Cut off dates for March 2014 (VisaBulletin for March 2014) , Immigration...

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IIFA 2014 | H-1B Visas Specifically

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- H-1B Visas, specifically: What is it; When to file; Process of H-1B Visa Preparation; The obligations of the employer and the employeeR; How long it takes to get approval; and
   
- Tickets to IIFA in April for Tampa Florida - tickets sold via Ticketmaster- The International (North) Indian Film Academy Awards, also known as the IIFA Awards, are a set of awards presented annually by the International Indian Film Academy to honour both artistic and technical excellence of professionals in Bollywood, the Hindi language film industry. The event was last held at Macau in the year 2013. The 15th IIFA Awards would be held at Tampa Bay Area, Florida USA from April 23 to 26, 2014. Instituted in 2000, the ceremony is held in different countries around the world every year. This award ceremony has been organized by Wizcraft International Entertainment Pvt Ltd – one of India’s premier event management and entertainment agencies—since its inception.

IIFA 2014 | H-1B Visas Specifically

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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?!?

ABCs OF H-1B PART I (A)

The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows US employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or leave the US.

The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models, who must be "of distinguished merit and ability").

Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.

ABCs OF H-1B PART I (A)

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.