Immigration H-1B

What HR Legal needs to know about – Intermittent Employees and I-9 Issues

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Law Office of Sweta Khandelwal
Law Office of Sweta Khandelwal

Occasionally, a company requires an intermittent employee to complete a certain project or goal.  A foreign national on an H-1B or L-1 visa may be employed in the US for a short period of time. Regardless of how long a particular employee stays or how often they come in and out of the United States, an employee in the United States must comply with I-9 requirements, , even if they are paid by a foreign employer.

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An employer must ensure, at a minimum, that Section 2 of Form I-9 is completed within three days of the employee commencing employment.  Sometimes an overseas employee may enter the US for the limited duration of a project and leave US without completing the I-9 Form. In such a situation, the employee must complete the Form I-9 upon their next arrival in the United States.  However, this does not always cure the violation; the employer may find themselves in trouble with E-Verify standards.

A common misconception by employers is that rules/laws regarding worksite compliance do not apply to foreign employees. This is not true. Although for an employee  on a foreign payroll the missing Form I-9 may not come up in an I-9 audit, the Immigration and Customs Enforcement may find it in their own audit; or if company tax records are scrutinized.

On a separate note, complying with the IRS tax requirements for both the employer and employee can be a very complicated process, requiring an analysis of the employee’s primary residence, the days spent in the United States, current income tax guidelines, the employee’s income, and other factors.  It is imperative to check with a CPA.

Having a foreign employee work in the US requires the assistance of an expert immigration attorney, irrespective of the duration of employment in the US. Contact our office if you need assistance with hiring a foreign employee, I-9 compliance, or any other immigration issues.


Changes to H1-B and L-1A Filing fees. New Updates!

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Sophie Alcorn Immigration Lawyer

BY IN Immigration On 11-10-2015

On September 30, 2015, Public Law 111-230 sunset. Since 2010, this law has required additional filing fees of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. H-1B status is for nonimmigrants working temporarily in specialty occupations; L-1A status is for intracompany transferee managers and executives; and L-1B status is for intracompany transferees with specialized knowledge.

The PL 111-230 fee used to apply to companies with over 50 employees, at least 50% of whom were in H-1B, L-1A or L-1B status. The company had to pay this fee for any new H1-B or L petitions or for an H-1B or L-1 nonimmigrant change employers to come work for them.

These fees no longer apply to any petitions filed on or after October 1, 2015. It is unclear whether and when Congress will reauthorize this law and if so, when the fees might go back into effect, or if the fees would increase. Currently, USCIS is accepting Form I-129 for H-1Bs and L-1 without this fee, even if the company has over 50 employees, 50% of whom are H-1B or L-1 nonimmigrants.

What this means: if you have a compL1-Aany with more than 50 employees and at least 50% of them are on H-1B or L-1 status, this is a great opportunity. Since it is not the H-1B cap-subject lottery season (which takes place next winter for applications for new H-1Bs to be filed starting on April 1, 2016), you could take advantage of hiring a current H-1B or L-1 nonimmigrant either full-time with a change of employer, or by adding hiring him or her for part-time concurrent employment, without being subject to the PL 111-230 fee.

The current H-1B filing fees that remain, in the absence of the PL 111-230:

  • The Form I-129 base fee is $325.
  • If this H-1B is initial H-1B petition on behalf of a particular beneficiary, a change of status to H-1B or change of H-1B employer, or the first petition requesting an extension of H-1B stay by the same petitioner filing on behalf of the same beneficiary, it is subject to the American Competitiveness and Workforce Improvement Act of 1998. The ACWIA fee is $750 for corporations that have fewer than 25 employees, and $1,500 for corporations that have 25 or more employees. The ACWIA fee is not required for some simple amendments, second or later extensions, colleges, nonprofits, schools, and certain other employers.
  • New H-1Bs and transfers to new employers, including new concurrent employment but not renewals or extensions, are subject to the Fraud Prevention and Detection fee of $500.
  • If you need fast turnaround, USCIS offers premium processing for an additional $1,225. They will adjudicate the petition in 15 days or refund this money.

The current L-1 filing fees that remain, in the absence of the PL 111-230:

  • The Form I-129 base fee is $325.
  • New L-1s and transfers to new employers, including new concurrent employment but not renewals or extensions, are subject to the Fraud Prevention and Detection fee of $500. If you are filing a petition for a beneficiary to change status from L-1A to L-1B or from L-1B to L-1A, this fee isn’t required. It is only required for an employer seeking an initial L-1 for an individual.
  • If you need fast turnaround, USCIS offers premium processing for an additional $1,225. They will adjudicate the petition in 15 days or refund this money.

There are even more details for the fees for Chileans, Singaporeans, and people returning to a job they had previously, so if any of these situations apply you should definitely consult with an attorney.

Congress could decide to reauthorize the PL 111-230 fee, but there doesn’t appear to be any movement on this right now. So, if you’re from a large company with a lot of H1-B and L employees and you are considering hiring a new employee currently in H1-B status and not subject to the cap, or in L-1 status, this could be a great opportunity for you to save $2,000 or more on the process.

USCIS Suspends Premium Processing of H-1B Extension Petitions

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USCIS Suspends Premium Processing of H-1B Extension Petitions
USCIS Suspends Premium Processing of H-1B Extension Petitions
AdviseHub, the legal marketplace and immigration management solution, would like to update you on a recent change in H-1B visa processing. On May 26, 2015, the United States Citizenship and Immigration Services (USCIS) announced it would temporarily suspend premium processing of H-1B extension petitions until July 27, 2015. Premium processing enables employers to request resolution of H-1B extension petitions within 15 calendar days for an additional $1,225 fee. USCIS is taking this measure to devote additional resources to an upcoming influx of Form I-765 applications as part of the H-4 employment authorization program. During this time frame, petitioners will not be able to:
  • File Form I-907;
  • Request for Premium Processing Service;
  • Request for a Form I-129;
  • Petition for a Nonimmigrant Worker; or
  • Request an extension of the stay for an H-1B nonimmigrant.
The USCIS states it will continue to monitor its workload closely, and may resume accepting premium processing requests before July 27, 2015, if it determines that it can once again provide customers with the level of service offered with premium processing.

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H-1B Extensions

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Normally, a Temporary Worker (H-1B) receives a Visa for 3 years, and can receive an extension for up to 6 years.  Even if you change jobs, your total allowed time is still 6 years.  You can “recapture” time spent outside the United States when the extension is filed.  You and your employer should consult with a lawyer before filing for an extension if you want to reclaim time. Your employer will file the extension with the USCIS.  Remember that the employer is not obligated to file for an extension.

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