Filing Academic H1B Petitions

1
Filing Academic H-1B Petitions

• Region VII NAFSA 2008
• Atlanta, GA
• October 26-27

2
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

3
Objectives

• H-1B processing
• Case Management
• Institutional Policy
• Lecture/Exercises Case Studies

4
Outline

• Intro to H-1B
• Information Gathering Employer, Job, Employee
• Prevailing Actual Wages
• LCA
• I-129 and putting it all together
• BREAK

5
Outline

• Inspection Files
• Employment Issues
• Alternatives
• Alligators
• Day II
• More Alligators
• Institutional Policy, Managing Expectations
• QA, Exchange of Ideas

6
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 bachelors
  degree.
• Three years professional level experience may
  substitute for each year of Bachelors lacking.

7
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.
• H1Bs are limited by strict fiscal year quotas.
• The H1B beneficiary may have dual intent.

8
What Are the Employers Obligations?

• Must agree to employ beneficiary as set out in
  the petition.
• There must be a logical nexus between the
  institutions 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.

9
Employers 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.

10
Employers 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).

11
Whats 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.

12
Any Pitfalls?

• Horrible quota problems!
• Currently H1Bs are limited to about 78,000 plus
  leftover H1B1 numbers.
• 58,000 for those with no US earned Masters.
• --20,000 for those with US earned Masters or
  higher.
• 6,800 reserved for H1B1 for citizens of Chile,
  Singapore (unused numbers fall back during
  first 45 days of new FYonly 589 last year).

13
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 Js. 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.

14
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.

15
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 Masters 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.

16
Quota Pitfalls?

• Major problem arises when OPT or AT will end
  prior to the beginning of H1B petition approval,
  plus the students (60 day) or exchange visitors
  (30 day) grace period.
• In years prior, immigration generally published
  gap rule allowing Js and Fs to maintain
  status during this period, remain in the US, but
  not work.
• For several years NO GAP RULE.

17
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

18
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?

19
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!

20
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.

21
Wages

• Actual Wage 20 CFR 655.731(a)(1)
• Prevailing Wage
• SESA Florida http//www.floridajobs.org/WPS_ALC/p
  rev_wages.html
• Online Wage Library http//www.flcdatacenter.com

22
Form I-797

•  Approval notice received when someone applies
  for a change of nonimmigrant status.
• Petitioners/Applicants Section
• Aliens Evidence of approval
• New I-94 card

23
(No Transcript)
24
What if Size H Doesnt 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 Bachelors degree. TN given
  in one year increments requires residence abroad
  (no dual intent).

25
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 Bachelors, 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.

26
Not Size H?

• E 1/E 2 if persons 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.

27
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.

28
(No Transcript)
29
(No Transcript)
30
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 countrys US
  consulate is renowned for its lines, he returns
  on AP rather than get a new H visa there. He has
  no EAD.

31
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.

32
(No Transcript)
33
(No Transcript)
34
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_wages.html
  
• Prevailing Wage research http//www.flcdatacenter.
  com

35
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)

36
Resources

• Online LCA http//www.lca.doleta.gov
• Employ Florida Marketplace https//www.employflori
  da.com
• PERM www.plc.doleta.gov
• USCIS www.uscis.gov

37

• THANK YOU!