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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 • Very few other immigration options, including other nonimmigrant visas granting authorization to work • Obtaining legal permanent residency is usually a long process

  3. Other Nonimmigrant Visas • Treaty Nafta (TN) • Must be a citizen of Canada or Mexico • Restrictive list of professions • E-1 and E-2 for treaty trader and treaty investor • Treaty with the alien’s country • Substantial trade or investment

  4. Cont. Other Nonimmigrant Visas • L-1 Intracompany Transferee • L-1A executive or manager • L-1B specialized knowledge • Must have worked for affiliated company abroad for at least 1 year • Must be coming to the US to work for affiliated company as executive, manager or specialized knowledge

  5. Cont. Other Nonimmigrant Visas • O-1 Extraordinary Ability • E-3 Australian Specialty Occupation • F-1 Student • J-1 Exchange Visitor • B-1 or B-2 Visitor • P Entertainer or Athlete

  6. Cont. Other Nonimmigrant Visas • Miscellaneous other visas (diplomats, cultural exchange, etc.)

  7. 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

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

  9. General Requirements

  10. Sponsorship by an Employer • An employer must file an H-1B petition on behalf of the alien • Self-employment is not allowed. • The alien could establish a company and that company could sponsor the alien.

  11. General Requirements Definition of Specialty Occupation • An occupation that requires the theoretical and practical application of a body of specialized knowledge, and • Attainment of a bachelor’s degree or higher (or equivalent) in the specific specialty as a minimum for entry into the occupation in the US

  12. Examples of Specialty Occupations • Examples: • Engineer • Computer scientist • Physician • Professor • Accountant • Teacher

  13. Examples of Non-Specialty Occupations • Waitress with a Ph.D. in linguistics • Life insurance agent • General/office manager • Customer service representative in nontechnical field

  14. General Requirements Cont. Specialty Occupation • The alien must have at least a bachelor’s degree in the related field or: • Foreign academic equivalent; • Equivalent work experience (3/1 rule); or • Combination of both.

  15. Prevailing Wage for the H-1B • The employer must pay at least the prevailing wage or the actual wage, whichever is higher. • 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.

  16. Processing Procedures

  17. Processing Procedures Changing Status from F-1 to H-1B • 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.

  18. Changing Status from F-1 to H-1B The H-1B Cap on Visa Numbers • 65,000 for the bachelor’s degree • 20,000 additional numbers for those with a master’s degree or higher from a U.S. institution.

  19. Fiscal Year for the H-1B Cap • Visas become available October 1st of each year. • The fiscal year runs from October 1st to September 30th.

  20. Cont. H-1B Cap • The earliest an employer can file an H-1B petition subject to the cap is April 1st of each year (cannot file more than 6 months in advance of the start date). • The earliest start date that can be requested is October 1st of that same year. • For this year, the earliest an alien can obtain H-1B status is October 1, 2008.

  21. Cont. H-1B Cap • The H-1B cap in both the bachelor’s and master’s categories for this fiscal year (10/1/08 to 9/30/09) was reached on April 7, 2008. • Petitions received from April 1st to April 7th are subject to a computerized random lottery.

  22. Cont. H-1B Cap • Last year, the H-1B cap was reached on April 1, 2007, the first day of filing. Some figures suggest that up to 200,000 petitions were received.

  23. 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 for October 1stonly if the student’s F-1 status, including the 60-day grace period, is through October 1st. • No gap in status is allowed to change status.

  24. The H-1B Cap-Gap • Prior to the new Optional Practical Training (OPT) rules, when a gap occurred between the expiration of the F-1’s status and October 1st, the F-1 student would have to leave the country and reenter on October 1st of that fiscal year.

  25. Example of Cap-Gap from F-1 to H-1B • F-1 student’s optional practical training is expiring on July 15, 2008. The student would not be able to change status to H-1B and remain in the US, since her 60-day grace period would expire before October 1, 2008. • If the F-1’s OPT was expiring on August 30th, then she could change status.

  26. Old Rule: No Employment during Grace Period • If the F-1 was granted a change of status to H-1B, the F-1 could not work during the 60-day grace period.

  27. New Rules on OPT Extension and Cap-Gap Fix • Provides automatic extension of stay and work authorization for all F-1 students with pending H-1B petitions until October 1st of the year the visa is requested • Extends OPT from 12 to 29 months for F-1 students with a degree in science, technology, engineering or math who are employed by a company in E-Verify

  28. Requirements for Cap-Gap Extension of Status and Work Authorization • H-1B petition timely filed • Requested change of status • October 1st start date • No violations of F-1 status • Terminates upon the rejection, denial or revocation of the H-1B petition

  29. Requirements for OPT STEM 17- Month Extension • Currently in 12-month period of approved post-completion OPT • At least a bachelor’s degree in science, technology, engineering or mathematics (STEM), which include:

  30. Cont. OPT STEM Extension • Computer Science Applications • Actuarial Science • Engineering or Engineering Technologies • Life Sciences • Math • Military Technologies • Physical sciences

  31. Cont. OPT STEM Extension • Working for US employer in a job directly related to the student’s major area of study • Be working for, or accepted employment with, employer enrolled in USCIS’s E-Verify program

  32. Cont. OPT STEM Extension • Report to the DSO regarding changes in the program or address • Properly maintain status in the US

  33. When to Apply for OPT STEM Extension • The student must apply before the current post-completion OPT expires. • If a student timely files the I-765, but the OPT expires prior to the decision, the student’s OPT is extended automatically.

  34. Requirements Post Extension Approval • The student must report to the DSO by email, within 10 days, any change in: • Legal name • Residential and mailing address • E-mail address • Employer name • Employer address • Job title or position

  35. Requirements Post Extension Approval • Supervisor name and contact information • Employment start date • Employment end date • The student must report to the DSO every 6 months by email confirming the information (even if no changes)

  36. Requirements Post Extension Approval • The requirement to report continues even past the 17-month OPT extension if the student’s OPT is further extended by the cap-gap extension.

  37. E-Verify • Free, internet-based system operated by the Social Security Administration and USCIS that allows employers to determine employment eligibility of newly-hired employees • Electronically compares information on the Form I-9 (employment eligibility verification form) with records in the SSA and DHS databases

  38. Cont. E-Verify • It is a flawed system with false positives for US citizens. • Approximately 33,000 employers (or 1% of all employers) are currently enrolled. • This requirement will present a substantial hurdle for many F-1 students seeking OPT extensions.

  39. Hidden “Stick” in New OPT Rules • The F-1 student may not aggregate more than 90 days of unemployment during the first 12 months in OPT. • The F-1 student may not aggregate more than 120 days of employment during the entire 29-month, extended OPT period.

  40. Link to New OPT Rules • “Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions,” April 8, 2008: http://edocket.access.gpo.gov/2008/E8-7427.htm

  41. 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.

  42. Cont. Cap Exemption • If not subject to the cap then the H-1B petition can be filed and the employment may commence at any time during the year.

  43. Changing Status from F-1 to H-1B Cont. Cap Exemption • Cap exempt petitions and employers include: • Any alien counted against the cap within the past six years

  44. Changing Status from F-1 to H-1B Cont. Cap Exemption • J-1 who has obtained a waiver through the State 30 program • Institutions of higher education • Nonprofit entities affiliated with institutions of higher education • Nonprofit or governmental research organizations

  45. 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

  46. Filing Fees and Attorney Fees • The employer must pay certain fees (ACWIA, fraud) • Certain employers are exempt from those fees

  47. 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

  48. Post-filing Issues

  49. Portability • H-1B change of employer petitions • The employee can commence employment with the new H-1B petitioning employer upon the filing of an H-1B petition.

  50. Post-filing Issues Admission and Extension • H-1B status granted for up to three years at a time and for a maximum of six years. • H-1B status can be extended beyond six years if the process for legal permanent residency through an employer has reached a certain stage.