As you may know, each year, the U.S. government makes available a limited amount of visas in the H-1B Specialty Occupation temporary work visa classification. For its Fiscal Year 2014, U.S. Citizenship and Immigration Services ("USCIS") will begin to accept H-1B cap petitions for filing starting on April 1, 2013, six months before the start of Fiscal Year 2014.
What Is the H-1B Annual Quota?
The annual cap or quota on H-1B visas is 85,000. Of that number, 20,000 are reserved for foreign nationals who have received a master's or more advanced degree from a United States university. However, not all employers are subject to the cap. For example, employers filing H-1B petition extensions or amendments on behalf of foreign nationals already working in H-1B visa status for the existing employer are exempt from the quota. In addition, employers filing new petitions to change H-1B employers on behalf of a foreign national working in H-1B visa status for a different employer are also exempt from the quota (except where the foreign national is currently employed by a cap-exempt employer such as a U.S. institution of higher education and now is switching to a cap-subject private employer).
When Can an Employer File?
USCIS will start accepting cap petitions on Monday, April 1, 2013. An employer may send a petition for filing no earlier than Friday, March 29, 2013, to arrive by overnight courier service at USCIS the following Monday. The date received at the appropriate USCIS Service Center having jurisdiction over the place of intended employment is the date that counts for "filing" purposes. A petition received earlier than April 1st will automatically be rejected. Petitions received starting Monday, April 1 through Friday, April 5 will be treated the same for cap-counting purposes, as USCIS will wait for those five business days before processing. If USCIS should receive more than the sufficient number of petitions in the five days to use up the annual quota, as it has in the past, it then will hold a lottery to randomly select by computer generation those petitions it will process. Petitions not selected will be returned to the employers. If the H-1B cap is not reached during the initial five-day period, then USCIS will continue to accept petitions until the quota is reached.
We Recommend Employers Start to Prepare Now
No one knows how early the H-1B cap will be reached this year. Last year, it was reached on June 11, 2012. Early preparation of an employer's petition is therefore critical. Preparing and processing H-1B cap petitions is a lengthy procedure that first requires obtaining an approved Labor Condition Application ("LCA") from the U.S. Department of Labor (the "DOL") before the petition may even be filed with USCIS. The DOL has seven days in which to approve or certify the LCA; however, for employers filing an LCA for the first time, it will take longer for the DOL to verify the employer's FEIN, therefore delaying the certification. If the foreign national's degree is not from a U.S. institution of higher education, it must first be independently evaluated in terms of its equivalency to a U.S. degree, a bachelor's being the minimum requirement (or equivalent work experience using a designated formula of 3 years of work experience for every academic year of college missing). All of these actions take time. Demand for H-1B cap petitions may well be greater this fiscal year than in the past several years due to increased hiring in many economic sectors. Accordingly, we recommend that employers start to gather documentation promptly and plan to submit their petitions on April 1, 2013, in order to increase the likelihood of getting one of the coveted H-1B visas.
John McLafferty and James Leva wrote an article, "DOL Issues Final Overtime Rule," for CBIA News. The article is about how the U.S. Department of Labor's final version of the overtime exemption rule will burden employers substantially and require careful review of job classifications and workforce policies to ensure compliance.
Day Pitney Alert
On February 25, Francine Esposito, Michael Dell and Arielle Sepulveda will speak at a BLR FMLA Master Class entitled, "New Jersey - Advanced Skills for Employee Leave Management." They will discuss recent regulatory and legislative developments and best practices for FMLA compliance.
Francine Esposito and Arielle Sepulveda wrote an article, “Federal Contractors Will Have To Provide Paid Sick Time,” for Pratt’s Government Contracting Law. The article explains the policies federal contractors and subcontractors need to have in place by January 1, 2017 to meet the requirements of a recent Executive Order signed by President Barack Obama for paid sick time. Specifically, federal contractors and subcontractors must allow their employees to earn at least seven days of paid sick time each year if they do not already have policies in place that provide the same amount.
Patrick McCarthy, Dan Schwartz and Basil Sitaras authored a blog post, “NLRB Again Invalidates Arbitration Agreements,” that was picked up by New Jersey Law Journal. The post examines Acevedo v. Amex Card Servs. Co., Case No. 28-CA-123865, in which the National Labor Relations Board (NLRB) again found that arbitration agreements that include class action waivers are illegal and unenforceable under the National Labor Relations Act (NLRA).
Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."
John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.
Howard Fetner was quoted in an article, "Judge Allows Company to Withhold Benefits From Departing Employee," in The Connecticut Law Tribune. Fetner represented Community Health Center, Inc. (CHC), a statewide company that provides health care services to low-income patients, in a case in which a former CHC employee sought to recover compensation for unused paid time off. Following a trial, the court ruled in favor of CHC, reinforcing an employer's right to condition the payment of compensation for accrued fringe benefits upon an employee's giving a specified amount of advance notice of termination.
Rachel Gonzalez was mentioned in an article, "Unions set to begin voting on NJ Transit rail contract," in NJ.com. Gonzalez provided an explanation of the approval process concerning union agreements in connection with the NJ Transit rail unions voting on the proposed settlement to avert a strike.