the h-1b visa. the h-1b golden ticket the key to working in the u.s. after a student completes the...
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The H-1B Visa
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The H-1B Golden Ticket• The key to working in the U.S. after a
student completes the optional practical training
• Very few other immigration options, including other nonimmigrant visas granting authorization to work
• Obtaining legal permanent residency is usually a long process
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Other Nonimmigrant Visas• Treaty Nafta (TN) • Must be a citizen of Canada or
Mexico• Restrictive list of professions
• E-1 and E-2 for treaty trader and treaty investor• Treaty with the alien’s country• Substantial trade or investment
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Cont. Other Nonimmigrant Visas• L-1 Intracompany Transferee• L-1A executive or manager• L-1B specialized knowledge• Must have worked for affiliated
company abroad for at least 1 year• Must be coming to the US to work
for affiliated company as executive, manager or specialized knowledge
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Cont. Other Nonimmigrant Visas• O-1 Extraordinary Ability• E-3 Australian Specialty Occupation• F-1 Student• J-1 Exchange Visitor• B-1 or B-2 Visitor• P Entertainer or Athlete
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Cont. Other Nonimmigrant Visas• Miscellaneous other visas (diplomats,
cultural exchange, etc.)
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Summary of the H-1B Visa• Nonimmigrant (temporary) visa • Six years (with certain exceptions)• Professional or “specialty” occupation
requiring a bachelor’s degree• Employer specific• Location specific
The H-1B Visa
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Concurrent Employment• An alien can work concurrently
for two or more employers pursuant to H-1B petitions.
The H-1B Visa
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General Requirements
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Sponsorship by an Employer• An employer must file an H-1B petition
on behalf of the alien• Self-employment is not allowed.• The alien could establish a company
and that company could sponsor the alien.
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Definition of Specialty Occupation1) An occupation that requires the
theoretical and practical application of a body of specialized knowledge, and
2) Attainment of a bachelor’s degree or higher (or equivalent) in the specific specialty as a minimum for entry into the occupation in the US
General Requirements
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Examples of Specialty Occupations• Examples: • Engineer • Computer scientist• Physician • Professor • Accountant • Teacher
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Examples of Non-Specialty Occupations• Waitress with a Ph.D. in linguistics• Life insurance agent• General/office manager• Customer service representative in
nontechnical field
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Cont. Specialty Occupation• The alien must have at least a
bachelor’s degree in the related field or:
1) Foreign academic equivalent;
2) Equivalent work experience (3/1 rule); or
3) Combination of both.
General Requirements
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Prevailing Wage for the H-1B• The employer must pay at least
the prevailing wage or the actual wage, whichever is higher.
• It is determined based on minimum requirements and the area of intended employment.
• The Department of Labor’s website provides four wage levels.
• A private survey may be obtained.
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Processing Procedures
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Processing Procedures
Changing Status from F-1 to H-1B • The F-1 need not leave the country to obtain
H-1B status. • The F-1 alien should file to change status well
in advance, since employment pursuant to the H-1B petition cannot commence until the petition is approved and a visa number is available.
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The H-1B Cap on Visa Numbers• 65,000 for the bachelor’s degree• 20,000 additional numbers for those
with a master’s degree or higher from a U.S. institution.
Changing Status from F-1 to H-1B
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Fiscal Year for the H-1B Cap • Visas become available October 1st of
each year.• The fiscal year runs from October 1st to
September 30th.
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Cont. H-1B Cap• The earliest an employer can file an H-
1B petition subject to the cap is April 1st of each year (cannot file more than 6 months in advance of the start date).
• The earliest start date that can be requested is October 1st of that same year.
• For this year, the earliest an alien can obtain H-1B status is October 1, 2008.
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Cont. H-1B Cap• The H-1B cap in both the bachelor’s
and master’s categories for this fiscal year (10/1/08 to 9/30/09) was reached on April 7, 2008.
• Petitions received from April 1st to April 7th are subject to a computerized random lottery.
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Cont. H-1B Cap• Last year, the H-1B cap was reached
on April 1, 2007, the first day of filing. Some figures suggest that up to 200,000 petitions were received.
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Processing via Change of Status• An F-1 student can change status and
remain in the US after the petition is approved for October 1st only if the student’s F-1 status, including the 60-day grace period, is through October 1st.
• No gap in status is allowed to change status.
Changing Status from F-1 to H-1B
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The H-1B Cap-Gap• Prior to the new Optional Practical
Training (OPT) rules, when a gap occurred between the expiration of the F-1’s status and October 1st, the F-1 student would have to leave the country and reenter on October 1st of that fiscal year.
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Example of Cap-Gap from F-1 to H-1B• F-1 student’s optional practical training
is expiring on July 15, 2008. The student would not be able to change status to H-1B and remain in the US, since her 60-day grace period would expire before October 1, 2008.
• If the F-1’s OPT was expiring on August 30th, then she could change status.
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Old Rule: No Employment during Grace Period• If the F-1 was granted a change of
status to H-1B, the F-1 could not work during the 60-day grace period.
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New Rules on OPT Extension and Cap-Gap Fix• Provides automatic extension of stay
and work authorization for all F-1 students with pending H-1B petitions until October 1st of the year the visa is requested
• Extends OPT from 12 to 29 months for F-1 students with a degree in science, technology, engineering or math who are employed by a company in E-Verify
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Requirements for Cap-Gap Extension of Status and Work Authorization• H-1B petition timely filed • Requested change of status • October 1st start date • No violations of F-1 status • Terminates upon the rejection, denial or
revocation of the H-1B petition
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Requirements for OPT STEM 17- Month Extension• Currently in 12-month period of
approved post-completion OPT• At least a bachelor’s degree in science,
technology, engineering or mathematics (STEM), which include:
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Cont. OPT STEM Extension• Computer Science Applications• Actuarial Science• Engineering or Engineering
Technologies• Life Sciences• Math• Military Technologies• Physical sciences
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Cont. OPT STEM Extension• Working for US employer in a job
directly related to the student’s major area of study
• Be working for, or accepted employment with, employer enrolled in USCIS’s E-Verify program
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Cont. OPT STEM Extension• Report to the DSO regarding changes
in the program or address• Properly maintain status in the US
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When to Apply for OPT STEM Extension• The student must apply before the
current post-completion OPT expires.• If a student timely files the I-765, but
the OPT expires prior to the decision, the student’s OPT is extended automatically.
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Requirements Post Extension Approval• The student must report to the DSO by
email, within 10 days, any change in:• Legal name• Residential and mailing address• E-mail address• Employer name• Employer address• Job title or position
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Requirements Post Extension Approval• Supervisor name and contact
information• Employment start date• Employment end date
• The student must report to the DSO every 6 months by email confirming the information (even if no changes)
•
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Requirements Post Extension Approval• The requirement to report continues
even past the 17-month OPT extension if the student’s OPT is further extended by the cap-gap extension.
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E-Verify• Free, internet-based system operated
by the Social Security Administration and USCIS that allows employers to determine employment eligibility of newly-hired employees
• Electronically compares information on the Form I-9 (employment eligibility verification form) with records in the SSA and DHS databases
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Cont. E-Verify• It is a flawed system with false positives
for US citizens.• Approximately 33,000 employers (or
1% of all employers) are currently enrolled.
• This requirement will present a substantial hurdle for many F-1 students seeking OPT extensions.
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Hidden “Stick” in New OPT Rules• The F-1 student may not aggregate
more than 90 days of unemployment during the first 12 months in OPT.
• The F-1 student may not aggregate more than 120 days of employment during the entire 29-month, extended OPT period.
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Link to New OPT Rules• “Extending Period of Optional Practical
Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions,” April 8, 2008: http://edocket.access.gpo.gov/2008/E8-7427.htm
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Petitions Exempt from the H-1B Cap• Certain employers and petitions
are not subject to the visa cap.
Changing Status from F-1 to H-1B
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Cont. Cap Exemption• If not subject to the cap then the H-1B
petition can be filed and the employment may commence at any time during the year.
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Cont. Cap Exemption• Cap exempt petitions and employers
include:• Any alien counted against the cap
within the past six years
Changing Status from F-1 to H-1B
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Cont. Cap Exemption• J-1 who has obtained a waiver
through the State 30 program• Institutions of higher education• Nonprofit entities affiliated with
institutions of higher education• Nonprofit or governmental
research organizations
Changing Status from F-1 to H-1B
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Cont. Cap Exemption• An alien changing H-1B employers, as
long as she was not working at a cap-exempt institution previously
• Extensions of H-1B status
Changing Status from F-1 to H-1B
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Filing Fees and Attorney Fees• The employer must pay certain fees
(ACWIA, fraud) • Certain employers are exempt from
those fees
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Premium Processing• $1,000 filing fee • USCIS must adjudicate the petition
within 2 weeks of receipt or request additional evidence within this time frame
• Not necessary to obtain a visa number, since the filing of the petition secures the petition’s place in line for a visa number
Changing Status from F-1 to H-1B
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Post-filing Issues
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Portability• H-1B change of employer petitions • The employee can commence
employment with the new H-1B petitioning employer upon the filing of an H-1B petition.
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Post-filing Issues
Admission and Extension• H-1B status granted for up to three years
at a time and for a maximum of six years.• H-1B status can be extended beyond six
years if the process for legal permanent residency through an employer has reached a certain stage.
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• The alien can start the process for legal permanent residency either before, during or after filing the H-1B petition.
Filing for Legal Permanent Residency
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