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The H-1B Visa

The H-1B Visa

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The H-1B Visa

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  1. The H-1B Visa

  2. The H-1B Golden Ticket • The key to working in the U.S. after a student completes the optional practical training • No other immigration options • Very few other nonimmigrant visas granting authorization to work • Obtaining legal permanent residency is usually a long process

  3. The H-1B Visa Summary of the H-1B Visa • Nonimmigrant (temporary) visa • Six years (with certain exceptions) • Professional or “specialty” occupation requiring a bachelor’s degree • Employer specific • Location specific

  4. The H-1B Visa Concurrent Employment • An alien can work concurrently for two or more employers pursuant to H-1B petitions.

  5. General Requirements

  6. General Requirements Specialty Occupation • Generally, the position must require at least a bachelor’s degree in a particular field related to the position.

  7. Cont. Specialty Occupation • Examples: • Engineer • Computer scientist • Physician • Professor • Accountant • Teacher

  8. General Requirements Cont. Specialty Occupation • The alien must have at least a bachelor’s degree in the related field or: (1) the foreign academic equivalent; (2) equivalent work experience; or (3) a combination of both.

  9. Prevailing Wage for the H-1B • The employer must pay at least the prevailing wage. • It is determined based on minimum requirements and the area of intended employment. • The Department of Labor’s website provides four wage levels. • A private survey may be obtained.

  10. General Requirements No Benching Allowed • The employer must pay the beneficiary alien when nonproductive, with limited exceptions.

  11. Processing Procedures

  12. Processing Procedures Changing Status from F-1 to H-1B • An F-1 alien can change status to H-1B, which means that the F-1 need not leave the country to obtain H-1B status. • The F-1 alien should file to change status well in advance, since employment pursuant to the H-1B petition cannot commence until the petition is approved and a visa number is available.

  13. Changing Status from F-1 to H-1B The H-1B Cap on Visa Numbers • 65,000 H-1B visas are available each fiscal year and 20,000 additional numbers are available for those with a master’s degree or higher from a U.S. institution.

  14. Cont. H-1B Cap • The earliest an employer can file an H-1B petition is April 1st of each year. • The earliest start date that can be requested is October 1st of that same year.

  15. Fiscal Year 2008 H-1B Cap Reached • The H-1B cap for bachelor’s degree petitions for fiscal year 2008 has been reached. Since the petitions received exceeded the visa numbers, the petitions were subject to a lottery. • USCIS returned those petitions that did not receive a number.

  16. Changing Status from F-1 to H-1B Petitions Exempt from the H-1B Cap • Certain employers and petitions are not subject to the visa cap. These include…

  17. Changing Status from F-1 to H-1B Cont. Cap Exemption • Any alien counted against the cap within the past six years, unless the alien would be eligible for a new full six years of H-1B status: • out of the country for a year; • seasonal & intermittent worker; or • in the US less than six months per year

  18. Changing Status from F-1 to H-1B Cont. Cap Exemption • J-1 who has obtained a waiver through the State 30 program • Beneficiaries of employment offers at institutions of higher education or related or affiliated nonprofit entities • Nonprofit or governmental research organizations

  19. Changing Status from F-1 to H-1B Cont. Cap Exemption • An alien changing H-1B employers as long as she was not working at a cap-exempt institution previously • Extensions of H-1B status

  20. Filing Fees and Attorney Fees • The employer must pay an ACWIA fee of $1,500 (for 25 or more workers)/$750 (fewer workers) • The employer may not request reimbursement from the employee.

  21. ACWIA Filing Fee Exemptions • This fee is waived for certain employers and situations, including…

  22. Cont. ACWIA Filing Fee Exemptions • Institutions of higher education and affiliated nonprofit entities • Nonprofit and governmental research organizations • Second H-1B extension requests • Amended petitions with no extension • Primary or secondary institutions

  23. Fraud Filing Fee • The employer should pay the $500 fraud fee for new petitions and change of employer petitions (unclear whether the employee can pay it in certain situations).

  24. Changing Status from F-1 to H-1B Other H-1B Filing Fees • The base fee of $320 can be paid by the employer or employee. • The premium processing fee of $1,000 can also be paid by either party.

  25. Changing Status from F-1 to H-1B Who Can Pay Attorneys Fees • The employee is not allowed to pay the attorney’s fee. • A third party could pay these fees. • Public school H-1Bs face challenges here.

  26. Changing Status from F-1 to H-1B Premium Processing • $1,000 filing fee • USCIS must adjudicate the petition within 2 weeks of receipt or request additional evidence within this time frame • Not necessary to obtain a visa number, since the filing of the petition secures the petition’s place in line for a visa number.

  27. Changing Status from F-1 to H-1B Processing via Change of Status • An F-1 student can change status and remain in the US after the petition is approved and before the visa number becomes available (October 1st) only if the student’s F-1 status, including the 60-day grace period expires after the requested start date of October 1st. • No gap in status is allowed to change status.

  28. Example of Changing Status from F-1 to H-1B • F-1 student’s optional practical training is expiring on August 30, 2008. The student would be able to change status to H-1B and remain in the US, since her 60-day grace period would fall after October 1, 2008. • If the F-1’s OPT is expiring on July 15th, then she must consular process.

  29. Ways to Avoid Gap in Status & Change Status in US • Graduate in the winter so that optional practical training expires in the winter and well after the October 1st visa number availability. • Change to another nonimmigrant status for the period between the expiration of the F-1 and the start of the H-1B in October.

  30. Consular Processing for an H-1B Visa • If an F-1 student cannot change status in the U.S., then the student must obtain an H-1B visa at a U.S. consulate abroad before working in H-1B status

  31. When Consular Processing is Required • USCIS makes a formal finding of a status violation against the F-1 student • A status violation can include: • A gap in status • Working without authorization • Not maintaining a full courseload

  32. Change of Status Versus Consular Processing • In both cases, H-1B status is granted to the alien. • The only difference between change of status and consular processing is the process for obtaining H-1B status.

  33. Consular Processing for an H-1B Visa Obtaining A New H-1B Visa Abroad • If the F-1 alien originally changed status to H-1B in the U.S., then the alien must obtain a new H-1B visa before re-entering the U.S. after a trip abroad. • Exception: Travel to Mexico or Canada for less than 30 days

  34. Post-filing Issues

  35. Post-filing Issues Admission and Extension • An alien can obtain H-1B status for up to three years at a time and for a maximum of six years. • The extension petition must be filed where the alien is still in H-1B status, unless USCIS forgives a gap in status.

  36. Exceptions to the Six-Year Period • The alien may seek H-1B status indefinitely beyond the six year period under the following situations…

  37. Post-filing Issues • A labor certification or Form I-140 immigrant visa petition was filed at least one year before the end of the six-year period in H-1B status • The Form 140 is approved and a visa number for legal permanent residency is unavailable

  38. Portability • Where an H-1B worker is changing H-1B employers, the employee can commence employment with the new H-1B petitioning employer upon the filing of an H-1B petition.

  39. Filing for Legal Permanent Residency

  40. Filing for Legal Permanent Residency • The alien can start the process for legal permanent residency either before, during or after filing the H-1B petition.

  41. Filing for Legal Permanent Residency • The alien can obtain universal employment authorization after filing for adjustment of status to legal permanent residency.

  42. Legal Permanent Residency

  43. Legal Permanent Residency Definition • Ability to live and work permanently in the US • Can be acquired through employment and family sponsorship as well as through several other routes

  44. Employment-based Legal Permanent Residency

  45. Employment-based Legal Permanent Residency • An alien being sponsored for legal permanent residency through employment requires a certified labor certification application, with certain exceptions for special immigrant visa petitions.

  46. The immigrant visa petition is filed with USCIS without the need for a labor certification. Special Visa Petitions

  47. Special Visa Petitions Cont. Special Visa Petitions • Extraordinary ability (EB-1) • Outstanding researcher or professor (EB-1) • Multinational executive or manager (EB-1) • National Interest Waiver (EB-2)— requires advanced (master’s) degree • Investor

  48. Special Visa Petitions Cont. Special Visa Petitions • Schedule A professional nurses and physical therapists • May have multiple immigrant visa petitions pending simultaneously, including one based on a labor certification and a special immigrant visa petition

  49. First Stage of the Employment-based Case: PERM Labor Certification