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The H-1B Visa Blog by Siliato and Malyk

THE GOOD, THE BAD AND THE “SOMEWHAT” UGLY NEWS ON THE H-1B VISA PROGRAM

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The GOOD:

(1) H-1B visa numbers are still available!

USCIS recently advised that, as of September 3, 2010, approximately 36,600 H-1B cap-subject petitions were receipted.  Additionally, USCIS has reported receipting 13,400 H-1B petitions for aliens with advanced degrees.  Therefore, more than 35,000 new H-1B visas are still available for fiscal year 2011 (which ends September 30, 2011).  Given the current usage and demand, it is anticipated that the H-1B cap will be reached sometime in the first quarter of 2011 (with no new visa numbers available until October 1, 2011).

(2) China Reciprocity schedule amendment!

Effective July 9, 2010, the Department of State's reciprocity schedule for China has been amended to allow for a 12 month multiple entry visa for qualifying H visa applicants.  This is certainly welcome news to Chinese nationals who, on account of the pre-existing reciprocity schedule that has been effect for years, were given only single entry visas valid for 3 months--severely restricting travel of Chinese nationals on H-1B visas.  

The BAD:

USCIS implements fee increase for certain H-1Bs and L-1s

On August 13, 2010, President Obama signed into law  Public Law 111-230 to enhance our border security. The new law contains provisions that require petitioners to pay an additional $2,000 for certain H-1B petitions and an additional $2,250 for certain L-1 petitions postmarked on or after August 14, 2010.  These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed for a new H-1B worker and one changing H-1B employers. USCIS has indicated it expects this additional fee to be paid by the employer.

The Administration claims that said fee increase will help raise nearly $550 million out of the proposed expenditure of $600 million on increasing security along the U.S.-Mexico border. As you can imagine, such fee hike will severely impact Indian IT companies doing business in the United States.

THE "SOMEWHAT" UGLY:

DOL obtains nearly $1 million in back wages and interest for H-1B workers due to alleged violations of the H-1B Program

A computer consulting company based in Suwanee, Georgia, Smartsoft International Inc., has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program. DOL reached this agreement following a determination by the department's Wage and Hour Division that the company violated the H-1B program's rules.

The Wage and Hour Division investigation resulted in the following findings: (i) that some H-1B employees were not paid wages at the beginning of their employment (ii) that others were paid on a part-time basis despite being hired under a full-time employment agreement; and finally (iii) that several employees were paid less than the prevailing wage applicable to the geographic locations where such employees performed their work.

This case demonstrates the basic regulatory protections for H-1B workers inherent in the H-1B program. For example, sponsoring employers are required to attest to the DOL that they will pay wages to H-1B nonimmigrant workers that are at least equal to the actual wages paid to other workers with similar experience and qualifications for the position in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater. The program also establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers.

With H-1B public access file audits and unannounced site inspections increasingly on the rise, it behooves H-1B employers to conduct self-audits of their public access files and insure that its H-1B workers are being paid the proper wage.

For additional information and frequent updates on a variety of corporate and business-related immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

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Comments

  1. H1B Visa Attorney's Avatar
    H1B visa is use for USA immigration. Some times we heard about visa availability and fee increase. For that time this blog very helpful. Thanks for sharing such a nice blog.
  2. Sebastian's Avatar
    Your passport is a govnt. doeucmnt that belongs to you. They are required to give it back to you if you ask.. Otherwise contact your embassy. Are you teaching in China? If so, on a tourist visa? It is required that you register within 48 hours of arriving to any Chinese city where you will be staying for more than a few days. In fact, the PSB can fine you if you didnt do this in time.. So this may be the registration situatiuon you are talking about. However, it only takes a few minutes to register you.. Therefore, verify this is the case, and get your passport back.. If you are leaving in a few days and they are simply registering you.. (Not extending your visa) then you must get it back so you can leave.. I would still write a letter to the embassy. Go to the person who originally took your passport.. and get it back.. ADDITIONAL SCENARIOSIf you inquired about extending your visa, they could simply be in the process of extending your visa. THis takes time and not all govt. employees know how to do it.. So long as they are in the process you are fine.. However, you NEED to make them explain if this is the situation.. otherwise Two If you are working illegally than there are a number of permutations that could arise.. If your visa is about to expire, ask for it back. and right away.. Cause otherwise there is another fine if your visa expires.. (500 Rmb Per Day up to 4000 Rmb, or jailtime)
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