Filing Academic H-1B
Region VII NAFSA 2008
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
Lecture/Exercises & Case Studies
Intro to H-1B
Information Gathering: Employer,
Prevailing & Actual Wages
I-129 and putting it all together
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
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
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.
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.
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).
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
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.
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
• 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!
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
(1) A baccalaureate or higher degree or its equivalent is
normally the minimum requirement for entry into the
(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
Actual Wage – 20 CFR 655.731(a)(1)
• SESA Florida –
Online Wage Library
Approval notice received
when someone applies
for a change of
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
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,
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) www.uscis.gov
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 www.travel.state.gov
American Council on International
Personnel (ACIP) www.acip.com
H-1B Handbook by Austin T.
Fragomen, Jr., Careen Shannon and
Daniel Montalvo (published by
Employ Florida Marketplace