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10 Ways to Beat H-1B Quota to Start Work NOW!

This year the H-1B quota ran out on the very first day! In fact, there was such a deluge of H-1B applications that the USCIS was forced to run a lottery to decide who among the applicants would receive a coveted H-1B visa. As a result, many applicants who applied on the very first day were unable to get an H-1B visa. Therefore, if you want to have a chance of obtaining an H-1B visa, your best bet is to qualify under one of the quota exemptions listed below. Best of all, if you qualify for an H-1B exemption, you can proceed with your H-1B petition immediately, to start work now (either immediately upon approval of the H-1B petition or upon receipt of the petition if you qualify for portability), without having to wait for the next fiscal year!

Posting notices of filing for college and university teachers after the selection process has been completed

Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?

According to the Labor Department:

Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.

I need to enter the years of experience, education, or training on my ETA Form 9089. How do I do this? What if it's a range?

According to the Labor Department:

When entering the years of experience, education, or training on ETA Form 9089, the questions asking for this type of information specify the answer be provided in the number of months necessary. Therefore, if the employer requires 1 year experience in the job offered in ETA Form 9089, the number 12 (for 12 months) would be entered for the answer to Question H-6A.

However, if the employer would accept a range of experience in the job offered (such as 1 to 3 years), the employer must identify the actual minimum years/months of experience required to perform the job (please see 656.17(i) for additional information on Actual Minimum Requirements). The number that represents the Actual Minimum Requirement for the number of years/months experience would be the number entered in Question H-6A. If a range is indeed the Actual Minimum Requirement, the employer should use the low end of the range as the answer, since that represents the minimum level of requirement.

What is revocation?

According to the Labor Department:

If the granting of a labor certification is found not to be justified, whether based on unintentional or willful conduct of the employer, a previously approved labor certification will be revoked.

Does the BPC case continuance letter need to be signed only by the employer or can the attorney of record sign?

According to the Labor Department:

The Selection of Continuation Option Letter may be signed and submitted by either the employer or the employer's attorney/agent of record. We request, however, that employers and attorneys coordinate to determine who will submit the Selection of Continuation Option Letter to ensure that the appropriate Backlog Processing Center does not receive conflicting or duplicate responses. In the instance of conflicting responses, we will default to the employer's response.

How long must supporting documents be retained?

According to the Labor Department:

The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089.

What are the sequencing or timeframe requirements for the various additional recruitment steps?

According to the Labor Department:

Beyond the standard "no greater than 180 days and no less than 30 days prior to filing" there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.

NOTE: There is one exception to the standard 30 – 180 days prior to filing timeframe: One of the additional steps required for recruitment for professional occupations may be conducted within 30 days prior to filing. However, no steps may have taken place more than 180 days prior to filing.

Must the employer request a prevailing wage determination from the State Workforce Agency (SWA) if filing under Schedule A?

According to the Labor Department:

Yes, a prevailing wage determination must be requested from the SWA having jurisdiction over the proposed area of intended employment.

What should I do if my case status is "Closed" but I do not believe it should be closed because I never received a 45-day ...

What should I do if my case status is "Closed" but I do not believe it should be closed because I never received a 45-day letter?

According to the Labor Department:

Please see our policy and FAQs regarding Requests for Reopening based on 45-day letters here: backlog_faqs_07-10-06.pdf (PDF, 50KB)

For how long must the employer publish a notice of filing in the employer's in-house media?

According to the Labor Department:

If the employer normally recruits for similar positions in the employer's organization through in-house media, then the employer must publish the notice of filing in its in-house media in accordance with the employer's normal procedures for recruitment of similar positions or for 10 consecutive business days, whichever is of longer duration.

If the employer's job opportunity is for an occupation which is subject to a wage determination...

If the employer's job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), must the employer use the DBA or SCA?

According to the Labor Department:

No, the employer is not required to use a wage determination under the DBA or the SCA but may choose to do so.

Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university ...

Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?

According to the Labor Department:

Yes, the employer must provide a notice of filing which must include the advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

What recourse does the employer have in the event a labor certification is denied or revoked?

According to the Labor Department:

If a labor certification is denied or revoked, the employer may make a request for review to the Board of Alien Labor Certification Appeals (BALCA) by submitting, in writing and within 30 days of the date of the determination, a request to the Certifying Officer who denied or revoked the application.

Can an attorney, agent or law firm register to use the Permanent On-line System?

According to the Labor Department:

No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the "Employer Contact Information" section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.

NOTE: To withdraw or delete a registration account (as in a situation where the original registration was set up showing an attorney or representative as the "user" and/or where the contact person for the employer is not a person with actual hiring authority), please e-mail PLC.HELP@dol.gov, provide the user name and password, and request the account be deleted. At that point, the person with actual hiring authority can re-register with the correct information.

How detailed does the recruitment report have to be with respect to the lawful, job-related reasons U.S. workers were rejected?

According to the Labor Department:

The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

NOTE: The Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rejected.

What documentation must the employer file when seeking a Schedule A labor certification for a professional nurse?

According to the Labor Department:

The employer must file, as part of its labor certification application, documentation the alien meets one of three requirements: the alien has a Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate, the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.

NOTE: Unlike the filing requirements under other PERM provisions, for Schedule A occupations, the employer is required to submit the applicable documentation when the employer files the application with the appropriate Department of Homeland Security office.

Why have I not been contacted by the BEC or received any information about my case?

According to the Labor Department:

There are several possible reasons an employer or their attorney might not have heard anything from the BEC about the case. Some examples include, but are not limited to: 1) the State or Regional office may have disposed of the case prior to shipping and the applicant did not receive notification; 2) The State or Regional office may have inadvertently not shipped the case to the BEC; 3) the BEC may have attempted to contact the applicant but the contact information was incorrect; or 4) the BEC inadvertently omitted the case during data entry.

May I post a Notice of Filing for multiple positions of the same occupation and job classifications with a single posting?

I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?

According to the Labor Department:

Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor's regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).

NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.

Is it permissible to use the same prevailing wage determination for more than one application?

According to the Labor Department:

Yes, as long as provisions regarding the validity period are followed, the employer is permitted to use the same prevailing wage determination if the prevailing wage is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved.

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher...

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

According to the Labor Department:

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process.

Search for H1B Visa Employers

You can search for "H1B Visa Employers" using this database, which was compiled by Antao & Chuang, Attorneys at Law from government sources. This database identifies those U.S. employers who have filed for H-1B visas in the past, or who have at least started the process by filing for the LCA. If you find an employer you are interested in, you can then contact them to inquire as to whether they have any current job openings in your field. Please tell your friends about this valuable resource.

Use this form to search for H1B Visa employers.

"FMG Friendly" Employers

Foreign Medical Graduates ("FMGs") should be aware that there are "FMG Friendly" employers, and "FMG Unfriendly" employers. This database (compiled by Antao & Chuang, Attorneys at Law from government sources) identifies those U.S. employers who have filed for H-1B visas for foreign medical graduates in the past (or at least started the process by filing for the LCA), and who can therefore be deemed "FMG Friendly". Please tell your colleagues about this valuable resource.

Use this form to search for "FMG Friendly" employers in a given state.

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