bump comes in the form of higher wages and more tax revenue collected from naturalized citizens, all of which spurs more overall economic activity." If immigration reform does not include a reasonable path to citizenship, then the U.S. is "leaving dollars on the table" due to the economic benefits that citizenship presents.

For more information about the way that immigration to the U.S. helps to build our nation's economic infrastructure, please feel free to contact any of the immigration and nationality lawyers and/or attorneys at info@visaserve.com or feel free to call is at 201-670-0006 (x107).

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IMMIGRATION-RELATED AUDITS: WHAT EMPLOYERS NEED TO KNOW. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

There are three potential "hot spots" for audits and investigations for the government related to the immigration and nationality laws. The first has to do with the documentation that the employer is required to maintain in connection with the H-1B nonimmigrant visas. The second area of potential audit concerns the employer's obligations under the Immigration Reform and Control Act of 1986 ("IRCA") [Pub. L. No. 99-603, 100 Stat. 3359] (known to HR Professionals as the "I-9 Process"). The third, and one more recent, area of audit surrounds the new Labor Certification Application Program called Program Electronic Review Management ("PERM"). Each of the foregoing government programs anticipates compliance through "audit". Even a rudimentary understanding of the complex documentary requirements for each of these programs can help an employer to avoid potential liability.

First, the U.S. Department of Labor ("DOL") regulations that govern the maintenance of professional and specialty foreign national worker require an organization to develop and produce certain documents concerning the wages and the working conditions of an H-1B nonimmigrant. These documents are collectively referred to as the Public Access File ("PAF"). The regulations require the PAF documents to be maintained either at the H-1B worksite or at the employer's principal of business immediately after the employer files the Labor Condition Application ("LCA") with the DOL. The employer is well-situated to ensure that they maintain PAF documents and be sure that they continue to pay the H-1B nonimmigrant the specified wage on the LCA. Under the American Competitiveness and Workplace Improvement Act ("ACWIA"), an H-1B nonimmigrant must be offered the same company benefits as those offered to "similarly situated" non-H-1B employees in the organization.

DOL audits can arise as a result of a complaint by a disgruntled employee or as a result of a randomly conducted investigation. Upon a DOL audit (normally undertaken by the Wage and Hour Division) an employer may be found not to be in compliance with (1) paying the H-1B nonimmigrant the specified wage (which pursuant to the H-1B Reform Act of 2004 became effective on March 8, 2005 must be 100% of the federally mandated prevailing wage); and/or (2) maintaining PAF documents; and/or (3) providing the H-1B nonimmigrant with the same benefits as those provided to all other "similarly situated" non-H-1B employees. Any failure to comply with DOL requirements can result in an employer being liable to pay back wages to an H-1B employee, debarment from the use of the H-1B program and/or other potential civil and/or criminal liabilities. Also, if the employer is a government contractor, the failure to comply may result in the debarment from the government contacts.

A second potential audit area for audit and investigation of an employer concerns employment verification and employer sanction law (referred to as the "Immigration Reform and Control Act of 1986" or "IRCA"). As every HR Professional knows, IRCA is an integral aspect of every hire. Under IRCA, every employer is required to properly verify the eligibility of an employee to work in the U.S. on the Form I-9. The I-9 Form is a deceptively simple document. The I-9 Form is only one page in length but it continues to raise issues about proper preparation and retention.

Since the U.S. Department of Homeland Security's ("DHS") absorption of the Legacy-INS, the Immigration and Customs Enforcement Division ("ICE") has been charged with worksite inspections and audits of I-9 documents. The "good news" for employers is that the number of I-9 inspections has been on the decline. The "bad news" for employers is that ICE Officers are not inclined to be lenient and educate employers about their responsibilities but are more likely to impose sanctions.

Given the present focus on "security" and "identity" in the workplace, it is likely that ICE Officials will be more active in their investigations in the future. ICE is not required to wait for a specific lead. The investigative authorities of the DHS have implemented a "General Administrative Plan" (the "Plan"). The Plan identifies employers from a national database and it targets specific industries that have developed a reputation for hiring unauthorized workers (e.g., restaurant, meat-packing, commercial cleaning, textile and garment). The Plan also provides for "random" audits. For example, due to national security concerns, great efforts continue to be placed on identifying those individuals who have access to the nation's "critical infrastructures" such as airports, wastewater facilities, and highways.

Finally, the third area of interest for employers from an audit perspective is the new PERM process for Labor Certifications Applications pertaining to employment-based immigrant visas (the "Green Card"). After pending for over two (2) years, in December 2004, the PERM regulations became "Final" and on March 28^th, 2005, the old Labor Certification Application process was replaced by PERM. While PERM promises faster green card processing, the application process is much more complex. The DOL seems to be sending a message that it is easier to audit the employer as opposed to processing an Application.

The new PERM process requires an employer to obtain a Prevailing Wage Determination (the "PWD"). Effective January 4, 2010, employers can obtain PWD by completing and submitting ETA Form 9141 to the DOL's National Prevailing Wage and Helpdesk Center (NPWHC). Once the PWD is obtained, an employer must undertake a rigid "recruitment process". Recruitment consists of placing a job order with the SWA and placing two (2) Sunday advertisements in an appropriate newspaper. The recruitment process needs to be completed more than 30 days and less than 180 days prior to the filing of the PERM Application.

PERM requires meticulous preparation and a thorough understanding of the Regulations. The PERM process is analogous to the administrative process that surrounds the filing of a U.S. tax return. When the return is filed, the filer makes representations, declarations, and attestations about annual income and expenses. The filer does not submit evidence about annual income and expenses. Such information is only provided if the Internal Revenue Service ("IRS") sends the filer a notice for an audit. The PERM program is similar. A PERM Application is filed by making attestations on the new DOL Form 9089. The Form 9089 is submitted to the DOL. DOL can either certify the Form without receiving documentation, or DOL can send out an audit letter.

The new PERM Regulations state that the DOL can request an audit of any pending Labor Certification Application for cause or in the DOL's discretion. In the event that a prospective employer is noticed for an audit, the employer will receive an audit letter that lists the documents that will have to be submitted. The audit letter shall set a date that is thirty (30) days from the date of the letter for submission of the additional documents and shall advise the employer that the Labor Certification Application will be denied if the information is not received in a timely manner. If the employer does not respond, the PERM Labor Certification Application will be denied.

It appears clearly to be the case that immigration-related programs that are undertaken by employers may be subject to either directed and/or random government audits from the DHS and/or the DOL. Failure to adequately comply with government regulations can result in penalties. The employer's familiarity with the intricacies of the auditing and compliance are likely to save a considerable amount of both time and money.

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DAVID NACHMAN'S TOP TEN REASONS WHY WILLING PROSPECTIVE H-1B EMPLOYERS SHOULD DO H-1B VISAS FOR WILLING H-1B CANDIDATES By David H. Nachman, Esq., Managing Attorney | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

Every year at about this time, U.S. Employers approach the Immigration and Nationality Lawyers and Immigration Attorneys at the NPZ Law Group often asking us for the reasons why they should consider doing the H-1B visa. Here are the TOP TEN REASONS we give to them. David Letterman, eat your heart out . . .

10. By doing an H-1B visa sooner, rather than, later, the prospective H-1B employer and employee allow themselves time in the event that the H-1B is not approved in the current H-1B cycle. Some employers delay the process and have prospective H-1B employees remain in OPT status. While, in some cases, this may be good for tax purposes, it decreases the chance of getting an H-1B because the prospective H-1B employer and employee miss-out on a "second bite at the apple" by not being able to make a second (and sometime third) H-1B cycle petition.

9. H-1B Employers and H-1B Employees do NOT displace U.S. workers. The LCA Form 9035 requires that the H-1B employer represent that the federally mandated prevailing wages are being paid to the prospective H-1B employee so as NOT to displace any U.S. workers. The U.S. employer is also required to make other attestations in connection with the LCA to protect the wages and working conditions of U.S. employees.

8. The H-1B process is only a "temporary (nonimmigrant) work visa" and it does NOT require the prospective H-1B employer and the prospective H-1B employee from proving that there are "no able, willing and qualified" workers who can take the job. Many employers who do NOT understand the H-1B process misunderstand the LCA and the H-1B petition process and mix-it-up with the PERM Labor Certification process.

7. By sponsoring an H-1B nonimmigrant, employers can save additional fees that they would ordinarily might have to pay to recruiters and/or for additional training if the individual, who may be working for them, is presently working in OPT and is not sponsored for the H-1B. Also, "recruitment fees" can be avoided since it may be easier for the prospective H-1B employer and employee to find a candidate "directly" who requires an H-1B.

6. H-1B visa petitions are filed on April 1^st (during H-1B season) for an October 1^st start date. This enables H-1B employers who have received approvals of the H-1B, to appropriately plan projects and to coordinate efforts of other staff members and work groups. Also, the H-1B is a "dual intent" visa and allows flexibility so that the U.S. employer can apply for the green card for the H-1B nonimmigrant so that there is no prejudice to him/her with regard to a conflict in the underlying intent required.

5. The H-1B visa petition is relatively routine to prepare for the skilled immigration lawyer or immigration attorney. The process is easy to explain to both the H-1B employer and the H-1B employee. While there are many nuances in the H-1B process, the H-1B petition process can be completed in a matter of days assuming, that there are no delays in the return from the DOL of the LCA that is filed through an electronic process called iCert.

4. H-1B visas can be done on a "part-time" basis and need not necessarily be done on a full-time basis. Many prospective H-1B employers are under the mistaken impression that the H-1B nonimmigrant visa MUST be for a full-time position with the prospective H-1B employer. In fact, part-time H-1Bs are quite common. In addition to "part-time" H-1B visas, a prospective H-1B employee can arrange to have "concurrent" H-1B visas and can work for several H-1B employers at the same time. Concurrent H-1Bs are frequently used by IT professionals and specialty engineers who have very specific skillsets that are valuable to many U.S. organizations simultaneously.

3. If the H-1B visa petition is not accepted under the "cap" (in a scenario where more H-1B visas are submitted for the 65,000 Bachelors equivalency and 20,000 U.S. Master's H-1B slots) the case will be returned to the prospective H-1B employer and the H-1B government filing fees will be refunded. If the case is retuned to the prospective H-1B employer, then the prospective H-1B employee and the employer will have an opportunity to confer with their legal counsel (their immigration lawyer) to determine what H-1B alternatives may be available. For example, Canadians may be eligible to apply for TN classification and Australians may be eligible for E-3 visas. Additional H-1B visa alternatives are also available.

2. The payment by the U.S. employer of the DOL Training Fee of $1,500.00 (for U.S. employers with more then 25 employees) and $750.00 (for U.S. employers with less then 25 employees) makes a contribution to a special fund that is a Grant Fund administered by the U.S. Department of Labor. The Grant is for the education of U.S. workers to learn Hi-tech skills that are now being rendered by H-1B workers in the U.S.

1. Bringing H-1B Professionals to the U.S. allows the U.S. to be globally competitive and to bring highly-skilled professional and specialty talent to the U.S. that would or might go to another country. The H-1B process was created to allow the U.S. to retain valuable talent that is trained at U.S. academic institutions and who we allow to work for one full-year with U.S. employers in Optional Practical Training (OPT) (often for more time if they can get a STEM OPT). What a waste not to retain this talent?!?

White Collar Exemptions: Do Employers Need To Pay Overtime Compensation To H-1B Workers? [Part III] By: Michael Phulwani, Esq., David Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

To claim learned professional exemption under the FLSA, the employee must work in a profession where specialized academic training is a standard prerequisite for entrance into the profession. FLSA regulations specifically state that the best evidence for meeting this requirement is having the appropriate academic degree. However, the exemption may be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. Since the minimum requirement for the H-1B visa is a baccalaureate or higher degree or equivalent (both for the offered job and the prospective employee) in all probabilities this would satisfy the FLSA requirement - that the employee must work in a profession where specialized academic training is a standard prerequisite for entrance into the profession - required to claim the learned professional exemption.

Determining whether an H-1B employee is exempt from the overtime and other exemptions under the FLSA becomes murky if, and when, an employee works in an occupation that does not necessarily (but could) require an advanced specialized academic degree. For instance, and as detailed in the FLSA regulations, paralegals and legal assistants may not qualify as exempt learned professionals because an advanced specialized academic degree is not a standard prerequisite for entry into the field. Although many paralegals possess a general four-year advanced degree, many specialized paralegal programs are two-year associate degree programs from a community college or from an equivalent institution.

However, the learned professional exemption is available for paralegals who possess advanced specialized degrees in other professional fields and apply advanced knowledge to serve in that field in the performance of their duties. For example, if a law firm hires an engineer as a paralegal to provide expert advice on product liability cases or to assist with patent matters, that engineer would qualify for exempt status.

On the other hand, consider the case of an individual who holds a law degree from a university in a foreign country and is working on H-1B visa with an immigration law firm. The law degree, an advanced degree, makes him/her eligible for an H-1B visa. Other paralegals without advanced degrees working at the immigration law firm would be considered non-exempt employees; whereas, the foreign paralegal with law degree working on H-1B visa would be considered exempt because he satisfies the advanced specialized degree requirement under the FLSA. However, because the other paralegals are treated as non-exempt and the employer attested on the LCA that the foreign paralegal (with the law degree on the H-1B visa) will be offered working conditions[i] on the same basis, and in accordance with the same criteria, as offered to the U.S. workers, the foreign paralegal may end-up either working regular 40 hours per week or getting compensated for overtime work.

Based on the foregoing, it could be concluded that employers generally are not required to pay overtime compensation to its employees working on an H-1B visa unless the H-1B worker is working in an occupation that traditionally does not require the specialized academic training as a standard prerequisite for entry into the profession. Because the H-1B visa requires that both the offered position and prospective employee should hold baccalaureate or higher degree or equivalent, the H-1B employee would usually qualify for FLSA's learned professional exemption.

The learned professional exemption requires that the employee must work in a profession where specialized academic training is a standard prerequisite for entrance into the profession. Since the FLSA regulations state that having an appropriate degree or its equivalent through work experience and a intellectual instruction satisfies the FLSA's specialized academic training requirement to claim the exemption as learned professional, and similarly having a related degree or its equivalent (both for the job offered and prospective employee) is also the threshold requirement for an H-1B visa, in all probabilities, qualifying for H-1B visa give the employee "exempt" status under the FLSA. In conclusion, employers still need to be cautious when employing workers on H-1B visa in occupations which traditionally do not require specialized academic training as a standard prerequisite for entry into the profession or they find themselves facing DOL challenges or challenges from the workers themselves about the need for the employer to have been paying overtime compensation. 

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[1] This article does not cover rights and benefits of public agency employees under FLSA.

[2] This is the third and final part of the three part article. This part will build on the Part II discussion (why H-1B employees are usually treated as an "exempt employee" under the FLSA) and will also examine situations involving H-1B employees working in occupation(s) that usually do not require an advanced specialized degree.

[3] Working conditions include matters such as hours, shifts, vacation periods, and benefits such as seniority-based preferences for training programs and work schedules.

White Collar Exemptions: Do Employers Need to Pay Overtime Compensation to H-1B Workers? [Part II] By: Michael Phulwani, Esq., David Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

In the context of an H-1B visa, it is the definition of "professional" employees that may pose a challenge for employers in deciding whether the employee qualifies for an exemption or not pursuant to the FLSA. There are two types of "exempt" professional employees under the FLSA: learned professionals and creative professionals. To qualify for the learned professionalemployee exemption, all of the following tests must be met: (1) The employee must be compensated on a salary or fee basis at a rate not less than $455 per week ($23,660.00 annually); (2) The employee's primary duty[iii] must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; (3) The advanced knowledge must be in a field of science or learning; and (4) The advanced knowledge must be 'customarily' acquired by a prolonged course of specialized intellectual instruction.

The FLSA regulations define "work requiring advanced knowledge" as work that is predominantly intellectual in character and that includes work requiring the consistent exercise of discretion and judgment. Professional work is distinguished from work involving routine mental, manual, mechanical, or physical work. A professional employee generally uses advanced knowledge to analyze, interpret, or make deductions from various facts or circumstances.

The FLSA regulation provides examples of "exempt" status as it relates to the fields of science or learning. Those include: law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy. In addition, the regulation specifies that there could be other occupations that have a recognized professional status and are distinguishable from the "mechanical arts" or "skilled trades" where the knowledge could be of a fairly advanced type, but is not in a field of science or learning.

The learned professional exemption is restricted to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best evidence of meeting this requirement is having the appropriate academic degree. However, the word "customarily" alludes the possibility that the exemption may be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction.

The FLSA exemption is not available for occupations that customarily may be performed with only general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.

In the majority of the cases, H-1B employee(s) would generally be "exempt" under the FLSA unless the employee is working in an occupation that requires only general knowledge acquired by an academic degree in any field academic. Having said that, it is important to understand why the H-1B worker would typically not qualify for benefits under the FLSA. The threshold requirement for the H-1B visa is that the employer must demonstrate both: (1) that the position requires a professional in a specialty occupation; and (2) that the intended employee has the required qualifications. Offered position requiring a baccalaureate or higher degree or equivalent typically qualifies for the H-1B visa. Further, to qualify for the H-1B visa, the employee must have been conferred a baccalaureate or higher degree in the specialized field or have its equivalence in work experience. A combination of education and experience is treated as sufficient when the prospective employee holds some formal college-level education in addition to experience in the specialized field. Conversely, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.

Because the prerequisite for obtaining an H-1B visa is that both the offered position and the prospective employee should possess a baccalaureate or higher degree or equivalent,employees working on H-1B visas would typically qualify for the FLSA's learned professional exemption. Consider, for instance, the case of a computer professional working on an H-1B visa in the Information Technology (IT) industry. As specifically stated in the FLSA regulations, H-1B computer professionals earning $27.63 per hour ($57,470.4 annually) would qualify for the exemption of overtime pay compensation. It is important to note that even those making less than that amount would qualify for exempt status under the learned professional exemption.

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[i] This article does not cover rights and benefits of public agency employees under FLSA.

[ii] This is the second part of the three part article. This part will explore the question of "why H-1B employees are usually treated as an "exempt employee" under the FLSA". Finally, Part III will build on the Part II discussion and will also examine situations involving H-1B employees working in occupation(s) that usually do not require an advanced specialized academic degree.

[iii] According to the FLSA, the term "primary duty" means the principle, main, major, or most important duty that an employee performs. Determination of an employee's primary duty must be based upon all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.

ABCs OF H-1Bs (THIS IS PART II OF AN VIII PART SERIES): HOW MUCH PROSPECTIVE H-1B EMPLOYERS NEED TO PAY TO H-1B EMPLOYEES AND WHY THE PREVAILING WAGE IS IMPORTANT. By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

Employers who seek to hire an H-1B nonimmigrant in a specialty occupation must first make a filing with the Department of Labor (DOL) and obtain a Labor Condition Application (LCA). The LCA, among other things, must specify the number of workers sought, the occupational classification in which the H-1B will be employed, and the wage rate and conditions under which the proposed H-1B nonimmigrant will be employed. In addition, the employer must attest that it is offering, and will offer, during the period of H-1B employment the greater of: (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; OR (2) the prevailing wage level for the occupational classification in the area of employment.

If required to pay the prevailing wage, the wage must be 100% of the prevailing wage. The prevailing wage is determined for the occupational classification in the area of intended employment and must be determined as of the time of the filing of the LCA[i]. The regulations require that the prevailing wage be based upon the best information available. An employer that fails to pay wages as required is liable for back wages equal to the difference between the amount that should have been paid and the amount that was actually paid.

The prevailing wage is determined by a Collective Bargaining Agreement (CBA) if one exists that pertains to the occupation at the place of intended employment. If the job offer is for an occupation not covered by a CBA and the employer does not choose to provide a survey or request the use of a current wage determination in the area, the wage component of the Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) survey[ii] should be used to determine the prevailing wage for the prevailing wage in connection with an employer’s job offer.

Although employers are not required to keep and maintain position descriptions, regulations require an employer to keep and maintain a copy of the documentation the employer used to establish the ‘prevailing wage’ for the occupation for which the H-1B nonimmigrant is sought or the underlying individual wage data relied upon to determine the prevailing wage. This information may have to be made available to the public (if requested) or it may have to be made available to the DOL upon request or in connection with an enforcement action.

The regulations governing the H-1B nonimmigrant visa require the Administrator, Wage and Hour Division (WHD)[iii], to determine whether an employer has the proper documentation to support its wage attestation. Where the documentation is nonexistent or insufficient to determine the prevailing wage, or where the employer has been unable to demonstrate that the prevailing wage determined by an alternate source is in accordance with the regulatory criteria, the Administrator may contact the Employment and Training Administration (ETA)[iv], a part of DOL, to get the prevailing wage.

Once ETA provides the prevailing wage, the Administrator is bound to use this determination as the basis for determining violations and for computing back wages, if such wages are found to be owed by an H-1B employer. It is important to highlight that the regulation is permissive, and the ETA’s determination is merely an option that the Administrator can use in its investigation(s). This option is rarely used by Administrators during investigations. If the employer fails to support, through proper documentation, how it arrived at the prevailing wage level, the Administrator can use the employer’s Letter of Support and I-129 forms submitted to the United States and Citizenship Services (USCIS) for the approval of H-1B petition to determine whether the employee was appropriately classified at the specific wage level. Thus, the alternative of not keeping documents used in the determination of appropriate wage level is to maintain the compatibility between the LCA and H-1B petition.

The nature of the job offer, the area of intended employment, and job duties for workers that are similarly employed are the relevant factors used in determining a prevailing wage rate.  In determining the nature of the job offer, the first thing to consider is the requirements of the employer’s job offer. Area of intended employment means the area within normal commuting distance of the place (address) of intended employment.  Regulations define similarly employed as substantially comparable jobs in the occupational category in the area of intended employment[v]. The required work and education and/or experience for a job impact the determination of the prevailing wage level. 

ETA provides guidance for determining the proper wage level for a position. Level I wage rates are assigned to jobs offers for beginning or entry-level employees who have only a basic level of understanding of the occupation. Level I employees perform routine tasks that often requires limited exercise of judgment. The guidance also states that Level II wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation.  They perform moderately complex tasks that require limited judgment.

Level III wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge.  Frequently, key words in the job title can be used as indicators that an employer’s job offer is for an experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior programmer), or ‘head’ (head nurse) would be indicators that a Level III wage should be considered. Further, the Level IV wage level applies to highly-competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Level IV employees generally hold management and/or supervisory roles and responsibilities.

To better understand how the wage levels apply, consider an example of job position that requires either two years or more of experience or a Masters’ degree or higher. Taking into consideration the above-mentioned guidelines, the employer should use either a Level II or higher prevailing wage rate.

In addition, it is important to mention that if an entry level job has additional requirements or duties beyond that of those ordinarily required; the employer should refrain from using a Level I prevailing wage.

To summarize, and based on the foregoing, an employer hiring an H-1B worker is required to pay the higher of actual wage or prevailing wage. If paying the prevailing wage, the wage must be 100% of the prevailing wage. Further, the determination of prevailing wage depends on whether the occupation is covered by CBA or not. If the job offer is for an occupation not covered by a CBA and the employer does not choose to provide a survey or request use of a current wage determination in the area, the wage component of the OES survey should be used to determine the prevailing wage. Moreover, the employer is required to keep a copy of the documents used in determining the appropriate wage level. If the employer fails to provide such documents, the WHD Administrator may either contact the ETA to get the prevailing wage for the offered position OR refer to the Letter of Support and/or I-129 forms submitted to the USCIS with the H-1B petition to make a determination. Thus, the alternative of not keeping documents used in the determination of appropriate wage level is to maintain the compatibility between the LCA and the H-1B petition.

In conclusion, a prospective H-1B employer should exercise caution in offering a wage to the prospective H-1B employees that should be the greater of either the actual or prevailing wage. If paying prevailing wage, the employer should take into consideration the nature of the job offer, the area of intended employment, and jobs duties for the proffered position in selecting the appropriate OES wage level, or else they may find themselves facing WHD challenges with regard to paying back wages.

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[i] In computing the prevailing wage for a job opportunity in an occupational classification in an area of intended employment for an employee of: an institution of higher education; an affiliated or related nonprofit entity; a nonprofit research organization; or a governmental research organization; the prevailing wage level should take into account the wage levels of employees only at such institutions and organizations found in the area of intended employment.

[ii] The OES survey is a semi-annual survey of approximately 200,000 non-farm business establishments conducted by the Bureau of Labor Statistics (BLS), headquartered in Washington, DC with six regional offices and one office in each state.

[iii] The WHD, an agency of DOL, enforces Federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the Fair Labor Standards Act.

[iv] The ETA administers federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. These services are primarily provided through state and local workforce development systems.

[v] If no such workers are employed by employers other than the employer applicant in the area of intended employment, it means: jobs requiring a substantially similar level of skill within the area of intended employment; OR substantially comparable jobs in the occupational category as employers outside of the area of intended employment if there are no substantially comparable jobs in the area of intended employment.

ABCs OF H-1Bs (THIS IS PART I OF AN VIII PART SERIES):WHAT PROSPECTIVE H-1B EMPLOYERS AND H-1B EMPLOYEES NEED TO KNOW IN ORDER TO GET H-1Bs FILED AND APPROVED IN APRIL 2014. By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

There are Only 58,200 Regular H-1B Visas: Do Not Delay - It's Now Time to Strategize for the H-1B Season.

The current annual cap on the H-1B category is 65,000. All H-1B nonimmigrants are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program specifically designed for the citizens of Chile and Singapore. Unused numbers in H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1Bs visas are granted each year except 20,000 additional H-1B visas which are restricted to individuals who have received master's degrees or higher from U.S colleges or universities.

U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a "lottery") to select a sufficient number of petitions. Given that, in FY 2014, the H-1B cap was met by the first week of the filing period, it is imperative that employers file all new quota-subject H-1B petitions on March 31, 2014. Employers should immediately begin identifying persons for whom H-1B sponsorship will be needed. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA). Thus, strategically strategizing the filing of H-1B Petition is a key to hiring an H-1B employee for the financial year beginning on October 1, 2014.

The H-1B Employer Must Exercise Sufficient Level of "Control" Over the Prospective H-1B Employee.

In order for the H-1B petition to be approved by United States Citizenship and Immigration Services (USCIS), Department of Homeland's agency responsible for adjudication of H-1B petitions, petitioning employer must establish that employer-employee relationship exists and will continue to exist with the employee throughout the duration of the requested H-1B validity period. Hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. 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 exercises a sufficient level of "control" over the prospective H-1B employee.

Thus, the prospective H-1B petitioner organization must be able to establish that it has the "right to control" when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job and USCIS considers various factors in making such a determination (with no one of the following factors being decisive with regard to the issue of "control").

Both the Proffered Position and Prospective H-1B Employee Must Qualify for the H-1B.

Not only the prospective employee but both the proffered position and prospective employee should qualify for the H-1B visa. For a proffered position to qualify for H-1B visa, it must be a "specialty occupation". "Specialty occupation" is an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The H-1B regulations further requires that a position also meet one of the following criteria, in order to qualify as a specialty occupation: 1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; 2) The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; 3) The employer normally requires a degree or its equivalent for the position; or 4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Therefore, reading the law and regulations together, in order to qualify as a "specialty occupation," a proffered position must 1) require theoretical and practical application of a body of highly specialized knowledge, 2) necessitate a bachelor's degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation, and 3) meet one of the four alternative criteria listed above.

For a prospective employee to qualify for the proffered H-1B position, regulations specify that s/he should have either one of the following: (1) Full state licensure to practice in the occupation (if required); (2) Completion of the degree required for the occupation; or (3) progressively responsible work experience in the specialty equivalent to the completion of such degree. Thus, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.

The H-1B Filing Fee depends upon the Type and Size of H-1B Employer.

Besides legal fee, the employer needs to pay the USCIS filing fee. Remember there is no flat fee that every employer is required to pay. The amount of H-1B filing fee depends on the size and type of employer. All employers are required to pay the base filing fee of $325.00 for the H-1B petition. Additionally, pursuant to the American Competitiveness and Workforce Improvement Act (ACWIA), employers are required to pay an additional fee (commonly referred as ACWIA fee) of $750 or $1500 unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement.

Sponsoring employer is required to pay a fee of $750.00 if it employs 25 or fewer full-time equivalent employee. In all other cases, the employers need to pay $1500.00. Employers such as institution of higher education; nonprofit organization or entity related to, or affiliated with an institution of higher education; nonprofit research organization or governmental research organization, etc. are exempt from paying the ACWIA fee. Additionally, employers, either seeking initial approval of H-1B or seeking approval to employ H-1B nonimmigrant working for a different employer, must pay $500 Fraud Prevention and Detection fee as mandated by the H-1B Visa Reform Act of 2004.

Those H-1B employers required to submit the $500.00 Fraud Prevention and Detection fee are also required to submit $2,000.00 fee mandated by Public Law 111-230 if petitioners employ 50 or more employees in the United States; more than 50% of those employees are in H-1B or L nonimmigrant status; petition is filed before October 1, 2014. Further, either the employer or employee can pay an optional premium processing fee of $1,225.00 to expedite the adjudication of petition. Thus, the H-1B filing fee depends upon the size and type of employer and can range from $825.00 to $5,550.00.

Be Aware of the Salary and Costs to Be Paid by Prospective H-1B Employer.

Prospective employer must obtain a certification from Department of Labor ("DOL") that it has filed an LCA in the occupational specialty. The employer attests on the LCA that H-1B nonimmigrant worker will be paid 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 occupational classification in the area of intended employment. Thus, Congress has been careful to build in safeguards to the H-1B program to ensure that H-1B foreign professionals do not undercut wages paid to the comparable U.S. workers. Additionally, employers are required to pay the costs for the petition process.

The Employer's obligation to pay H-1B workers the required wages begins on the date on which the worker "enters into employment with the employer." The H-1B worker is considered to "enter into employment" when he first makes himself available to work or otherwise comes under the control of the employer. Alternatively, even if the worker has not yet "entered into employment," where the worker is present in the U.S. on the date of the approval of the H-1B petition, the employer shall pay to the worker the required wage beginning 60 days after the date the worker becomes eligible to work for the employer. The H-1B worker becomes eligible to work for employer on the date set forth in the approved H-1B petition filed by the employer.

An employer must continue to pay an H-1B employee who is not working due to a nonproductive status at the direction of the employer (e.g., benching because of lack of work, lack of a permit or license). Thus, employer is liable for nonproductive time as well as productive time once employee becomes eligible for work. Furthermore, if the H-1B employee is terminated prior to the end of the period of admission, the employer is liable for "the reasonable costs of return transportation of the alien abroad

Note the Key Compliance Issues: Posting Notice of LCA & Maintaining Public Access files - Employers Beware of the H-1B Audit and H-1B Site Visit.

Notice of the LCA must be posted, or where there is a union it must be given to the union before filing the LCA. The notice may be the LCA itself or a document of sufficient size and visibility that indicates: (1) that H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational classification; (4) the wages offered; (5) the period of employment; (6) the location(s) at which the H-1Bs will be employed; and (7) that the LCA is available for public inspection. The notice should state where complaints may be filed. Notice must be posted "in a least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed" and the notice "shall be posted on or within 30 days before the date the labor condition application is filed and shall remain posted for a total of 10 days.

Notice may be posted in areas where wage and hour and OSHA notices are posted. An employer may also provide electronic notice to employees in the "occupational classification" for which H-1Bs are sought, through any means it normally communicates with employees including a home page, electronic bulletin board or e-mail. If accomplished through e-mail it need only be sent once; other electronic forms (e.g., home page) should be "posted" for 10 days. Notices must be posted at each worksite including ones not originally contemplated at the time of filing but which are within the area of intended employment listed on the LCA.

Additionally, an employer must maintain a public access file accessible to interested and aggrieved parties. The public access file must be available at either the employer's principal place of business or at the worksite. An interested party is one that has "notified the DOL of his or her/its interest or concern in the administrator's determination."

The public access file must be available within one day after the LCA is filed with all supporting documentation including: A copy of the completed LCA; Documentation which provides the wage rate to be paid; A full, clear explanation of the system used to set the "actual wage"; A copy of the documentation used to establish the prevailing wage; Copy of the notice given to the union/employees; and A summary of the benefits offered to U.S. workers in the same occupational classification, and if there are differences, a statement as to how differentiation in benefits is made (without divulging proprietary information).

This article is Part I in a series of VIII that will provide helpful and basic information to employers considering the use of the H-1B for an employee. For any additional H-1B information or for information about options for avoiding the H-1B cap, please feel free to contact the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. at info@visaserve.com or by calling our offices at 201-670-0006 (x107). Our highly qualified immigration lawyers and immigration attorneys stand ready to assist employers with the H-1B nonimmigrant visa process.