The Coveted H1B: Convincing the Employer to Sponsor

1
The Coveted H1B Convincing the Employer to
Sponsor

• Presented by
• David A.M. Ware, attorney at law
• www.david-ware.com. dware_at_david-ware.com
• 800 537 0179
• Offices Across the Gulf South National Practice

2
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.

3
What is An H1B Anyway?

• It is commonly used by international students,
  who are first given a one year period of optional
  practical training (OPT), if an F student, or 18
  months academic training (AT) if a J (exchange
  visitor) student.
• Ideally the OPT or AT should segue seamlessly
  into the work visa.

4
What Are the Other Parameters of the H1B?

• Employment is limited to the employer(s) who
  petition(s) for the student. May hold more than
  one H1B at same time.
• Employment is generally limited to six years with
  ALL employers (unless employment-based PR 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.

5
What Are the Employers Obligations in the
Process?

• Must agree to employ beneficiary as set out in
  the petition (no fraud!).
• Must need the services of the student (no uncles
  with corner stores!).
• 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.
• Basically, this means that a competitive wage
  must be offered.

6
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.

7
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 (but not
  enforceable).

8
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 Vermont Regional Service Center of USCIS.
• 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.

9
What Are the Pitfalls I Should Know About?

• Horrible quota problems!
• Currently H1Bs are limited to about 85,000.
• 58,200 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 FY).

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Quota Pitfalls

• Exempt from the quota are persons already counted
  against it in H status, as well as persons who
  work in higher ed and affiliated 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.

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Current Quota Statistics

• FY 2007 non-Masters quota of 58,200 exhausted
  5/26/06.
• New non-Masters quota opened 4/1/06, for
  employment beginning on or after 10/1/06.
• FY 2007 US Masters quota exhausted 7/25/06.
• Petition can be made for FY 08 numbers beginning
  4/1/07, for employment to begin on or after
  10/1/07.
• Thus, as soon as practicable after beginning
  OPT/AT employment, employer and MUST begin H1B
  petitioning process.

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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 EVs (30 day)
  grace period.
• In years prior, Legacy INS 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.

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Quota Example

• Li Lis F 1 OPT began May 15, 2006 and ends May
  14, 2007. She finds a suitable job and the
  company petitions for her H1B on April 1, 2007.
  Since the FY 07 (10/1/06 to 9/30/07) for US
  Masters recipients ran out on 7/25/06, her
  employer asks for a visa number from the new FY
  08 quota for work beginning 10/1/07.

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Quota Quandaries

• But Li Li thus will have a gap in status from
  7/14/07 (end of 60 day grace period) until
  10/1/07.
• Whats she to do?
• CANT WORK after 5/14/07!
• Apply for change of status to B 2? (logistics
  issues)
• Apply for change of status to dependant (if
  married)
• Apply for admission to a new program and new I 20
  for Fall 2006? (money and intent issues)
• Leave the US? (all sorts of issues)

15
Any Solution in Sight?

• Included in comprehensive immigration legislation
  which has passed the Senate is a provision to
  recapture 30K H1B numbers from each year
  beginning in 1991.
• Fees would increase for such recaptured numbers.
• House has not yet passed such a measure because
  of opposition to legalizing undocumented workers.
  H provision may pass as stand-alone bill some
  time in the spring.

16
Pitfalls Make Sure the Position Requires a
Degree, Pays PW, Really Exists

• Many beginning positions in business do not
  require a degree eg, sales, management trainee
  slots.
• Many entry level jobs pay partly or solely on
  commission. Commission or sales bonuses generally
  cannot be included in the wage computation.
• Beware of make work or make believe jobs from
  friends or relatives. Pay stubs, W 2s will be
  required when you go abroad for visa issuance,
  apply for future immigration benefits!
• Also beware of fly-by-night consulting companies
  which may bench you until they place you in a
  job.

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Analysis Does Job Require a Four Year Degree?

• Does the job require the application of
  theoretical and practical knowledge typically
  acquired in a relevant four year degree program?
• Has the employer consistently required a minimum
  of a Bachelors in particular major(s) for
  position? Or is the requirement simply an
  employer preference? Or is the employer simply
  making up the requirement to get you an H1B?
• What are industry standards for this type of job?
  Check ads on internet, DOLs Occupational Outlook
  Handbook.
• Is the salary commensurate with a
  professional-level position?

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Pitfalls Entry Level Business Positions

• Example 1 Jo?o is offered a management trainee
  position at Hometown Bank. He is told by the HR
  Director that for 18 months, he will cycle
  through all departments of the bank, and at the
  successful completion of this period, will become
  a Mortgage Loan Analyst, at a salary of 60K.
  During the training period, he will only be paid
  25K. Ms. HR says that all prior trainees have
  possessed an MBA.
• Can Jo?o get an H1B to begin his training?

19
Pitfall Entry Level Positions

• Emine is offered a Sales Associate position at
  Needless Markup department store. Her salary will
  be 20K. She is told that sales associates are
  often promoted from within, and that with her
  academic background (MBA, BS in Fashion
  Merchandising), she could soon rise to Buyer or
  even Sales Manager.
• Can Emine get an H1B with this offer?

20
Pitfall Entry Level Positions

• Arvind has an MBA and BSME. He is offered a job
  as Technical Sales Associate by a company which
  manufactures elevators. He is to sell to
  international customers, as well as to assist
  them with after sale technical questions
  regarding the companys products. His salary will
  be 40K. He is told that eventually he could rise
  to Regional Sales Manager or Technical Sales
  Manager.
• Does this offer hold H1B possibilities for
  Arvind?

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Pitfall Entry Level Positions

• Georgi has a wealthy friend who wants to open a
  Cesare Paciotti shoe store franchise on Madison
  Avenue in New York.
• He has known Georgi for several years and is the
  only one he trusts to run the store. With shoes
  retailing from 400 to over 1000, the friend
  wants the highest possible level of service for
  customers.
• Georgi will have a build out budget of 1
  million 20 full and part time employees,
  inventory worth 1.5 million, and an annual
  turnover of 5 million.
• Georgi will manage personnel, devise marketing
  campaigns, manage inventory, prepare financial
  projections, and oversee the entire operation.
  His salary will start at 80K.
• H1B for Georgi?

22
Pitfall Checking Out the Buyer, ie, the
Employer Seeking Your Services

• Before the interview Research the company. If
  officers or other employees are listed in
  literature or on website, see if there are
  obvious immigrants among high ranking personnel.
• Try to identify, beforehand if possible, who will
  be conducting your interview and his/her function
  in company.

23
Pitfall Meeting the Buyer

• When meeting the interviewer, ask for his or her
  card, if available, and look at it carefully.
  Note the persons title, and what that implies
  about his or her function.
• You will find that functional managers and others
  within your area of expertise may have a very
  different point of view than persons with a
  recruiting or human resources function.

24
Pitfall Meeting the Buyer

• Persons who actually manage or carry out work in
  your area are usually most concerned with the
  applicants skills, drive, and ability to really
  get the job done.
• Recruiters and HR people often are more concerned
  with process, rules, and filling holes in the
  company.

25
Pitfall Meeting the Buyer

• If the interviewer is recruiter/HR, try to find
  out who youd actually be working for or who runs
  the office/division where the opening exists.
• In this way, if you are rebuffed, you may be able
  to contact the manager directly, or use
  networking to do so, to try to overcome the
  interviewers objections to hiring you. This is
  particularly the case if told We dont sponsor
  for work visas.

26
Pitfall Meeting the Buyer

• If confronted with we dont sponsor, after you
  identify the function of the individual, then try
  to find out WHY.
• Sometimes the individual doesnt know, the policy
  was established by someone whos no longer with
  the company, etc.
• If you decide to bypass the interviewer, and try
  to go inside the company, its very important
  to know the why of the no sponsor rule.

27
Pitfall Know Your Buyer

• All companies have different styles, rules, and
  methodologies with respect to hiring.
• Some strictly hire through recruiters/HR.
• Others hire top down that is, by
  managers/bosses directly identifying/hiring
  talent, or directing others to do so.
• Others hire bottom up, by requiring relatively
  new hires to go on recruiting trips.
• Finding out how the company recruits is very
  useful before, or even during, the interview.
• If you decide to try to go inside the company
  after being rebuffed, this has to be done with
  great care, and should usually be done through
  contacts you have made.
• But, persistence often pays off.

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Pitfalls Overcoming Buyers Objections

• Employer thinks the process will get them in
  trouble with immigration (not unless they have
  otherwise shady practices or lie in the
  paperwork).
• Employer doesnt want to reveal financial
  information to USCIS (IRS has already reviewed
  this information USCIS not a tax enforcement
  agency neither you nor attorney need see
  information can be provided in sealed envelope).
• Employer thinks they have to pay legal fees (not
  unless this would push employee below required
  wage).

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Pitfalls Buyers Objections

• Employer thinks its too much trouble,
  paperwork (a few signatures, a ten day posting,
  no advertising attorney can simplify process).
• Employer worries about posting the employees
  wage (post a range!).
• Employer feels they receive enough resumes from
  US workers no need to apply for a foreigner
  (didnt they ever hear of the immigrant work
  ethic? try to identify immigrants within the
  company).

30
Pitfalls Buyers Objections

• Employer worries that sponsorship may constitute
  contract of employment (no, but if theyre
  worried, do a memo of understanding both sign).
• Employer worries that employee is later going to
  ask for PR and leave the company theyve been
  burned before (Sign a one way contract
  employee has to repay legal fees if leaves before
  a certain date but employer retains right to
  employ at will).

31
Pitfalls Buyers Objections

• Employer doesnt want to pay ACWIA and fraud fees
  and wants employee to pay them.
• There are penalties for employee payment of ACWIA
  fee.
• No apparent penalty for employee paying fraud
  fee.
• These fees are less than what the employer would
  pay a recruiter.

32
Pitfalls Buyers Objections

• Employer doesnt want to pay required wage and
  wants to have side deal with employee to pay
  less or pay part in commissions/bonuses.
• There are severe penalties, including back pay,
  fines up to 5000 per incident, and prohibition
  from petitioning for any employment based
  nonimmigrant/immigrant for up to two years for
  this practice.
• Pay stubs, W 2s are often requested at visa
  interviews, and in connection with applications
  for immigration benefits.

33
Are there H1B Alternatives?

• 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. But MBAs
  beware Management Consultant is carefully
  scrutinized generally must be independent
  contractor. TN given in one year increments
  requires residence abroad (no dual intent).

34
H1B Alternatives?

• 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.

35
H1B Alternatives

• E 1/E 2 if your 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 you were employed by a company
  abroad for at least a year before coming to the
  US, and they wish to employ you in US work
  permit for spouse.
• R-1 possible if job offer has a significant
  religious component.

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H1B Alternatives?

• There are many other nonimmigrant visa
  classifications, some of which may be appropriate
  to recent graduates in rare situations. These
  should be explored with an experienced
  immigration attorney.
• If your employer does not have an immigration
  attorney, choose with care!

37
The Coveted H1B Convincing the Employer to
Sponsor

• Presented by
• David A.M. Ware, attorney at law
• www.david-ware.com. dware_at_david-ware.com
• 800 537 0179
• Offices Across the Gulf South National Practice