We sincerely hope everyone is staying healthy. We understand that many organizations are adjusting their operations to respond to the challenges of the COVID-19 outbreak and for the protection of employees, including closing office facilities and directing employees to remotely work from home or another location. As a reminder, H-1B and E-3 authorization approved for foreign workers is specific to a number of issues including the employer, wage, work location and job duties.
In general, any location where an H-1B or E-3 employee is performing work should be covered by a U.S. Department of Labor certified Labor Condition Application (“LCA”), which includes posting and notice requirements. H-1B or E-3 employee whose home is within normal commuting distance of the normal place of employment should re-post the existing LCA (even though it does not specifically include their home address as a work location) for 10 consecutive business days to comply with notice and posting requirements, and the posting notices must be placed in the Public Access File when taken down.
Please contact the Foster Garvey Labor, Employment & Immigration team if you have any questions regarding this and other worksite-related obligations of an H-1B or E-3 employer.
H-1B cap filing season is fast approaching. U.S. employers who sponsor foreign workers for temporary H-1B work visas should start preparing now for the upcoming new H-1B cap electronic registration commencing this year on March 1, 2020.
What Is The H-1B Cap
The H-1B visa is the standard professional US work visa. There is a quota (or “cap”) each year on the number of new H-1B visas available. Specifically, there are 65,000 H-1B visas available annually with an additional 20,000 for US master’s degree holders. Individuals who have not previously held H-1B status are generally subject to this annual cap. Over the last 5+ years, this cap has been oversubscribed. When this occurs, the US Citizenship & Immigration Service (“USCIS”) opens the filing window for a specific period and accepts electronic registrations for new H-1Bs during that period. Presuming the number of applicants registered during that period exceeds the annual quota, then USCIS plans to run a random lottery to select the applicants who will be eligible for making the H-1B petition filing in the following 90 days.
On January 30, 2018, the Department of Homeland Security (DHS) issued a final rule revising the random selection process (commonly referred to as the annual “H-1B Lottery”) by which the U.S. Citizenship and Immigration Services (USCIS) selects new H-1B petitions for adjudication under the annual H-1B quota. The rule is effective April 1, 2019, with no major changes to employers for the upcoming FY20 H-1B filing season; however, the rule does impose a new electronic registration requirement starting next year (FY21).
Foster Garvey’s International practice group comprises a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. A number of attorneys have been actively practicing in the international arena since the early 1970s.