Visa Lawyer Blog

We often receive calls from frustrated employees on H1B visas complaining that employers are not paying them the required wages. Many are about to loose their jobs and want to learn more abot their rights.

The DOL’s Administrative Review Board recently addressed what circumstances constitute termination of employment for purposes of the employer’s H-1B obligations.

In its analysis of the case, Amtel Group of Florida v. Yongmahapakorn, the Board ruled that the employer had not effected a bona fide termination of its H-1B employee, because there was “no evidence that employer notified the USCIS that it had terminated (the H-1B employee) and that employer provided (the H-1B employee) with payment for her transportation home.”
As a result, the Board decided that the employer was not justified in withholding the salary otherwise due to the employee. The Board then ordered the employer to pay the prevailing wage for the employee until the expiration of the authorized period of stay for H-1B employment. This is an important precedent for employers to keep in mind when considering termination of H-1B workers. H1B workers are just like any other worker and deserve to be treated fairly.

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Just like I predicated in previous posts, U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions requesting exemptions from the fiscal year 2008 (FY 2008) H-1B cap for “foreign workers who have earned a master’s degree or higher from a U.S. institution of higher education” to meet the congressionally mandated exemption limit of 20,000. USCIS has determined that the “final receipt date” for these exempt H1B Petitions is April 30, 2007.

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Our law firm represents numerous hotels and restaurants across the U.S. Over the past several years, we have established ourselves as leaders in hospitality immigration, helping all levels of hospitality professionals. Sometimes their cases are straightforward. Other times, their stories are full of twists and turns.

Our client, a leading luxury hotel in California, was employing Mr. G. as a Banquet manager on a J1 visa. The J1 visa unfortunately allows the employer to keep the employee for a period of 18 months and not more. The hotel was impressed with Mr. G’s work and senior management expressed desire to keep him beyond the J1 term. We presented a few options, first the H2B visa for a short duration employment of up to 10 months. The problem is that H2B visas<a href= ran out in early March and that was not an option. We were left with the H1B visa that would allow Mr. G. to work up to six years. However, we discovered that he did not have a Bachelor's degree in the field of employment, a minimum requirement for the H1B Visa. Mr. G. was not qualified for the H1B visa at the time. His position was also one that did not require a Bachelor's degree.

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The U.S. Department of Labor (“DOL”) recently published a notice of an update for procedures for State Workforce Agencies (“SWA”) and ETA National Processing Centers to process H-2B labor certification applications in non-agricultural occupations. The H-2B nonimmigrant classification allows temporary non-agricultural workers to come to the U.S. to meet seasonal, intermittent or peak-load needs of an employer where there are no U.S. workers who are able, willing and qualified to accept the temporary position(s).

The H-2B nonimmigrant visa classification may work as an alternative for the H- 1B. The earliest that H2B Labor Certifications can be filed for October 2007 starting date is June 1, 2007, employers must file early, please call or email me if you need more info..

You can read the update here

Clients are calling my office in the past week or so, reporting receipt of H1B receipts. A few days later same clients report getting same receipts for the same case. Other clients report receipts issued on the 5th or 6th of April, what is going on here?
The USCIS announced on April 16, 2007, that some of the regular H1B cases subject to the cap will be issued two receipt notices. The reason for this is that the USCIS issued receipts for some (but not all) cap-subject cases filed on April 2nd and 3rd. They changed the procedure before they issued receipts for all cases. Under the new procedure, the USCIS stopped issuing preliminary receipt notices once they realized that the H1B cap had been met on the first day these cases were accepted. The USCIS conducted a random, computer-generated lottery on April 12, 2007 to select the H1B cases that would receive the limited cap numbers.

We are in the process of receiveing receipts for cases that were selected, I assume that if no receipts are received by our office, by early next week clients should assume that the cases were not selected.

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Are you stressed enough with the H1B craziness, well here is another update.

I just learned today that 20,000 H1B numbers reserved for person’s with advanced degrees may be gone by the end of this week, more or less by Thursday afternoon. As you know the 65,000 general cap was reached on April 2, 2007.

There is currently legislation pending in Congress that may help increase the cap and provide relief for the thousands of workers ready to come and work in the US. Many readers ask us what they can do to help. Click here to find out