Practical Steps to Acquiring International Interns & New Hires A GBC Presentation by: Ryan Lamb
Students – OISS is here to help! • Maintain frequent contact with MSU's Office of International Students & Scholars. • OISS is happy to assist and answer questions that you may have. 105 International CenterE. Lansing, MI 48824Ph: 517.353.1720Fax: 517.355.4657E-mail: firstname.lastname@example.org
Employers – placing a great hire is your primary goal. • Please consider MSU’s talented international students & alumni. • A good long-term hire is a great business asset, regardless of that applicant's visa status or short-term employment eligibility. • Visa options quickly expand upon presentation of your offer of employment.
Practical Options of Mutual Benefit • My goal today is to: • Provide you with a brief introduction to common visa options • Demystify the visa application process • Increase your comfort level in expanding your target market of potential employees.
Work Authorizations for F-1 Students and recent graduates: • Curricular Practical Training (CPT) • Optional Practical Training (OPT) • "Cap Gap" OPT extensions for H-1B Applicants
Curricular Practical Training (CPT) • OISS may authorize CPT for an activity that is "an integral part of an established curriculum," including a work/study program, an internship, cooperative education, or other required internship or practicum offered collaboratively between MSU and an employer.
Curricular Practical Training (CPT) (cont.) • Prerequisite • Student must have been enrolled for at least one full academic year. • Job Offer Required • No Employment Authorization Document (“EAD” or work card) Required • The student will request an updated Form I-20, with a CPT endorsement, from OISS – this serves as employment authorization.
Optional Practical Training (OPT) • 12 months • Students may obtain up to 12 months of OPT for each higher level of education (i.e. bachelor's, master's, doctoral). • “Post-completion" OPT • Available after completion of all degree requirements (except thesis, dissertation, or equivalent).
Optional Practical Training (OPT) (cont.) • No Job Offer required. • Time Limits (Post-Completion): • Start Date must be within first 60 days of completion of student's academic program. • End Date must be within 14 months of completion of the academic program. • Documentation – EAD required • File Form I-765 with U.S. Citizenship & Immigration Service (USCIS)
OPT – STEM Extensions • Degrees in Science, Technology, Engineering, or Mathematics (STEM) • Only 1 STEM extension permitted • 17 additional months (up to 29 months total) • Update I-20, with STEM Extension • File I-765 with USCIS • Employer must be enrolled in E-Verify
“Cap Gap” OPT Extensions for H-1B Applicants • The “Cap” often results in a Gap between the expiration of a student’s OPT, and her ability to start on H-1B. • (the Cap is further explained during H-1B discussion) • If your OPT expires between April – Sept., and your H-1B won’t commence until Oct. 1, what to do? • Relief arrives in April 2008 with issuance of the “cap gap rule”
Cap Gap Relief • Automatically extends visa status and employment authorization until Sept. 30 for timely filed H-1B Applicants • Although automatic, obtain updated I-20, with cap gap extension • Travel Restriction – do not travel abroad during cap gap.
H-1B Visa – Employment in a Specialty Occupation • A “Specialty Occupation” is one that requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent. • Licensure – if required by state to practice, the beneficiary must possess the requisite license, or an interim permit, if available.
H-1B – the “Cap” • 65,000 Visas available + • 20,000 Visas for U.S. master’s degree or higher (the “Advanced Degree Exemption”)
H-1B – the “Cap” (cont.) • Prior to Recession, Cap Oversubscribed Lottery for Visas • After Recession, Cap reached: • FY 2012 – November, 2011 • FY 2011 – January, 2011 • FY 2010 – December, 2009
Cap Planning – Filing & Commencement Dates • FY 2013 – start date of October 1, 2012 • FY 2013 – earliest filing date April 1, 2012 • Cap Planning – plan on filing on April 1 • Cap Season for preparing filings is Feb – Mar - start now!
H-1B Features • Duration = 3 years + • (or Less than 3 years, if Employer requests – e.g. grant authorizations of limited duration) • Extension of 3 years • Portability – ability to transfer employment • Dual Intent: • You can pursue permanent status without violating your visa • You can adjust to permanent status without leaving the U.S.
H-1B – Where to Begin? • Employers – prepare a Job Description for the position offered. • Students – seek Job Offers • Self-Employment – not generally a viable option (may be possible in minority ownership or controlled employment circumstances)
H-1B – the Labor Condition Application (LCA) • LCA approval is a prerequisite to H-1B • The LCA requirement is the result of congressional compromise • As a condition of offering H-1B visas, domestic labor market protections were mandated
H-1B – the Labor Condition Application (LCA) (cont.) • Employer undertakes 2 Primary Steps: • Prevailing Wage Determination (PWD) – obtain a Prevailing Wage Determination (i.e. government’s opinion of a fair wage) for similar occupations • If Prevailing Wage is greater than the offered wage, Employer can: • challenge the determination, or • increase the offered wage • File LCA with the U.S. Department of Labor (DOL)
LCA – Employer Attestations / Obligations • Employer attestations (x4): • It will pay the greater of (i) actual wages paid to other similarly situated employees, or (ii) the Prevailing Wage (the “Required Wage”). • No adverse affect on working conditions of workers similarly employed in area. • No current strike or labor dispute at place of employment. • Posted notice (similar to Wage & Hour postings) of the H-1B employment in at least 2 places for a period of 10 business days (if unionized, provide notice to bargaining representative)
LCA – Employer Attestations / Obligations (cont.) • Public Access File – Employer must create and maintain a public access file documenting LCA compliance for each H-1B case.
H-1B Employer - Export Control Attestation • In the United States, exporting is a privilege and not a right. • 2 primary legal mechanisms for controlling export of sensitive technology or technical data: • The Export Administration Regulations (EAR) under the U.S. Department of Commerce • The International Traffic in Arms Regulations (ITAR) under the U.S. Department of State • Deemed Export – in addition to prohibiting actual export of sensitive information, permitting an H-1B employee, in the U.S., access to such information is “deemed” to be an export to that person’s home country.
H-1B Employer - Export Control Attestation (cont.) • Employer Certification – Employers are required to certify that: • Employer has reviewed EAR and ITAR and determined that: • No Export License is required; or • An Export License is required and Employer will prevent access until it has proper license approvals.
H-1B Employer - Export Control Attestation (cont.) • Controlled Technology and Technical Data – while USCIS claims only a small percentage of employers have controlled technology concerns, the controlled list can be surprisingly broad, especially for wider net of “dual-use” items under EAR. • Employer and Employer’s Immigration Attorney should consult with an International Trade Attorney with EAR/ITAR expertise. • Jean G. Schtokal – International Business & Trade Expert
H-1B Timing • Start Early! File I-129 on April 1. Otherwise, race against Cap. • Note that these processing times do not include employer and attorney document preparation time • Prevailing Wage Determination ~ 3 – 7 business days • LCA Processing ~ 5 – 7 business days • I-129 Petition for H-1B Visa ~ 2 months • Premium Processing ~ 15 days • Subject to Request for Evidence delays • Visa Application (if out of Country) – varies by Consulate ~ 2 weeks – 2 months • Start on October 1
Who Pays the Fees? • Employer pays the filing fees. • Either party may pay the attorney’s fees. • Employee may reimburse certain portions of the filing fees or attorney’s fees. • If Employee pays any of the fees, [(Salary – Fees paid) must remain > Required Wage] • Employee can pay the Premium Processing Fee, without limitation.
H-1B Fees • Typical Fees for Standard Cases: • USCIS Filing Fees = $1,575 base • +$750 if > 25 employees • +$1,225 for Premium Processing Service • Attorney’s Fees ~ $4,500 – 6,500
Employer Post-Employment Obligations • Maintain Public Access File for at least 1 year. • For dismissals prior to the end of the H-1B term, Employer must provide: • Notice to Employee • Notice to USCIS • Payment for Employee’s transportation home
Primary Alternatives to H-1B: • Family-based Legal Permanent Residence (“Green Card”) • Investors: • EB-5 Immigrant Investor • E-2 Treaty Investors • Other Temporary Employment Categories: • TN Professionals (NAFTA) • E-2 Treaty Traders • L-1 Intracompany Transferees
EB-5 Immigrant Investor • Three options: • Invest $1M and hire 10 U.S. Employees (within 1st two years) • Invest $500K and hire 10 U.S. Employees in a “Targeted Employment Area” (high unemployment or rural areas) • Invest $500K in a Regional Center and create 10 U.S. jobs (directly or indirectly) • Visa = Legal Permanent Residence (Green Card)
E-2 Treaty Investors • Foreign national investor from a listed E-2 treaty country • Investing a substantial amount of capital (typically minimum floor of at least ~ $50K – 100K) • Entering the U.S. solely to develop and direct the operations of the enterprise • Enterprise at least 50% owned by foreign nationals of the treaty country • Visa = 2 – 5 years + possibly indefinite renewals