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Cap-Subject H-1Bs Will Be Effective October 1st, 2014

On October 1, 2014, FY 2015 H-1B cap-subject visa petitions will be valid. Individuals in possession of valid H-1B petitions must take appropriate action to demonstrate work authorization for the petitioning employer. For certain individuals, demonstrating H-1B status can be as straightforward as completing an I-9 form.
For example, if the following requirements are met: 1) an H-1B “Change of Status” petition was approved; 2) they will be physically present in the United States on October 1, 2014; and 3) as of September 30, 2014, will be in the same visa status as they were in when the petition was filed and approved.

Applying for a Visa Stamp Abroad

If the prospective H-1B worker is outside of the United States or if the petition was filed without a change of status request, they will need to apply for an H-1B visa to enter the United States and commence employment. Although the ability to begin employment starts on October 1, individuals with approved petitions may apply for the visa stamps up to 90 days in advance. However, U.S. Customs and Border Protection (CBP) cannot admit them to the United States in H-1B status until September 21, 2014, 10 days prior to petition validity.

After October 1, individuals who automatically change from another visa status to H-1B status and then depart the United States will be required to apply for an H-1B visa to enter the United States as an H-1B worker. (Note: All foreign nationals except Canadian citizens are required to possess a valid visa stamp to enter the United States after international travel, except for brief trips of less than 30 days to Canada or Mexico.)

Individuals must apply for new H-1B visas in-person at U.S. consulates. Dependents seeking H-4 status must also apply for visas. Document requirements and application procedures vary significantly from location to location, so applicants are encouraged to ascertain those requirements in advance of making the application. Assuming visa approval, the applicant leaves their passport with the consulate and typically receives it in the mail within three to seven business days.

Commencing Employment

I-9 forms for H-1B workers must be completed by the petitioning employer within three business days of hire. Completing the form requires that the worker complete Section 1 of the form on the first day of employment and present evidence of his or her ability to work in the United States, which is verified by the employer no later than the third day of employment. In some cases, the H-1B worker may have already completed an I-9 form if he or she began working in a different visa status. Their I-9 form must be updated to reflect their current employment status. Typically, H-1B workers present a valid foreign passport and their I-94 registration.

Students in F-1 visa status who are working pursuant to valid employment authorization approved by U.S. Citizenship and Immigration Services are exempt from U.S. Social Security and Medicare taxes. However, once in H-1B status, that exemption ends and the employee’s tax withholdings will need to be adjusted.

Note: This article was published in the August/September 2014 issue of the Immigration eAuthority. This article is brought to you by Ogletree Deakins a member of the EACCNY.

Ogletree Deakins is pleased to announce the addition of the follow business immigration attorney:
Matthew Kolodziej has joined the New York office as an Associate. He comes from the American Immigration Lawyers Association in Washington, D.C., where he was a Legislative Fellow working on the proposed immigration reform legislation.
Previously he was an attorney at a firm in D.C. where he assisted companies and individuals obtain immigrant and non-immigrant visas for investors, skilled workers, inter-company transferees, and individuals of extraordinary ability.
Mr. Kolodziej has assisted technology companies, media companies, hospitals, financial institutions, and non-profits with their business immigration needs, and has also litigated before the immigration agencies, the immigration courts, and the federal courts of appeals. He is fluent in Spanish and French.