Friday, March 21, 2014

THE GREAT H-1B RUSH


Portsmouth, NH - 3/21/2014.

Its a rite of passage;  a gauntlet that many immigration lawyers, paralegals, and clerks are well aware of and, indeed, in the middle of at this very moment.  Its the great annual H-1B rush.   Its something akin to the Running of the Bulls in Pamplona except with less cow droppings,  no funny white pantsuits, but just as much blood, sweat, and occasionally tears.  

The H-1B
The H-1B is a type of visa for non-immigrant workers.  The H-1B visa is, broadly speaking, for individuals who possess special skills, knowledge, and experience that the employer could not locate nationally.  To ensure fairness in the marketplace, the U.S. Government requires that employers pay their foreign workers the same as U.S. workers performing the same jobs.  The Department of Labor created and manages lists of job categories and pay scales that USCIS uses to make sure that the "prevailing wage" for a particular job is met -- and, indeed, can take enforcement action if the employers are found 'cheating'.

The specific jobs covered in the H-1B are quite varied but the specific derivative of H-1B cases that has everyone preoccupied today is the H-1B "CAP" cases.   These are the specific cases where the worker and job combination fall within a numerical maximum that the government sets out each year.  For 2013 the Cap was 65,000 applications which was reached within the first week of the season (which begins April 1st).   File too late?  You'll have to wait an entire year until you can try again.    This ultra-tight deadline for workers that, truth be told are quite badly needed to help U.S. companies function, means that law firms experienced in these sorts of cases (and there aren't many) start sometime in late July (September for the really brave, or crazy) to pull together the vast amounts of financial, operational, and personal information required for each application.    

INCONSISTENCIES & LEGAL GAPS
Like much of the immigration laws that exist in the United States, the H-1B category is rife with inconsistencies, bureaucratic red-tape, double-speak, and unending secret rules and work-arounds that mean not only that even the biggest law firms get them wrong, but that even the most experienced lawyers are constantly having to keep in touch with their peers to figure out if the rule that applied last year; last month; last week; or even yesterday still applies today.

Most of these issues have to do, as with many of the problems with the United States' immigration law, from poorly thought-out amendments and carve-outs in laws that were never really drafted together and, at best, don't really fit neatly with the existing laws.  

A perfect example is the "LCA/H1B start-date dilemma".  The LCA, or "Labor Condition Assessment" is a document that must be submitted as precedent to the H1B being filed.  In essence it is an approval from the Department of Labor indicating that the job a petitioning company is offering a foreign worker meets the compensation and functional (job duties, etc.) requirements of the same job being performed by a U.S. national.  In even more simplistic terms, its a check to ensure that companies are not bringing in foreign workers to pay lower wages than they would have with U.S. workers.   The LCA requires that the start date for a job be no more than 183 days from the date it is filed and will -- like the H1B -- remain valid for three years.   The H1B  "CAP", on the other hand will generally not permit workers to start before October 1 of the given year.     As the LCA is needed BEFORE the H1B is filed, the result is that the "start date" for LCA purposes is less than the "start date" for H1B purposes.  This also means that, based on the LCA, the Employee's authorization will end before the H1B would.   What's this all mean?  In simplest terms, it means that an employee is shorted the number of days/weeks between the LCA expiry and H1B expiry.  The law is such that the Employee can only start at the LATER of the two (LCA / H1B) "start dates" but must cease working by the EARLIER of the two (LCA/H1B) "end dates".

Depending on when the law firm files the LCA, this could shorten a work period by weeks or months.

In 'theory' if one filed the LCA on April 1st and then the H1B after the LCA is approved the October 1 start date would align.  However, the "theory" and the reality simply don't (nor have they ever) aligned.   Because the H-1B "cap" is met so soon, the reality is that, in most cases, by the time the LCA arrives, the H1B would be filed too late.   So employers, employees, and indeed industries, have to accept several weeks or months of economic downtime at the end of an H1B term simply because of a bureaucratic glitch. 


So what to do?  March 21st.  That's the date.  Its an open secret in the business that to optimize your client's worker utility March 21st is when you need to get your LCA in to the Department of Labor.  Later than that?  You're not likely to get an approval back in time to file the H1B on April 1st.  Earlier? Your client's losing valuable working time.  






So right now, across the country, in busy law offices, lawyers, paralegals, and clerks and breathlessly rushing to get this paperwork sorted out, checked/double-checked/triple-checked and filed.  


So, to all of our friends and colleagues at firms big, and small, across the United States -- keep at it, keep caffeinated, good luck, and hopefully we'll all share a toast come April 1st.    And to all of the partners, spouses, roommates and other family members and friends of anyone embroiled in the H-1B rush we can only express our deepest condolences and thanks for putting up with us!  




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