US Visa News: US immigration attorneys advise quick action in filing | India News


MUMBAI: A shut-down of the US federal government was recently averted, as President Biden signed a short-term spending bill that will fund the US government through November 17, 2023. Post this, no one is sure what the future holds.
While applications for those selected in the H-1B cap second lottery need to be filed by October end, immigration attorneys are advising in other cases also such as H-1B extensions, immigration related filings should be taken up at the earliest.
Robert Webber, immigration attorney, has tips to offer the H-1B visa holders, “If they intend to switch jobs, they should accept the new job offer at the earliest, so that the new employer can get the Labour Condition Application (LCA) filed and approved before November 17.”
In the event of a shut down, immigration related functions carried out by the Department of Labour (DOL), such as processing of LCAs, permanent labour certification and prevailing wage determining functions will be suspended.
Employers in the US who sponsor H-1B employees are required to obtain a prevailing wage rate. Employees on this work visa are required to be paid a wage higher of the actual wage rate (paid to other employees with similar experience and qualification who are performing the same job) or the prevailing wage (that is predominantly paid to workers in the same occupational classification in the area of intended employment at the time the H-1B application is filed). The next step is filing a LCA at DOL’s processing center. Only employers with certified LCAs can proceed with the process of obtaining an H-1B visa.
While visa application processing is undertaken by US Citizenship and Immigration Services (USCIS), which is fee funded (and hence not as impacted by the shutdown), a sponsoring employer cannot approach the USCIS without having finished the first two formalities at DOL.
“If there is a shutdown it will be business as usual for USCIS because it is fee funded by users except for a few programs that receive appropriated funds. The agency that will be most likely impacted will be the DOL that will cease processing all applications if there is a shutdown and this will indirectly impact the ability of foreign workers to remain in nonimmigrant status,” said Cyrus D. Mehta, a New York based immigration attorney.
“Since obtaining a LCA from the DOL is an essential prerequisite for filing an H-1B extension, a shut-down at DOL will also impact the ability of employers to file timely H-1B status extensions with USCIS before the expiration of a foreign worker’s status,” adds Mehta.
An application for an H-1B visa extension cannot be submitted sooner than six months prior to the current H-1B expiration date. In this context, Webber, states, “Sponsoring companies can get LCA filed for expirations through mid-May. For H-1Bs that expire after mid-May, 2024, the LCA can be carried out earlier.”
He illustrates: If a sponsored employee’s H-1B expires on June 1, 2024, the LCA can be filed on October 2, 2023, and a six-year validity period of April 1, 2024 up to March 31, 2027 can be sought.
“Not every employer will want to do this, but it is a good approach to manage risk in some situations, including cases where the H-1B worker has a spouse on a dependent visa, who has work authorization. With this step, the anxiety about a gap in the spouse’s work is mitigated,” states Webber.


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