Author: dannyadmin

H-1B visa cap season begins in less than a week

If you’re in the USA on a different visa, or planning to move to the United States on an H-1B visa, time is of the essence. Lottery submissions for the October 1, 2023 H-1B cap are open from March 1 – 18, 2022, and you need to be ready. In this newsletter, we’ll cover what an H-1B visa is, who is eligible, the timeline for applying, and other frequently asked questions.

 

1. What is an H-1B Visa?

H-1B is an employment-based visa, designed to allow U.S. employers to hire foreign nationals in specialty occupations in the United States. The H-1B visa allows the beneficiary to work in the United States for six years total. The visa is initially valid for three years, with the opportunity to extend it for another three years. It is also traditionally a path to permanent residency (green-card) status in the U.S.

Congress set the current annual cap for the H-1B visa at 65,000 employees. There is an exemption to the cap for 20,000 employees who have earned a master’s degree from a U.S. university.

But the visa is extraordinarily popular with U.S. employers, and for almost the last decade more employees have applied than visas available. For this reason USCIS (U.S. Citizenship and Immigration Services) hold an electronic H-1B “lottery” every March.

2. Can H-1B visa-holders bring their spouse and children to the U.S.?

H-1B visa holders can bring their spouse and any children under the age of 21 with them to the U.S. by securing an H-4 visa which is valid for the same length as the principal H-1B holder. Since 2015, certain H-4 visa holders are allowed to work in the U.S. 

3. Who is eligible to apply for an H-1B?

The H-1B visa allows a U.S. employer to hire and sponsor a foreign worker that meets these four requirements:

  • You have earned a bachelor’s degree or higher. Because USCIS traditionally considers three years of specialized training and/or work experience to be the equivalent of one year of college education, you may apply after 12 years’ work experience.
  • The proffered position meets USCIS’ specialty occupation requirement (typically requires a Bachelor’s degree at a minimum)
  • Payment is at or above the prevailing wage (statistical wage for employees who perform the same or similar jobs)
  • You are eligible for the H-1B lottery, apply on time, and are selected

4. What information do I need to apply for the H-1B lottery?

If you meet all of the qualifications, here’s what you’ll need when you apply:

  • The employer’s name, employer identification number (FEIN), business address, and contact information

  • Employer’s attorney’s contact information

  • The employee’s full name, date of birth, country of birth, country of citizenship, gender, and passport number

  • The employee’s educational information from any US-based  schools

5. What is the timeline to apply for the October 1, 2023 H-1B?

March 1 – 18, 2022: Once you’ve gathered and submitted the requested documentation to your attorney, you’ll be prepared for the fast-approaching lottery registration window. The lottery opens at noon eastern time on March 1, 2022, and will stay open until noon eastern time on March 18, 2022.

March 31, 2022: USCIS intend to announce the results of first-round selections.

April – June 2022: If selected, you have 90 days to file your full H-1B petition with USCIS.

Summer or late fall 2022:  Based on data from the prior two years (since USCIS created the electronic H-1B lottery), USCIS may hold second chance and third chance lotteries in the summer or late fall for unused lottery selections.

6. Can an H-1B visa holder change employers or work for other employers?

You may change employers if you find a new employer who is willing to sponsor you. At this time, you’ll need to file another H-1B petition to change employers. There’s good news though! Since you’ve already been approved for an H-1B visa, you are no longer subject to H-1B visa caps, and you do not need to go through the lottery again.

You may work for an additional employer if the second employer also sponsors your H-1B visa and files a petition.

You may not change employers or work for an additional employer that has not sponsored your H-1B visa.

Danny Grace PLLC offers flat-rate options for the H-1B application process

At Danny Grace PLLC we are happy to provide consultations or assistance with preparing petitions with H-1B cap petitions. We offer flat fees to handle the entire application. Please feel free to reach out to Danny Grace PLLC at (646)515-2821 or info@dannygracepc.com to schedule a free case assessment.

Danny Grace PLLC is a boutique employment litigation and immigration practice located in downtown Manhattan, New York, but offering a countrywide service to its clients. We have built an extension immigration practice specializing in visas, permanent residence (green cards), and corporate immigration. 

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

A Huge Win For H-1B Petitioners!

Denied an H-1B petition?

Market Research Analysts may get a second chance

If USCIS has denied your H-1B petition for a market research analyst position, we have great news for you. A recent court settlement may overturn the USCIS decision against your petition. You need to act fast, though. In this newsletter, we’ll explain who is eligible to have the decision reviewed, and how to request that your case be reopened. 

On April 16, 2020, two employers brought a lawsuit to challenge USCIS’ pattern and practice of denying H-1B petitions for the position of market research analyst. The lawsuit alleged that USCIS misapplied the law to deny such petitions by “employing boilerplate language and uniform faulty reasoning.” You can read the full complaint here.

To apply for an H-1B visa, employers must prove that the proffered position is a “specialty occupation.” There are four regulatory tests, but only one is relevant in this case: “[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.”

Because several degrees or fields of study may qualify a person to be a market research analyst, USCIS alleged that this role does not fulfill the degree requirement. In response, the plaintiffs alleged that the denials are “representative of a pattern and practice of similar USCIS decisions” citing “at least 66 H-1B market research analyst petitions that Defendant USCIS denied in the past three calendar years, employing the same reasoning and similar language in all.”

On May 4, 2020, these employers expanded their lawsuit, filing a nationwide class action, which was approved by a judge in November 2020. On October 19, 2021, the court approved the settlement of the parties. You can read a copy of the settlement agreement here.

This is a huge win for H-1B employers and employees who have applied or have plans to apply for H-1B visas. 

Pursuant to the settlement agreement, businesses whose H-1B petitions were denied by USCIS under 8 U.S.C. Sec. 1101 (a)(15)(H)(i)(b) for a market research analyst position can request the reopening of their case, provided that, “USCIS denied or will deny the petition solely or in part based on a finding that the specialty occupation, and … [thus the proffered position does not meet the requirement of specialty occupation]… And the petition would be approved but for this finding.”

Additionally, USCIS will assess other employment-related immigrant and non-immigrant visas based on the real market requirements and/or the employers’ business needs.

What does this mean for you? Check out the full announcement or keep reading for a step-by-step breakdown:

Does my case qualify for the class-action lawsuit?

To qualify, either you or your employer must have filed a market research analyst H-1B petition between January 1, 2019 and October 19, 2021. If your petition was denied because USCIS found that the position does not meet the requirement of a “specialty occupation” based on the degree requirement, but you fulfilled all other requirements, you qualify.

What happens now?

If you’re a class member, it is your right to file a petition for USCIS to re-open and re-adjudicate your petition. Please let us know ASAP if you wish to proceed.

When and where should class members file?

You must file the request to reopen your case on or before April 26, 2022.

What is an H-1B Visa?

The H-1B visa allows a U.S. employer to hire a foreign worker for any position that is considered a specialty occupation (typically needing at least a bachelor’s degree).

The visa is valid for 3 years beginning in October of the year you apply. The application must be initially made by way of lottery in March of each year.

Spouses and children of H-1B holders are eligible to join them on H-4 visas with mirrored duration.

You are eligible for an H-1B visa if:

A. You have earned a bachelor’s degree

B. Your employer agrees to sponsor you before March 2022

C. The proffered position meets the specialty occupation requirement

Danny Grace P.C can help

If you are a class member or a foreign worker interested in applying for an H-1B visa, or have tried to apply and been unsuccessful in the past, please feel free to reach out to Danny Grace P.C. at (646)515-2821 or Danny@dannygracepc.com to schedule a free, 30-minute case assessment.

Danny Grace P.C. is a boutique employment litigation and immigration practice located in downtown Manhattan, New York, but offering a countrywide service to its clients. We have built an extensive immigration practice specializing in visas, permanent residence (green cards), and corporate immigration. Our principal, Mr. Daniel Grace is a top-rated immigration attorney in New York, NY. 

About Danny Grace, P.C.

Founded in 2012, Danny Grace, P.C. is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace, P.C. for a successful outcome on all of your legal needs.

Our team is ready to help you with:

Back To Work: Navigating The Changing COVID-19 Guidelines As Employees Return To The Workplace

If you’ve been wondering about the legalities of mask and vaccine requirements in the workplace, we’ve compiled an FAQ for employers and employees to keep you informed about what is (and isn’t) legal.

As New York returns to the way we knew it, many workers are starting to make the shift from working from home to returning to the office.  Indeed in a press conference a number of weeks ago, New York’s previous governor Andrew Cuomo pled with private companies to re-open their offices, even going as far as suggesting employers target Labor Day as a return-to-office timeframe.  Opening offices, he noted, would help stimulate the economic recovery.

However, with an increase in infection rates toward the end of the summer months, more and more employers are announcing plans to mandate COVID-19 vaccinations for employees who report to in-person offices. On July 29, President Biden announced that federal employees must be vaccinated or meet other conditions, including mask mandates and frequent testing.  Additionally, New York will require state employees to get COVID-19 vaccinated by Labor Day or undergo weekly tests. Several private employers are also requiring their returning employees be vaccinated, including McDonalds, Facebook, and Netflix.  CNN recently publicly fired three employees who refused to comply with their vaccine requirements.

Which begs the question: can employers require their employees get vaccinated? The short answer is yes, with exceptions.  With guidelines and policies varying between jurisdiction and circumstance, it is important for employers and employees alike to stay well informed and up to date with the most recent recommendations in order to make well informed choices to protect themselves from liability and know their rights. Outlined below are key, up-to-date points for both employers and employees to know as they work to navigate the changing guidelines as employees return to the office:

For Employers

Any and all mandates should have appropriate exceptions:

Recent guidance from the Department of Labor Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) has made it clear that vaccine mandates are allowed and even encouraged to ensure a safe and healthy workplace.  Under federal law, a mandatory workplace vaccination must meet the standards outlined under the Americans with Disabilities Act (“ADA”) of being job related and consistent with business necessity. Determination of such will vary between workplaces and particular circumstances. Furthermore, District Courts in Indiana and Texas have upheld vaccine mandates as constitutional when they include appropriate medical or religious exceptions; imposing a strong signal that employers, both public and private, can legally impose such restrictions so long as they consider the appropriate exceptions and apply them where necessary.

Employers may ask their employees whether they received a COVID-19 vaccine:

The EEOC has expressly stated that an employer’s inquiry, by itself, into an employee’s vaccination status does not qualify as prohibited medical inquiry under the ADA; however, caution should be taken to avoid also soliciting information related to an employee’s medical condition. Employers are recommended to limiting their vaccine related questions to simple “yes” or “no” questions.

Employers may require proof of vaccination by way of the CDC-issued vaccine card:

Vaccine cards do not contain any medical diagnosis, medical history, or other personal identifying information that employers do not already have for all their employees. Therefore, employers may ask to see their employees’ vaccine cards as way to prove vaccine status. However, employers should again warn the employee not to provide any other medical information as part of the proof to protect themselves from ADA liability.

Monitor State and local guidance and orders:

Employers are recommended to consider several factors before implementing face-covering or vaccine requirements in the workplace.  Factors can include office size, communal space, number of employees, vaccine status of their employees, and local orders.  It is also important for employers to consider, to a point, the thoughts and opinions of their employees.  Employers should continue to maintain their obligations to maintain a safe and healthy working environment.

Use caution before termination:

Even if an employee refuses to company with company vaccine (or mask) policy, employers should use caution before resorting straight to termination.  Be sure to engage in an interactive dialogue with employees and provide reasonable accommodations where appropriate.  As always, employers should also determine whether employees are protected by any other rights under EEO laws or other New York, federal, and local authorities prior to implementing disciplinary measures or terminating that employee.

For Employees

Private employers have the right to require vaccination to return to the workplace:

It is important for employees to know that their employers have the right to require COVID-19 vaccinations in the workplace.  If an employee has a legitimate health concern or religious belief that prevents them from receiving the vaccine, that employee should explicitly communicate these concerns to their employers and work with their employers on finding a reasonable accommodation to perform their work duties, which could include telecommuting or continued work from home situations if appropriate.

No, it is not a HIPAA violation for employers to ask for proof of vaccine status:

Varying discussions online and in the news has led to confusion over whether employers (or anyone) asking their employees if they have received a COVID-19 vaccine constitutes as a Health Insurance Portability and Accountability Act (“HIPAA”) violation, and the short answer is, no.  Although vaccine status is covered by the HIPAA rules, HIPAA only applies to HIPAA-covered entities, which includes healthcare providers, health plans, and healthcare clearinghouses, and their business associates.  Employers asking employees to provide proof of a vaccine (to, for example, allow that employee to work without a mask or physical distancing), or even asking the employee’s healthcare provider to disclose that information, is not a HIPAA violation since HIPAA does not cover most private employers.  It would, however, be a violation for an employee’s healthcare provider to share vaccine information without consent.

Be aware of ADA and Title VII protections:

There are several reasons why an employee may decide not to get a vaccine; some of which are protected by law.  If an employee indicates that a medical condition or sincerely held religious belief prevents them from receiving the vaccination, their employer must provide a reasonable accommodation for that employee pursuant to the ADA (prohibits discrimination based on disability) and Title VII (prohibits discrimination based on religion, among other protected classes).  It is important that the employee communicate why they should be exempt from the mandate and work with their employer on finding an accommodation.

Know your rights!

If you think you are being unfairly treated differently because of a medical condition or religious belief, contact this office and we can help!

This office is continuing to monitor vaccine guidelines as it relates to employment, and will continue to provide up-to-date relevant information for both employers and their employees. We also recommend that you continue to keep an eye on the EEOC, CDC and NY.gov websites to stay independently informed.

If you have any questions about your rights and responsibilities as an employee or employer, we’d love to help. Fill out this form, and you will hear back from us.

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

 

Immigration Options For Startups And Entrepreneurs

Are you a foreign entrepreneur who wants to own and operate a business in the US? In today’s newsletter, we’ll discuss the E-2 Treaty Investor Visa– who is eligible, the benefits, and how to obtain it.

The United States offers multiple visa options for startups and entrepreneurs outside the country who would like to work in the United States. H-1B visas, L- 1 Intracompany Transferee Visas, E-2 Treaty Investors, O-1 Extraordinary Ability Visas, B-1 Business Visitor, and EB-2 National Interest Waivers are just a few visa options for foreign nationals who want to work in the US. Each visa has its own requirements, benefits, and timeline. We’ll talk about each visa in an upcoming newsletter, but we’re starting with the E-2 Treaty Investor Visas.

E-2 Treaty Investor Visa FAQ

What is an E-2 Visa?

The  E-2 Treaty Investor Visa is a visa for entrepreneurs who would like to open and operate a business within the United States.

What are the benefits of an E-2 Visa?

Compared with an EB-5 (Investor) green card petition, the E-2 is cheaper and quicker, and requirements are considered looser. This means you are not required to create a certain amount of job opportunities in the USA.

Once you get your E-2 visa, you can extend it as many times as you want. There is no cap on the duration of this visa, but it does not provide a direct path to secure a green card as other visas can.

When you enter the United States on an E-2 visa, you can bring your spouse and unmarried children under 21. Under this visa, your dependents are allowed to work and attend school without hindrance.

E-2 visas also allow business owners and directors to bring essential employees from their home country to help with the business. However, absent certain strict conditions you must retain majority ownership in the business.

What steps do I need to take to secure an E-2 visa?

To obtain an E-2 visa, there are four primary hurdles for you to meet.

1. You must a citizen of a country that has a treaty with the United States.

E-2 Treaty Countries 

Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Canada, Chile, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Honduras, Iran, Ireland, Italy, Japan, Jordan, South Korea, Kosovo, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Montenegro, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Poland, Serbia, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, Yugoslavia, Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Brunei, Bulgaria, Cameroon, Congo (Brazzaville), Congo (Kinshasa), Czech Republic, Ecuador, Egypt, Georgia, Grenada, Jamaica, Kazakhstan, Kyrgyzstan, Lithuania, Moldova, Mongolia, Morocco, Panama, Romania, Senegal, Slovak Republic, Sri Lanka, Trinidad & Tobago, Tunisia, Ukraine

2. You must invest a substantial amount of money.

There is no specific or required investment amount, but you must prove that your investment substantially indicates your commitment to the success and continuation of your business.  The government adopts the “Proportionality Test,” considering the amount of investment and the cost of buying or creating an established business.

Please keep in mind two policies:

  • The more expensive a business, the less proportional the investment must be. The government uses the following scales:
    • For a business that requires an investment of less than $500,000, it is recommended that 85% to 100% of the funds are invested prior to filing;
    • For a business that requires an investment of between $500,000 and $3,000,000, a 50% investment is sufficient; and
    • For a business that requires an investment of more than $3,000,000, a 30% investment is sufficient.
  • Timing is everything. Make sure your business is close to being operational when you file your E-2 petition.

3. You will be asked to prove that your investment funds are legal and from lawful resources and that you have possession and control of the invested funds, and they are subject to loss should the business fail.

4. The business that you pursue must be bona fide, legitimate, and have a realistic chance of success.

What is the timeline for most E-2 visa consular processing?

From start to finish, there are usually four steps to complete:

1. Prepare documents and create business plans with the help of an immigration attorney (3 to 6 weeks);

2. Attorneys prepare the case, based on documentation from the client (1 to 3 weeks);

3. Submit the documents to the consulate and make an appointment for an interview (varies by country, usually no more than 90 days);

4. Entry. The border officer will grant your stay for an initial period of 2 to 5 years, depending on the treaty your country has with the United States.

Disclaimer:

Are you ready to build your business in the United States? The attorneys at Danny Grace, P.C. are ready to help! We specialize in immigration with extensive experience in:

  • Visas

  • Permanent residence (green cards)

  • Citizenship

  • Corporate immigration

  • Immigration hearings

To learn whether the E-2 visa is right for you, contact us today to set up a free case consultation.

About Danny Grace PLLC

Founded in 2012, Danny Grace PLLC is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace PLLC for a successful outcome on all of your legal needs.

Our team is ready to help you with:

Spotlight

At Danny Grace PC we come into contact with many useful service providers in NYC and beyond. We hope to also use our newsletter to recommend and endorse various businesses that we hope will be of use to others. If you need any further information, send us an email!

Bridge Benefits Group is a financial advisory firm that specializes in assisting companies obtain Retirement Plans, Health Insurance, Deferred Compensation Packages, and Business Insurance.  We work closely with the business owners to design custom benefits packages that fit the unique needs of the them, their executives, and the company as a whole.  As independent advisors we work with all providers to ensure our clients are getting the most prudent benefit package for their company without exorbitant fees and with the utmost service.

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