The majority of employees selected for the FY2015 H-1B cap will be changing status on October 1, 2014 and employers should be mindful of the following:
- Any FY2015 H-1B petition that is still pending approval for an employee who is working pursuant to the F-1/H-1B cap gap provision should be premium processed now. Employers should note that the F-1/H-1B cap gap provision only provides employment authorization until September 30, 2014, so the beneficiary of an H-1B cap-subject petition will need to have the H-1B petition approved on or before that date to avoid any interruption in work authorization.
- Any FY2015 H-1B petition that is still pending for an employee who is working pursuant to F-1 OPT status and who is eligible for an F-1 OPT STEM extension should consider filing one now. Qualified individuals who timely file Form I-765, Application for Employment Authorization, under the F-1 OPT STEM designation are authorized to work in the United States upon filing an application with U.S. Citizenship and Immigration Services for an additional 17 months. This will avoid the requirement of premium processing the H-1B petition. It will also allow the F-1 student to maximize his or her period of stay in F-1 status, which has the dual benefit of retaining the exemption from Medicare and Social Security tax withholding, as well as delaying the activation of his or her H-1B period of stay that is limited to six years.
- Employers should ensure that employees working pursuant to F-1, M-1 or J-1 visa status and changing status to H-1B on October 1, 2014 should no longer be claiming exemptions from Medicare and Social Security taxes. All H-1B workers are generally subject to these taxes.
- H-1B petitions are employer-, location- and position-specific, so it is good practice to remind new H-1B workers of their obligations while holding this status, including no moonlighting for other companies, as well as alerting the employer of any new work sites the H-1B worker may be sent to and changes in their work duties.
- New H-1B holders will need to be reminded that they will need to secure H-1B visa stamps at Consulates abroad when they travel internationally so that they can re-enter the country in H-1B status. Any employee who is outside of the country at present may secure his or her H-1B visa stamp at a U.S. Consulate abroad now; however, they can only enter the country using their H-1B visa stamp up to 10 days prior to the activation date on their H-1B petition and commence work on the activation date-not before. For example, anyone with an October 1, 2014 activation date may get their H-1B visa stamp now, enter the country no earlier than September 21, 2014 and start working for the company on October 1, 2014.
- All new H-1B holders should be given a copy of the certified Labor Condition Application used in connection their H-1B filing.