strategies for hiring outside of the h-1b cap!
TRANSCRIPT
How do I hire an employee who How do I hire an employee who requires a work visa when there are requires a work visa when there are
no H-1Bs available?no H-1Bs available?
Presented byRussell C. Ford, Esq.Graham [email protected]
AGENDAAGENDA
• Nonimmigrant Options
• Could you just consider a green card instead?
• Questions & Answers
NONIMMIGRANT STATUSNONIMMIGRANT STATUS
• Limited in Duration of Stay• Limited in Activities Allowed• Limited to Employer/Sponsor
WHAT IS THE H-1B CAP?WHAT IS THE H-1B CAP?
• The “cap” refers to any “new” H-1B, e.g., an individual that has not previously held H-1B status within the last six years and/or is not seeking a new 6-year period of stay after being outside of the U.S. for at least 365 days.
• H-1B Cap – 65,000 “Regular”/20,000 “Master’s Cap”• Institutions of Higher Education (or affiliated
non-profit entities) are exempt from Cap
F-1 STUDENTS: DO YOU MAINTAIN A F-1 STUDENTS: DO YOU MAINTAIN A RELATIONSHIP WITH A COLLEGE?RELATIONSHIP WITH A COLLEGE?• Performed on school premises (this
includes commercial enterprises that provide direct student services located on-campus) OR
• Performed at an off-campus location, which is educationally affiliated with the school.• “Educationally affiliated” is
defined as: “associated with the school’s established curriculum or related to a contractually funded research project at the post-graduate level” and “an integral part of the student’s educational program.”
• Limited to 20 hours per week (exception: 40 hours per week during regular school breaks/vacations).
• Cannot displace US Citizen worker.
F-1 STUDENTS: ARE YOU PROVIDING A F-1 STUDENTS: ARE YOU PROVIDING A PRACTICAL TRAINING OPPORTUNITY?PRACTICAL TRAINING OPPORTUNITY?
Curricular Practical Training (“CPT”): •Must be a full-time F-1 student;•Must have completed one academic year of study;•Must be directly related to the major area of study;•Utilized for alternative work/study, internship, co-op program, or “any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school.” •Students who have utilized 12 months or more of CPT or ineligible for Optional Practical Training.
F-1 STUDENTS: POST-GRADUATIONF-1 STUDENTS: POST-GRADUATIONOptional Practical Training (“OPT”):•Must be directly related to the major area of study;•Student must obtain authorization from the International Students Office through SEVIS and then apply to the USCIS for an Employment Authorization Document (“EAD”) – student cannot begin employment until the EAD has been issued; •Limited to 12 months of total OPT time whether used during, after or both (note – part-time OPT employment during the school year is deducted from the 12 months at only a ½ rate, i.e., 2 days of part-time would be deducted from the overall period as only 1 day of OPT).•If you are an E-Verify registered employer and the individual graduated from a STEM degree program, this could be extended an additional 17-month period.
J-1 EXCHANGE VISITOR EMPLOYMENTJ-1 EXCHANGE VISITOR EMPLOYMENT
• Work-authorized categories include professors, research scholars, trainee, specialists, interns
• J-1 Trainees• Pre- or Post-graduation• Up to 18 months
• J-1 Interns• Graduate of foreign degree
program with less than one yearof work experience; or
• 5 years of work experience• Dependents may apply for
work authorization
H-1B PORTABILITY: HIRING AN INDIVIDUAL H-1B PORTABILITY: HIRING AN INDIVIDUAL ALREADY IN H-1B STATUSALREADY IN H-1B STATUS
• H-1B worker may begin employment with new employer as soon as the H-1B petition is filed
• Broader vs. stricter interpretation of portability
• Pay stub = evidence of maintaining status
O-1 EXTRAORDINARY ABILITY
• Intended only for the top few in the field of expertise in the world
• Must have:• Major award or prize (Nobel,
Fields, etc.); OR• Documentation from 3 of 8
categories specified in the Regulations; OR
• Other “comparable evidence”• The job need not require
extraordinary ability• Initial O-1 period is 3 years, annual
extensions indefinitely thereafter in one-year increments (foreign national must continue to demonstrate extraordinary ability and achievements)
TN CLASSIFICATIONTN CLASSIFICATION
• Available only to Mexican and Canadian Citizens
• Specific list of occupations in NAFTA• One year initial admission – extensions can be
granted in one-year increments• Biggest obstacles: Demonstrating nonimmigrant
intent and “fitting” within defined occupations• Processing:
• For Canadian Citizens: Apply directly at Class A POE/PFI• For Mexican Citizens: Apply directly at the US Embassy
• No CIS petition required; apply for visa directly with Consulate but limited to Australian citizens
• All visa issuing US consulates in Australia accept applications
• If in the US in an eligible status, can apply to change status to E-3 through the USCIS
• Admitted for two years• No maximum stay for E-3s • Limited to 10,500 per year• Spouse can get authorization
to work
E-3 CLASSIFICATIONE-3 CLASSIFICATION
• Job offer from US employer (E-3 support letter)• Must be filling a position in the US that requires
attainment of a bachelor’s degree• Must have foreign equivalent of a US bachelor’s
degree related to field of work (experience equivalency allowed)
• Certified Labor Condition Application (LCA)• All other normal visa application documents
Evidence that stay in US will be temporary
E-3 REQUIREMENTSE-3 REQUIREMENTS
• Singaporeans and Chileans (H-1B1): Nationals of Singapore and Chile have their own H-1B quota numbers available under respective treaties between those countries and the U.S. The numbers available under those treaties have yet to be exhausted.
• E-1/E-2: If the potential employer shares the same nationality as the foreign national employee, and if that nationality is a country which has a qualifying treaty with the U.S., either E-1 treaty trader or E-2 treaty investor is worth exploring.
• R-1: If the nature of the employment is a religious vocation, the R-1 religious worker visa becomes a readily available, non-capped option.
• P Status: If the nature of the employment is of an artistic or entertainment nature, one of the P visa categories may be an option.
• I Status: The I visa is available for foreign nationals working for a foreign information media outlet -- press, radio, film or other -- in the U.S.
• B-1 in Lieu of H-1B: If a foreign national is coming to work in an H-1B-eligible position in the U.S., but the source of the H-1B's salary will be overseas, a B-1 in lieu of H-1B option should be explored. This option is most appropriate for foreign nationals who have an overseas employer which requires a foreign national to provide professional services for the benefit of the overseas employer in the U.S.
• H-3: Many employers have training programs for new graduates as the first step of their H-1B employment. The training program may be formal enough to qualify the foreign national for H-3 status.
OTHER CATEGORIES TO CONSIDEROTHER CATEGORIES TO CONSIDER
IMMIGRANT VISASIMMIGRANT VISAS
• Available for hiring an employee on a “permanent” basis
• Permanent Residence• No limit on period of stay• No limit on employment• Not US citizens – Cannot
vote; could lose status for extended absence from US or committing certain offences
““GREEN CARDS” GREEN CARDS” THROUGH EMPLOYMENTTHROUGH EMPLOYMENT
• First Preference (EB-1)• Extraordinary Ability, Outstanding
Researchers and Professors, and Managerial or Executive Transferees
• No Labor Certification requirement• Second Preference (EB-2)
• Exceptional ability, National Interest Waiver (NIW), and advanced degree professionals
• No Labor Certification for NIW & Exceptional ability
• Third Preference (EB-3)• Professional, skilled, and
unskilled workers• Why do the Preference
categories matter?
HIRING AN INDIVIDUAL WITH A PENDING HIRING AN INDIVIDUAL WITH A PENDING GREEN CARD APPLICATION – POSSIBLE?GREEN CARD APPLICATION – POSSIBLE?
• Where is the individual in the “green card” process?• If the individual has a pending I-485
application with an EAD card, then there is a good possibility that you could employ that individual immediately and without disrupting his application.• If the individual is in the first phase of the
process, Labor Certification, or the second phase of the process, I-140 Petition, with no pending I-485, he may be “hirable” under H-1B portability, but you would have to re-start the green card process down the road.
CAN THE INDIVIDUAL VOLUNTEER CAN THE INDIVIDUAL VOLUNTEER AT OUR COMPANY?AT OUR COMPANY?
• If the position is normally filled by a paid employee, whether FT or PT, the DoL has taken the position that this is not a “volunteer” and it could run afoul of both immigration and wage and hour provisions.
• There are many visa options, which we have discussed today, so, if there are questions as to whether it would qualify as a “volunteer,” then you are probably better off exploring proper visa options so as to avoid such penalties.
THANK YOU.
Presented by
For additional information please go to:www.immigrationsquared.com orwww.grahamadair.com