Proving and Winning Your H-1B Case in 2015

& THOMPSON

JANUARY 29, 2015

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AgendaH-1B Visa Overview

Proving Your H-1B Case

F-1 Student Cap-Gap Rules

Other Visa Options

Post-Approval Alerts

H-1B Visa Overview

H-1B Nonimmigrant Visas

A nonimmigrant (temporary) visa that allows a non-citizen to be employed in the United States for up to 6 years in a “specialty occupation” for a specific employer (“petitioner”).

What is a Specialty Occupation?

An occupation that requires highly skilled specialized knowledge and

A bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation

Employee Qualifications

Have completed a U.S. bachelor’s or higher degree (or its foreign equivalent) or

Have education, training, or experience in the specialty equivalent to the completion of such degree (3:1 rule) and

Possess full state licensure if required to practice in the state of employment

H-1B Numerical Limitations - “H-1B Cap”

Quota of 65,000 new H-1B visas per fiscal year (except 6800 Free Trade Act (FTA) nationals)

20,000 per fiscal year for persons who hold US Master’s degrees or higher

Applies to first-time H-1B or previously cap-exempt H-1B employees

February Prepare petition

April 1 Apply for

H-1B

April 7 Lottery cutoff

May 1 Acceptance or Rejection

Notices

July Decision Notices

2016 FY H-1B Cap Timeline

H-1B Cap Exempt Categories

Employers Universities/Colleges

Non-profit affiliates of universities/colleges

Government or non-profit research facilities

Employment For profit employment at universities or their non-profit affiliated facilities

Physicians Physicians who received government-sponsored J-1 waivers of two year home residency requirement

Proving Your H-1B Case

1 Specialty Occupation

2 Employee Qualifications

3 Employer-Employee Relationship

4 Valid Job Offer and Company

5 H-1B Cap-Exemption

Detailed Job Description

Daily duties and percentages of time spent on duties

Similar positions in the industry or in your business

Proof of Specialty Occupation

Organizational chart with job descriptions of other positions

Expert opinions and reports

Professional associations

Proof of Specialty Occupation (cont.)

Proof of Employee Qualifications

Diplomas and Degrees

Employment Experience Letters

Credential Evaluation or Expert Opinion

Professional License, if applicable

Employer- Employee Relationship

Employment Contract/Offer Letter

Employee Manual/Benefits Summary

Performance Review

Client Contracts/Work Orders

Pay Records/W-2/Work Schedule

Proving Valid Job Offer and Position

Federal Tax Returns

Unemployment Tax Reports

Organizational Charts

Payroll Records

Company History

H-1B for the Self-Employed or Business Owners

Employer-Employee Relationship

Company Structure – Corporation/LLC

Board of Directors - hire, fire, or otherwise control owner

Specialty occupation required

http://fedgov.dnb.com/webform

Validation Instrument for Business Enterprises (VIBE) Program

VIBE allows USCIS to electronically receive petitioning company information from D&B

Business activities

Financial standing, e.g. credit rating

Number of employees, both on-site and globally.

Relationships with other entities

Type of office, e.g. single office

Type of legal entity.

Company executives.

Date of establishment

Current physical address.

Proving H-1B Cap-Exemption

Higher Ed Public or Non-profit

Associate degree or higher

Proof of Accreditation

Non-Profit & Affiliated w/Higher Ed

501(c)(3) exemption letter

Agreement with Higher Ed, e.g. Clinical Training

Supporting letter from Higher Ed

Third-Party Employment

Agreement with Higher Ed or Non-Profit Affiliate Org

Supporting Letter from Exempt Facility

Educational or non-profit purpose

Proving H-1B Cap-Exemption (cont.)

As of March 2011, USCIS will honor previous determinations of cap exemption if employer provides:

A copy of the previously approved cap-exempt petition (relevant pages of the Form I-129 and pertinent supplements);

A copy of the Form I-797 approval notice (issued after June 6, 2006) for the affiliation-based cap exempt petition; or

Documentation previously submitted with a petition in support of the claimed cap exemption.

F-1 Student Cap-Gap Rules

Cap-Gap Rules for F-1 StudentsPrevents gap between F-1 expiration and H-1B start date, in most cases.

If student has active OPT, can work until September 30, 2015 and remain in U.S. until H-1B decision is made. If H-1B approved, student can continue or resume work using H-1B visa. If H-1B denied, 60 day grace period begins on date of denial.

If student has expired OPT and H-1B is filed before expiration of 60 day grace period, student can remain in U.S. until H-1B decision. No work authorization during this period. If H-1B is approved, student can begin work. If H-1B denied, student must leave the U.S.

Other Visa Options

TN – Trade NAFTA for Canadian and Mexican professionals

E-3 – Australian professionals

E-2 – Treaty investor essential personnel and managers

H-1B1- Professional from Chile and Singapore

J-1 – Exchange visitors for training

L-1- Transferees from foreign affiliate companies

O-1 – Extraordinary Ability professionals at the “top of the field”

F-1 OPT STEM extension – 17 month extension

Green card options - PERM labor certification, EB-1 extraordinary ability, national interest waiver, and others

Post-Approval Alerts

International Travel

Visa Processing at U.S. Embassy (www.usembassy.gov)

Administrative Processing Delays

Petition Returns

USCIS Audits

Random Selection

Unannounced Employer Site Visit

Email Demands for Documents

Preparing for a USCIS Site Visit

Step 1

Review the H-1B petition

Step 2

Prepare compliance evidence file for inspector

Step 3

Identify company representatives who will meet with auditors

Step 4

Establish site visit procedures for reception, clients, and H-1B employee

Employers

Take these steps immediately after the approval of your H-1B petition to prepare for a surprise site visit from the USCIS.

Potential Consequences of Negative Findings

Denial of Pending Petition

Notice of Intent to Revoke Previously Approved Petition

Revocation of Previously Approved Petition

Criminal Penalties

Civil Fines

Legal Notice

The information provided in this presentation is general in nature and should not be relied upon for specific situations. Because each case is different, you should consult with an experienced immigration attorney for your specific situation.

Prepare Now

Consult with an immigration attorney.

Gather necessary documents and information.

Prepare and conduct final review of H-1B petition.

File H-1B petition on April 1.

Questions? Comments?

Cowles & Thompson901 Main Street, Suite 3900

Dallas, Texas 75202214-672-2000 Telephone214-672-2020 Facsimile

immigration@cowlesthompson.comwww.cowlesthompson.com

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