h 1 b visas proving your case 2015
TRANSCRIPT
Proving and Winning Your H-1B Case in 2015
& THOMPSON
JANUARY 29, 2015
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AgendaH-1B Visa Overview
Proving Your H-1B Case
F-1 Student Cap-Gap Rules
Other Visa Options
Post-Approval Alerts
H-1B Visa Overview
H-1B Nonimmigrant Visas
A nonimmigrant (temporary) visa that allows a non-citizen to be employed in the United States for up to 6 years in a “specialty occupation” for a specific employer (“petitioner”).
What is a Specialty Occupation?
An occupation that requires highly skilled specialized knowledge and
A bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation
Employee Qualifications
Have completed a U.S. bachelor’s or higher degree (or its foreign equivalent) or
Have education, training, or experience in the specialty equivalent to the completion of such degree (3:1 rule) and
Possess full state licensure if required to practice in the state of employment
H-1B Numerical Limitations - “H-1B Cap”
Quota of 65,000 new H-1B visas per fiscal year (except 6800 Free Trade Act (FTA) nationals)
20,000 per fiscal year for persons who hold US Master’s degrees or higher
Applies to first-time H-1B or previously cap-exempt H-1B employees
February Prepare petition
April 1 Apply for
H-1B
April 7 Lottery cutoff
May 1 Acceptance or Rejection
Notices
July Decision Notices
2016 FY H-1B Cap Timeline
H-1B Cap Exempt Categories
Employers Universities/Colleges
Non-profit affiliates of universities/colleges
Government or non-profit research facilities
Employment For profit employment at universities or their non-profit affiliated facilities
Physicians Physicians who received government-sponsored J-1 waivers of two year home residency requirement
Proving Your H-1B Case
1 Specialty Occupation
2 Employee Qualifications
3 Employer-Employee Relationship
4 Valid Job Offer and Company
5 H-1B Cap-Exemption
Detailed Job Description
Daily duties and percentages of time spent on duties
Similar positions in the industry or in your business
Proof of Specialty Occupation
Organizational chart with job descriptions of other positions
Expert opinions and reports
Professional associations
Proof of Specialty Occupation (cont.)
Proof of Employee Qualifications
Diplomas and Degrees
Employment Experience Letters
Credential Evaluation or Expert Opinion
Professional License, if applicable
Employer- Employee Relationship
Employment Contract/Offer Letter
Employee Manual/Benefits Summary
Performance Review
Client Contracts/Work Orders
Pay Records/W-2/Work Schedule
Proving Valid Job Offer and Position
Federal Tax Returns
Unemployment Tax Reports
Organizational Charts
Payroll Records
Company History
H-1B for the Self-Employed or Business Owners
Employer-Employee Relationship
Company Structure – Corporation/LLC
Board of Directors - hire, fire, or otherwise control owner
Specialty occupation required
http://fedgov.dnb.com/webform
Validation Instrument for Business Enterprises (VIBE) Program
VIBE allows USCIS to electronically receive petitioning company information from D&B
Business activities
Financial standing, e.g. credit rating
Number of employees, both on-site and globally.
Relationships with other entities
Type of office, e.g. single office
Type of legal entity.
Company executives.
Date of establishment
Current physical address.
Proving H-1B Cap-Exemption
Higher Ed Public or Non-profit
Associate degree or higher
Proof of Accreditation
Non-Profit & Affiliated w/Higher Ed
501(c)(3) exemption letter
Agreement with Higher Ed, e.g. Clinical Training
Supporting letter from Higher Ed
Third-Party Employment
Agreement with Higher Ed or Non-Profit Affiliate Org
Supporting Letter from Exempt Facility
Educational or non-profit purpose
Proving H-1B Cap-Exemption (cont.)
As of March 2011, USCIS will honor previous determinations of cap exemption if employer provides:
A copy of the previously approved cap-exempt petition (relevant pages of the Form I-129 and pertinent supplements);
A copy of the Form I-797 approval notice (issued after June 6, 2006) for the affiliation-based cap exempt petition; or
Documentation previously submitted with a petition in support of the claimed cap exemption.
F-1 Student Cap-Gap Rules
Cap-Gap Rules for F-1 StudentsPrevents gap between F-1 expiration and H-1B start date, in most cases.
If student has active OPT, can work until September 30, 2015 and remain in U.S. until H-1B decision is made. If H-1B approved, student can continue or resume work using H-1B visa. If H-1B denied, 60 day grace period begins on date of denial.
If student has expired OPT and H-1B is filed before expiration of 60 day grace period, student can remain in U.S. until H-1B decision. No work authorization during this period. If H-1B is approved, student can begin work. If H-1B denied, student must leave the U.S.
Other Visa Options
TN – Trade NAFTA for Canadian and Mexican professionals
E-3 – Australian professionals
E-2 – Treaty investor essential personnel and managers
H-1B1- Professional from Chile and Singapore
J-1 – Exchange visitors for training
L-1- Transferees from foreign affiliate companies
O-1 – Extraordinary Ability professionals at the “top of the field”
F-1 OPT STEM extension – 17 month extension
Green card options - PERM labor certification, EB-1 extraordinary ability, national interest waiver, and others
Post-Approval Alerts
International Travel
Visa Processing at U.S. Embassy (www.usembassy.gov)
Administrative Processing Delays
Petition Returns
USCIS Audits
Random Selection
Unannounced Employer Site Visit
Email Demands for Documents
Preparing for a USCIS Site Visit
Step 1
Review the H-1B petition
Step 2
Prepare compliance evidence file for inspector
Step 3
Identify company representatives who will meet with auditors
Step 4
Establish site visit procedures for reception, clients, and H-1B employee
Employers
Take these steps immediately after the approval of your H-1B petition to prepare for a surprise site visit from the USCIS.
Potential Consequences of Negative Findings
Denial of Pending Petition
Notice of Intent to Revoke Previously Approved Petition
Revocation of Previously Approved Petition
Criminal Penalties
Civil Fines
Legal Notice
The information provided in this presentation is general in nature and should not be relied upon for specific situations. Because each case is different, you should consult with an experienced immigration attorney for your specific situation.
Prepare Now
Consult with an immigration attorney.
Gather necessary documents and information.
Prepare and conduct final review of H-1B petition.
File H-1B petition on April 1.
Questions? Comments?
Cowles & Thompson901 Main Street, Suite 3900
Dallas, Texas 75202214-672-2000 Telephone214-672-2020 Facsimile
www.badmuslaw.com