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Employers Take Note: The Start Date For This Year’s H-1B Cap Cases Is Around the Corner

By Ian Macdonald on September 17, 2014
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The majority of employees selected for the FY2015 H-1B cap will be changing status on October 1, 2014 and employers should be mindful of the following:

  • Any FY2015 H-1B petition that is still pending approval for an employee who is working pursuant to the F-1/H-1B cap gap provision should be premium processed now. Employers should note that the F-1/H-1B cap gap provision only provides employment authorization until September 30, 2014, so the beneficiary of an H-1B cap-subject petition will need to have the H-1B petition approved on or before that date to avoid any interruption in work authorization.
  • Any FY2015 H-1B petition that is still pending for an employee who is working pursuant to F-1 OPT status and who is eligible for an F-1 OPT STEM extension should consider filing one now. Qualified individuals who timely file Form I-765, Application for Employment Authorization, under the F-1 OPT STEM designation are authorized to work in the United States upon filing an application with U.S. Citizenship and Immigration Services for an additional 17 months. This will avoid the requirement of premium processing the H-1B petition. It will also allow the F-1 student to maximize his or her period of stay in F-1 status, which has the dual benefit of retaining the exemption from Medicare and Social Security tax withholding, as well as delaying the activation of his or her H-1B period of stay that is limited to six years.
  • Employers should ensure that employees working pursuant to F-1, M-1 or J-1 visa status and changing status to H-1B on October 1, 2014 should no longer be claiming exemptions from Medicare and Social Security taxes. All H-1B workers are generally subject to these taxes.
  • H-1B petitions are employer-, location- and position-specific, so it is good practice to remind new H-1B workers of their obligations while holding this status, including no moonlighting for other companies, as well as alerting the employer of any new work sites the H-1B worker may be sent to and changes in their work duties.
  • New H-1B holders will need to be reminded that they will need to secure H-1B visa stamps at Consulates abroad when they travel internationally so that they can re-enter the country in H-1B status. Any employee who is outside of the country at present may secure his or her H-1B visa stamp at a U.S. Consulate abroad now; however, they can only enter the country using their H-1B visa stamp up to 10 days prior to the activation date on their H-1B petition and commence work on the activation date-not before. For example, anyone with an October 1, 2014 activation date may get their H-1B visa stamp now, enter the country no earlier than September 21, 2014 and start working for the company on October 1, 2014.
  • All new H-1B holders should be given a copy of the certified Labor Condition Application used in connection their H-1B filing.
Photo of Ian Macdonald Ian Macdonald

Ian R. Macdonald Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital

…

Ian R. Macdonald Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital domestically and internationally, including secondment agreements, benefits transferability, local host country employment concerns and immigration.

Ian and his team work closely with companies to manage and modify, where needed, corporate immigration programs to maximize efficiency, service and regulatory compliance levels. He is experienced with the full range of business immigration sponsorship categories (visas and permanent residence), anti-discrimination rules to reduce or eliminate risk of employment litigation, employer sanction cases, and I-9 and E-Verify compliance. Ian assists clients with establishing risk-based performance standards (RBPS) and Department of Homeland Security protocol, providing risk assessment assistance to corporations subject to Chemical Facility Anti-Terrorism Standards (CFATS) and assisting clients with ITAR/Export Control compliance within the immigration context.

Ian has developed strategic relationships abroad that he utilizes when working with clients to ensure compliance with foreign registration requirements. He is experienced with analyzing complex global mobility opportunities on country-specific matters to facilitate the transfer of personnel. Ian is also experienced in counseling employers on immigration strategy as well as immigration consequences of mergers and acquisitions, reduction in workforces, and furloughs.

Prior to joining the firm, Ian worked for the United Nations, various non-governmental think tanks and corporate law firms in London, Washington, D.C., New York and Atlanta.

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  • Posted in:
    Immigration
  • Blog:
    Inside Business Immigration
  • Organization:
    Greenberg Traurig, LLP
  • Article: View Original Source

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