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).

PLEASE DETAILED INFORMATION, PLEASE CLICK HERE...

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.