Filing Academic H B Petitions Day Trader by mikeholy


									Filing Academic H-1B
  Region VII NAFSA 2008
       Atlanta, GA
      October 26-27
   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
   H-1B processing
   Case Management
   Institutional Policy
   Lecture/Exercises & Case Studies
   Intro to H-1B
   Information Gathering: Employer,
    Job, Employee
   Prevailing & Actual Wages
   LCA
   I-129 and putting it all together
   Inspection Files
   Employment Issues
   Alternatives
   Alligators
    Day II
   More Alligators
   Institutional Policy, Managing
   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
    What Are Other Parameters of the
   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
   H1B’s are limited by strict fiscal year quotas.
   The H1B beneficiary may have ―dual intent‖.
         What Are the Employer’s
   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
    • 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
       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
    • Exemptions: K-12, higher ed, affiliated
      entities, teaching hospitals, non profit research
      organizations and government research
    • 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
        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
   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
    --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
   Many K-12 schools, state agencies
    enjoy such affiliation.
   Look for or create written
             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
     • Affiliation of non profit with institution of
       higher ed? Create/firm up an affiliation?
       Possibilities: K 12 schools; state
     • 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
   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.
   Actual Wage – 20 CFR 655.731(a)(1)
   Prevailing Wage
    • SESA Florida –

    Online Wage Library
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
     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
   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
      Other Alternatives to H1B

   O alien of extraordinary ability,
   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.
   Regulations at 8 CFR 214.2(h)

   Dept. of Labor regulations 20 CFR 655 and 656

   Dept. of Labor Foreign Labor Certification

   Agency for Workforce Innovation

   Prevailing Wage research

   Dept. of State
   American Council on International
    Personnel (ACIP)
   H-1B Handbook by Austin T.
    Fragomen, Jr., Careen Shannon and
    Daniel Montalvo (published by
   Online LCA
   Employ Florida Marketplace
   PERM

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