The H-1B and Beyond

GTRI Conference

February 6, 2015

Susan S. Im

• Offer of employment from US employer to FN of a position that qualifies as a “specialty occupation”

• FN must possess Bachelor’s degree or equivalent in a relevant field

• H-1B is employer specific; can hold multiple H-1Bs

• Offered salary must meet Prevailing Wage requirements of DOL and must obtain certified Labor Condition Application (LCA)

• Required gov’t fees ($325, $750 or $1,500, and $500) outside of attorney fee and who must pay fees

H-1B Requirements

What is the H-1B Cap?

• There is an annual limit of 65,000 H-1B visas

• 20,000 additional H-1B visas for U.S. advanced degree holders

• USCIS has run out of visa numbers every fiscal year

• Higher Education Institutions

• Nonprofit organizations “affiliated with” or “related to”Higher Education Institutions

• Nonprofit Research and Governmental Research Institutions

• Certain for-profit organizations that employ H-1Bs who will perform all or most of their duties on site at a qualifying organization listed above

Can Employers Avoid the Cap?

• Those approved for H-1B status in the past 6 years, counted against the cap, and who have not left the U.S. for 1 year or more

• Those working for cap-exempt org. but seeking to work for cap-subject employer concurrently

• Certain J-1 physicians who have obtained waiver of home residence requirement

Which Employees are Cap-Exempt?

• Maximum of Six Years

– 2 three-year increments

– Three years is the maximum for which an employer can petition at a time

• How do you get beyond the Six-Year Maximum?

– One-year extensions under AC-21

– Three-year extensions under AC-21

– Recapturing time spent abroad

What is the duration of the H-1B status?

• USCIS Service Centers can take 60+ days to process petition from the date of filing

• Processing time increases if USCIS issues a Request For Evidence (RFE)

• Ability to premium process a case (additional $1,225 fee)

• PPS does not help you get selected in the lottery!

H-1B Processing Times

• Spouses and children under the age of 21 of the H-1B worker can obtain H-4 dependent status

• Can study in the US on a full or part-time basis

• Cannot work on H-4 status yet

• Proposed USCIS rule for limited H-4 employment authorization

Dependent family members: H-4

• Cap Gap Rule: Who is covered?

• Requires “change of status” option to be checked on I-129 form

• Obtain proper annotation of I-20 form from your designated school official (DSO)

• What if my OPT is expired as of April 1?

H-1B Cap Gap Rule for F-1s

• Maximize practical training options of CPT, OPT and STEM OPT and try again the following year

• Consult immigration counsel on other potential options (E-2, O-1, TN, H-1B1, E-3, EADs through labor cert-exempt green card filing, EB-5, J-1 and H-3 if focus is primarily training)

What if I can’t find an H-1B sponsor?

• Most but not all categories require an employer sponsor for full-time employment

• Numerical limits and country quotas

• Country quotas for China, India, Mexico and Philippines

• Start green card process early in the H-1B tenure!

• FNs must maintain their temporary visa status while waiting for green card to be approved unless they are outside the US

Moving to Green Card: Employment-based (EB) Immigrant Visas

• EB-1 Extraordinary Ability Aliens, Outstanding Professors and Researchers, and Multinational Transferred Managers and Executives (40,000)

• EB-2 Exceptional Ability Aliens, Advanced Degree Professionals, and National Interest Waivers (40,000)

• EB-3 Professionals (bachelor’s degree), Schedule A RNs and PTs (unless M or B+5), and Skilled Workers (40,000)

• EB-4 Violence against Women Act (VAWA) and Permanent Religious Workers (10,000)

• EB-5 Immigrant Investors (10,000)

EB Immigrant Visa Categories

• Most professionals require a PERM labor certification application to be approved by Dept. of Labor (DOL) in order to obtain green card status

• PERM labor certification is the process in which an employer tests the job market by advertising the offered position to see if any qualified and willing U.S. workers are available

• PERM also requires employers to pay 100% of the prevailing wage for the position by the time the FN is approved for green card status

PERM Labor Certification

Skip DOL and go straight to USCIS with immigrant petition (I-140; or I-360 for EB-4 and I-526 for EB-5)

• EB-1

• Certain EB-2 workers (NIW and Schedule A Group II)

• EB-4

• EB-5

The Lucky Ones: Exempt from PERM Labor Certification!

• The I-140 immigrant petition follows PERM

• For PERM exempt cases go straight to filing the immigrant petition and may be able to file I-485 concurrently to get EAD

• Ensure the employer has the “ability to pay” the offered wage or salary

• Must have good faith intent to offer long-term, full-time employment to FN

• FN must prove s/he is qualified for the position

The Immigrant Petition (I-140, I-360, I-526)

• This is the final stage in an EB green card case

• Focus shifts from the employer to the individual

• Is FN admissible to the U.S.?

• Dependents are processed at this stage

I-485 Adjustment of Status or Immigrant Visa processing

• Published by Department of State at www.travel.state.gov

• Priority Date for EB petitions is either the filing of a PERM labor certification application with DOL or for an I-140, I-360 or I-526 petition with USCIS

• Additional visa quotas based on country of birth for China, India, Mexico and Philippines

• Cannot file the last stage of the green card process without CURRENT priority date

Visa Bulletin

Employment-based Priority Dates(from Feb. 2015 DOS Visa Bulletin, www.travel.state.gov)

EB All Chargeability

Areas Except

those Listed

China –

Mainland

born

India Mexico Philippines

1st C C C C C

2nd C MAR 15, 2010

SEPT 1, 2005

C C

3rd JAN 1, 2014 SEPT 1, 2011 DEC 22, 2003

JAN 1, 2014 JAN 1, 2014

4th C C C C C

5th C C C C C

Be proactive and initiate discussion on green card early in the H-1B tenure

H-1B and Green Card Status is Achievable!

Questions? Visit imlaw.biz, we’re happy to help.