H1B Premium Processing for Cap Petitions Resumes
In this live video,
Transcript (this was filmed live so may not be exactly the same)
We recently talked in one of our videos how to speed up the immigration process. We mentioned that some processes allow for paying a premium fee to have your application processed in 15 days. There had been a temporary halt to that for H1B applications. On Friday USCIS said they would be accepting them again for H1B cap applications. We are going to talk about that a little more today.
I’m Raluca Hanea. I provide immigration, estate planning, and family law services for my clients.
Here with me, is my marketing and office manager, Nina Cleere.
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Nina: Can you remind us what the H1B visa is?
Raluca: Sure. An H1B visa is a visa an employer obtains when they need a skilled worker for a specialty occupation and they weren’t able to find anyone in the US to meet the skills, education, and experience necessary so they hire someone from a foreign country.
Nina: So they have to advertise the position in the US first, right?
Raluca: That’s right.
Nina: And people often think they apply for the H1B visa and they are approved for it, but it’s actually the company that applies for it, right.
Raluca: Yes, that’s an important fact to be aware of. The visa is for the business, not the person.
Nina: Why is that important to know?
Raluca: Since this visa goes with the business, and is for a specific position if a person comes to the US and leaves that company, they do not have a visa, unless they obtained a different one before leaving the company. As soon as they leave the sponsoring company they are considered out of status.
Nina: How does premium processing work?
Raluca: The company pays an additional fee – right now it is $1410 – and a form requesting premium processing. USCIS guarantees a 15 day processing time. If they don’t take adjudi-ca-tive action within 15 days (meaning they make a decision or request more information) they return the fee but they still continue to process the application in an expedited manner.
Nina: So it sounds like its worth it to pay the fee even if they don’t get it done in 15 days.
Raluca: I would agree with that.
Nina: So can a company file their H1B application with the premium processing fee?
Raluca: Usually. But since USCIS had stopped accepting them, they are only accepting them right now for pending applications such as those who have an RFE (request for evidence) not with any new applications.
The Fiscal Y 2019 cap has already been met so that is why they aren’t accepting it for new applications. Any company applying now would be filing to get into the Fiscal Y 2020 group.
Nina: We also had a question about the required salary for H1B visas. Can you tell us a little more about that?
Raluca: Yes. For H1B visas an employer must pay the worker the “RWR” required wage rate. This can be paid either hourly or as a salary and is based on a formula the Department of Labor has devised.
Nina: So there is not a specific amount you must be paid?
Raluca: No, it is based on an industry standard for your position.
However, some congressmen have been talking about a way to limit the amount of H1B visas (remember this administration and many congressmen are trying to limit visa numbers and immigration) by requiring a set amount to be paid. Currently, those who are H1B dependent are held to a stricter set of rules.
Nina: What does that mean H1B dependent?
Raluca: A calculation must be done for the number of employees and the number who are here under H1B visas but it’s usually if they employ more than 15% of their workforce with an H1B visa they are H1B dependent.
Nina: And they have to pay a higher wage?
Raluca: It’s not that they MUST be paid a higher wage it’s that IF they want an employee to not be counted in their H1B numbers (if they are avoiding being considered H1B dependent) the employee must be considered “exempt.” In order to be exempt the employee’s income (including bonuses and other items) must be over $60,000 and one bill proposed it be raised to $130,000. But that bill was sent back for language changes in 2017 and thus far another one has not been introduced.
This is a very complicated topic so we always advise if you have questions, talk to an attorney.
Thank you for watching. If you have any questions, please drop us a private message, post it here, or call our office. We are always here to help.
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