The new federal fiscal year begins on October 1, 2018, and those with approved H-1B petitions will be starting their employment under their new H-1B status at that time. Employers need to be reminded of their obligations in working with an H-1B employee, and international students currently in “cap-gap” Optional Practical Training (“OPT”) status need to be aware of immigration issues if they are awaiting approval of their H-1B petition.
As mentioned in a previous client alert, U.S. Citizenship and Immigration Services (“USCIS”) has suspended premium processing of H-1B petitions until February 19, 2019. Many employer-petitioners and employee-beneficiaries are still awaiting a decision on their H-1B petitions. International students currently in cap-gap OPT must cease working on September 30, 2018 if their H-1B petitions are still pending. Continuing to work beyond that period would be considered unauthorized employment in violation of F-1 status. However, U.S. Immigration and Customs Enforcement (“ICE”) has indicated that an international student may remain in the United States while awaiting their H-1B petition decision if a change of status was requested. Whether an international student should leave the United States or stay should be discussed with an immigration attorney who can determine the best course of action based on the individual’s unique circumstances.
While premium processing on H-1B petitions has been suspended, petitioners may request that their case be expedited with USCIS based on specific criteria. Note that the decision is discretionary and documentary evidence related to the reason for the expedite request should also be submitted.
For employers who have received an approval of their H-1B petitions, it is important to review the attestations that they agreed to in filing the Labor Condition Application (LCA) with the H-1B petition. For those employers who are currently employing the H-1B employee under another status, an update on the employee’s Form I-9 is necessary if the employee’s current employment authorization document has expired or will expire by October 1, 2018. Additionally, employers are reminded that they must begin paying the prevailing wage or actual salary offered, whichever is higher, when the employee is available to work. Additionally, in a world of increasing Form I-9 and other audits, it is important that employers maintain and have accessible public access files containing mandatory documents, including the certified LCA, prevailing wage determination, and other documents. A conversation with immigration counsel may be prudent to ensure regulatory compliance.
If you have any questions regarding the H-1B visas and their effect on employers or cap-gap OPT students, please contact Leech Tishman’s Immigration Practice Group.
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