Attorney In Immigration
Posts tagged 1b Petition
Labor Condition Application: An overview
VisaPro.com
Jul 24th
The Labor Condition Application, or LCA, is a prerequisite to H-1B approval. The LCA, Form-9035, contains basic information about the proposed H-1B employment such as rate of pay, period of employment, and work location. It also contains four standard attestations or promises that the employer must make. The employer must document compliance with the LCA requirements in a public access file.
Filing the LCA
An H-1B petitioning employer must file the LCA on the ETA-9035E electronically over the Internet at www.lca.doleta.gov, or if the petitioner has a “physical disability or lack of access to the Internet†that prevents the employer from filing the form electronically, the employer can file the Form ETA-9035 directly with the DOL. However, please note that the employer must first obtain an approval from DOL to send the LCAs by mail. The LCA must be certified by the DOL before the H-1B petition may be submitted to USCIS.
A single LCA may be filed for up to 999 workers in up to two locations. Each LCA is limited to one occupation with specified job duties. If the employer places an H-1B nonimmigrant outside the areas of employment listed on the LCA, the employer must consider whether to file a new LCA and an amended I-129 petition with the USCIS.
Attestations made by employer in LCA
By signing and filing the LCA, an employer makes four attestations or promises. The employer attests:
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It is paying (and will continue to pay) the H-1B employee wages which are at least the actual wages paid to others with similar experience and qualifications for the specific job; or the prevailing wage for the occupation in the area of employment is based on the best information available | |
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It will provide working conditions for the H-1B employee that will not adversely affect the working conditions of workers similarly employed in the area. Working conditions commonly refer to matters including hours, shifts, vacation periods, and fringe benefits | |
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There is no strike or labor dispute at the place of employment | |
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It has provided notice of this filing to the bargaining representative (if any); or if there is no such bargaining representative, it has posted notice of filing in at least two conspicuous locations at the place of employment for a period of 10 business days | |
Public Disclosure/Public Access File
The employer must make available at its offices for public examination a copy of the LCA and necessary supporting documentation regarding the H-1B worker and other similarly situated employees. Specifically, the employer must create and maintain a public access file to document compliance in each H-1B case. The public access file must include:
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Copy of the LCA (with employer’s original signature and cover pages) | |
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Documentation of the wage to be paid to the H-1B employee (offer letter or other) | |
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Explanation of system used to set the actual waget | |
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Copy of prevailing wage determination from state employment security agency or description of survey or other source used | |
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Copy of notice to union (if applicable) or postings | |
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Summary of benefits plan offered to the H-1B employee showing that it is the same as that offered to similarly employed U.S. workers (and H-1B employee’s elections, if any) | |
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Copy of certified LCA with signature of H-1B employee as proof he or she received copy | |
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Documentation regarding any adjustment to the wage (e.g., annual raise or cost of living increase) | |
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Where the employer undergoes a change in corporate structure, and does not choose to file amended petitions for each H-1B it acquires, a sworn statement from the new employer that it accepts all obligations under the LCAs filed by the predecessor employer and a list of the affected LCAs | |
Withdrawing the LCA
In order to limit any potential liability, the employer must withdraw a certified LCA if the H-1B employee working under it terminates H-1B employment. This may be done if no H-1B employee is employed at the place of employment pursuant to the LCA and no investigation has been commenced regarding the particular application.
Conclusion
If you are an employer who has questions regarding LCA, consult a VisaPro attorney. We also cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.
Source: http://www.visapro.com/Immigration-Articles/?a=182&z=48
Grab Your Opportunity to File an H1B Visa With VisaPro’s H-1B Timeline
VisaPro.com
Jul 18th
The clock starts ticking every day as that important date in immigration – April 1 comes closer. As many of you already know, April 1 marks the first day that USCIS accepts H-1B petitions for the federal government’s fiscal year beginning on October 1. As per regulations, employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, which makes April 1 beginning of the race for obtaining an H-1B visa before the cap is reached.
What Happened in the Past?
In 2008, USCIS received 150,000 applications for 65,000 H-1B slots in just two days after the filing period started on April 1.
In 2007, the H-1B cap was reached in just one day and USCIS conducted a lottery to randomly choose petitions for processing. In first two days, USCIS received 123,480 cap-subject H-1B petitions, amounting to nearly a double of the annual allotment of 65,000 visas. The U.S. Master’s cap that exempts the first 20,000 petitions on behalf of beneficiaries who obtained an advanced degree at a U.S. institution of higher learning was exhausted on April 30. This was merely a continuation of the pattern that has been occurring over the past several years, where each year the cap was reached earlier than the year before.
H-1B Application Timeline
Though it is not a guarantee that your petition will be selected for processing, if you follow this suggested timeline you will have maximized your efforts to ensure timely and successful filing of your H-1B petition.
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Tips for Employers
Check to see if the individual you plan to hire is subject to the cap.
When looking to hire an individual who has already been in the H-1B status, itis important to determine whether this person has been previously counted towardsthe cap or not. For example, if you are hiring someone who has worked for a universityand thus qualified for a cap-exemption, this person would have to be countedtowards the cap now because they were not previously counted.
Obtain educational equivalency evaluations now.
For any person who graduated from a non-U.S. institution of higher learning, it is important to obtain a degree equivalency evaluation that will be submitted with the H-1B visa petition. Waiting until the last minute could mean that you will not be able to obtain the evaluation in a timely manner, because the degree evaluation services tend to be inundated with requests during this H-1B season.
File your Labor Condition Application (LCA) and start your public accessfile.
Before any employer can file an H-1B visa, they must first file a labor condition application with the U.S. Department of Labor. Don’t forget that on or within 30 days before the date of filing the LCA, the employer is responsible for posting the LCA form or a notice of the intent to obtain an H-1B at two conspicuous locations in the place of employment for at least 10 days. All records related to the LCA filing should be kept in a public access file.
Consider filing for more than one person for the same position.
One way to address the cap issue is to file an H-1B petition for more than one qualified person and improve your company’s chances of getting at least one approval. Based on what happened last year, it is fairly certain that USCIS will once again institute a lottery system to randomly choose petitions for processing. Last year about 1 in 2 petitions was chosen for processing, this year that ratio will likely be even worse and could be as high as 1 in 4. If you have identified more than one suitable candidate, it may be worth your investment to file for more persons than you had initially planned. It is wise to at least take this option into consideration when making your H-1B decisions.
Conclusion
The competition for the coveted H-1B visas has been intensifying over the years and now the situation is in a dire state. Filing early is no longer a guarantee of obtaining an H-1B visa, it is now a prerequisite for even being considered. With this in mind, it is important that every company interested in sponsoring an H-1B worker plan ahead and prepare to file the nonimmigrant visa petition in a timely manner.
VisaPro specializes in serving individual and corporate clients in various countries all across the world. We have successfully handled H-1B petitions for a variety of clients ranging from one-man start-up firms to multinational companies, from software engineers to market research analysts, fashion models, optometrists, medical technologists, organic farm managers, social workers, etc.
ContactVisaPro to receive assistance with your H-1B filing strategies for next fiscal year. Our experienced attorneys will be happy to assist you.
Source: http://www.visapro.com/Immigration-Articles/?a=794&z=48
