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Filing Academic H-1B Petitions Region VII NAFSA 2008 Atlanta, GA October 26-27 Presenters David Ware, David Ware & Associates, Metairie, LA, Jackson, MS, Pensacola, FL, Baton Rouge, LA Terry Eiesland, Emory University Marc Amos, Kuck Casablanca, Atlanta, GA, Gainesville, GA, Dalton, GA, Miami, FL Kristen Hagen, Florida State University Objectives H-1B processing Case Management Institutional Policy Lecture/Exercises & Case Studies Outline Intro to H-1B Information Gathering: Employer, Job, Employee Prevailing & Actual Wages LCA I-129 and putting it all together BREAK Outline Inspection Files Employment Issues Alternatives Alligators Day II More Alligators Institutional Policy, Managing Expectations Q&A, Exchange of Ideas What is An H1B Anyway? It is the principal immigration status available for persons temporarily working in professional level jobs (―specialty occupations‖) in the US. It generally requires that the employee have at least a four year degree or equivalent AND that the position require a minimum of a bachelor’s degree. Three years’ professional level experience may substitute for each year of Bachelor’s lacking. What Are Other Parameters of the H1B? Employment is limited to the employer(s) who petition(s) for the employee. May hold more than one H1B at same time. H1B may be part time. Employment is generally limited to six years with ALL employers (unless employment-based permanent residence begun by end of 5th year). Employment must be directly related to degree program. H1B’s are limited by strict fiscal year quotas. The H1B beneficiary may have ―dual intent‖. What Are the Employer’s Obligations? Must agree to employ beneficiary as set out in the petition. There must be a logical nexus between the institution’s needs and the nature of the position. Must agree to pay higher of actual or prevailing wage. • Actual wage: wage paid to other similarly employed and similarly qualified workers at same worksite. • Prevailing wage: weighted mean or median wages for similar positions in geographic area of employment. Note: separate DOL database for academia. • Safe harbor: only if wage obtained from DOL. • Basically, this means that a competitive wage must be offered. Employer’s Obligations? Must be no strike or lockout. Must notify other workers of terms of job (10 day posting or letter to union). Must agree to pay certain fees to USCIS: • ACWIA fee: $1500; $750 if 25 or few FT employees. • Exemptions: K-12, higher ed, affiliated entities, teaching hospitals, non profit research organizations and government research organizations. • Anti fraud fee: $500. No one exempt. Employer’s Obligations? Must agree to employ H1B only in geographic location(s) set out in labor condition application. Must agree to pay return transportation to country of nationality if H1B terminated before end of H period (but not enforceable). What’s Filed and When? First is Labor Condition Application. Filed electronically with Department of Labor. Next is H1B Petition, together with LCA, evidence of qualifications, and description of job, filed at either VT or CA Regional Service Center of USCIS, depending on place of employment. If employee maintaining lawful status in US, status is changed to H1B, along with family members. If outside US, or traveling following change of status, must obtain H1B visa at US consulate. Any Pitfalls? Horrible quota problems! • Currently H1B’s are limited to about 78,000 plus leftover H1B1 numbers. ~58,000 for those with no US earned Master’s. --20,000 for those with US earned Master’s or higher. ~6,800 reserved for H1B1 for citizens of Chile, Singapore (unused numbers ―fall back‖ during first 45 days of new FY— only 589 last year). Quota Pitfalls Exempt from the quota are persons already counted against it within past six years, as well as persons who work in higher ed and affiliated nonprofit entities, non profit research and government research organizations, and physicians granted a waiver of the two year home residence requirement for J’s. Note that most govt. entities and non profits are NOT exempt from quotas. An H employee for a quota-exempt employer was not counted against the quota, unless H petition approved prior to October 20, 2000. Affiliation to Higher Ed Many nonprofits have some affiliation to higher ed. The key to getting an H outside the quota may lie in identifying such affiliation. Many K-12 schools, state agencies enjoy such affiliation. Look for or create written agreement. Quota Statistics FY 2008 regular quota exhausted April 3. All cases received April 2 and 3 were placed in a lottery. About one in four chance of selection. US Master’s quota exhausted April 30. This means most people will be locked out of H until October 1, 2008. Earliest application now for quota: April 1, 2008, for work to start October 1, 2008. Quota Pitfalls? Major problem arises when OPT or AT will end prior to the beginning of H1B petition approval, plus the student’s (60 day) or exchange visitor’s (30 day) grace period. In years prior, immigration generally published ―gap rule‖ allowing J’s and F’s to maintain status during this period, remain in the US, but not work. For several years: NO GAP RULE. H Strategies for Student Advising ―Gap‖ strategies: • Time grad for August or December • Change to B 2 • Enroll for new course of study • Leave US • Work for company abroad • Change to dependant status • Apply before completion of grad degree if undergrad relevant to job • File for permanent residence through employer • H 3 and J trainee categories • Other, similar: H1B1, E 3, TN, E 2, L 1, R 1, O 1 H Strategies for Student Advising Avoiding the quota: • H in last six years? • Concurrent employment: cap/non cap employers • Affiliation of non profit with institution of higher ed? Create/firm up an affiliation? Possibilities: K 12 schools; state agencies. • Non profit research organization? • Working ―at‖ rather than ―for‖ institution of higher ed? Grad Date and H1B Cycle Current H1B quota problems make May graduation very difficult, August less so and December ideal. Why? May 15, 2007: OPT until following May 14; no H1B until October 1, 2008. GAP! August 15: OPT until following August 14; no H1B until October 1, 2008. POSSIBLE GAP! December 15: OPT until following December 14; student applies for H1B 4/1/08; gets it 10/1/08. NO GAP! Specialty Occupation 8 CFR 214.2(h)(4)(iii)(A) • Standards for specialty occupation position. To qualify as a specialty occupation, the position must meet one of the following criteria: • (1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; • (2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; • (3) The employer normally requires a degree or its equivalent for the position; or • (4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. Wages Actual Wage – 20 CFR 655.731(a)(1) Prevailing Wage • SESA Florida – http://www.floridajobs.org/WPS_ALC/pr ev_wages.html Online Wage Library http://www.flcdatacenter.com Form I-797 Approval notice received when someone applies for a change of nonimmigrant status. 1. Petitioner’s/Applica nt’s Section 2. Alien’s Evidence of approval 3. New I-94 card What if Size H Doesn’t Fit? TN (Treaty NAFTA) for citizens of Canada and Mexico only. Occupations listed at 8 Code of Federal Regulations Sec. 214.6(c) generally require a minimum of Bachelor’s degree. TN given in one year increments; requires residence abroad (no dual intent). Not Size H? H1B1 visa for Chile, Singapore: very similar to normal H1B, except granted in one year increments, requires residence abroad (no dual intent). E 3 for Australian citizens; again very similar to H1B; minimum Bachelor’s, dual intent ok; spouses may work. H-3 trainee. 2 yrs max; training must be for job abroad. J-1 trainee. 18 mo. max; looser than H 3, but many J sponsors will not sponsor if you are in US. Not Size H? E 1/E 2: if person’s country of nationality has an trader/investor treaty with US, investment of as little as 50K in a job-creating business can mean a visa for life, work permit for spouse. L 1A/L 1B: if person was employed by a company abroad for at least a year before coming to the US, and company abroad wish to employ him/her in US; work permit for spouse. Caution: highly technical. R-1: possible if job offer has a significant religious component. B-1 business visitor: only possible if employed outside US, no remuneration in US except expenses, and product/service is made/rendered outside US. VERY LIMITED UTILITY. Other Alternatives to H1B O alien of extraordinary ability, achievement A diplomat G international organization representative I international media representative Proceed directly to permanent residence? Careful if both employee and spouse born in China or India; or if job requires less than MS or BS plus five years exp. Louisiana Yard Dog (Alligator) Dr. Don Tnowitall, in valid H status and having been approved for advance parole via an employment based application for adjustment of status, travels to visit his elderly mother in Professorlandia, and since that country’s US consulate is renowned for its lines, he returns on AP rather than get a new H visa there. He has no EAD. Nice Puppy! No Biting! Q: Does Dr. T need an EAD to continue to work for your institution on return? Q: His H petition (and previous I 94) is set to expire in one month. • Can you extend him? • Should you extend him? • How do you do this? Q: Same questions for wife, who is using an EAD. Resources Regulations at 8 CFR 214.2(h) www.uscis.gov Dept. of Labor regulations 20 CFR 655 and 656 http://www.foreignlaborcert.doleta.gov/reg.cfm Dept. of Labor Foreign Labor Certification http://www.foreignlaborcert.doleta.gov Agency for Workforce Innovation http://www.floridajobs.org/WPS_ALC/prev_wage s.html Prevailing Wage research http://www.flcdatacenter.com Resources Dept. of State www.travel.state.gov (visas) American Council on International Personnel (ACIP) www.acip.com H-1B Handbook by Austin T. Fragomen, Jr., Careen Shannon and Daniel Montalvo (published by Thomson/West) Resources Online LCA http://www.lca.doleta.gov Employ Florida Marketplace https://www.employflorida.com PERM www.plc.doleta.gov USCIS www.uscis.gov THANK YOU!
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