The Coveted H 1 B Clearing All the

The Coveted H 1 B: Clearing All the Hurdles Presented by: David A. M. Ware, attorney at law www. david-ware. com. dware@david-ware. com 800 537 0179 National Practice with Offices Across the Gulf South

Where’s the Yellow Brick Road? Your career in the US after graduation should ALWAYS start with Optional Practical Training (OPT). You must apply before you complete all requirements for degree. You get one year for each higher degree you complete.

The Yellow Brick Road… OPT ideally acts as a bridge between your studies and the workplace. It allows you to “get your foot in the door” with a US employer without any paperwork on their part: vitally important. It allows you to try more than one job if you wish. While in some cases it may be possible to proceed directly to H 1 B or even permanent residence without OPT, this is usually unadvisable.

What is An H 1 B 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 bachelor’s degree. You may be able to apply for the H while still in school if undergrad degree directly relevant to offered employment.

What Are the Other Parameters of the H 1 B? Employment is limited to the employer(s) who petition(s) for the student. May hold more than one H 1 B at same time. H 1 B may be part time. Employment is generally limited to six years with ALL employers (unless employment-based permanent residence begun by end of 5 th year). Employment must be directly related to degree program. H 1 B’s are limited by strict fiscal year quotas. The H 1 B beneficiary may have “dual intent”.

What Are the Employer’s Obligations? 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.

Employer’s 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.

Employer’s Obligations? Must agree to employ H 1 B only in geographic location(s) set out in labor condition application. Must agree to pay return transportation to country of nationality if H 1 B terminated (but not enforceable).

What’s Filed and When? First is Labor Condition Application. Filed electronically with Department of Labor. Next is H 1 B 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 H 1 B, along with family members. If outside US, or traveling following change of status, must obtain H 1 B visa at US consulate.

The Magic Approval Processing of the H generally takes two to three months. Fifteen day premium processing is available for $1 K; also guarantees easier communication with USCIS via phone/email. Once approved, the H employee may “port” to a new employer once that employer files a new petition. Approval of new petition not necessary. BEWARE: porting if you have not been counted against the quota.

Any Pitfalls? Horrible quota problems! – Currently H 1 B’s are limited to about 78, 789. ~58, 789 for those with no US earned Master’s. --20, 000 for those with US earned Master’s or higher. ~6, 800 reserved for H 1 B 1 for citizens of Chile, Singapore (unused numbers “fall back” during first 45 days of new FY— 589 this year).

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 entities, non profit research and government research organizations, and physicians granted a waiver of the two year home residence requirement for J’s. Note that most govt. entities and non profits are NOT exempt from quotas. If you were an H employee for an quota-exempt employer you were not counted against the quota, unless you began H status prior to October 20, 2000.

Current Quota Statistics FY 2007 non-Master’s quota of approx. 60 K exhausted 5/26/06—seven weeks! FY 2007 20 K US Master’s quota exhausted 7/26/06— 15 weeks! Petition can be made for FY 2008 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 MUST begin H 1 B petitioning process. Should begin paperwork no later than 3/1/07. Quotas likely to be exhausted even faster this year—some are predicting exhaustion on April 2!

Quota Pitfalls? Major problem arises when OPT or AT will end prior to the beginning of H 1 B petition approval, plus the student’s (60 day) or exchange visitor’s (30 day) grace period. In years prior, immigration generally published “gap rule” allowing J’s and F’s to maintain status during this period, remain in the US, but not work. For several years: NO GAP RULE.

Quota Example Priya’s F 1 OPT began May 15, 2006 and ends May 14, 2007. She finds a suitable job and the company petitions for her H 1 B on April 1, 2007. Since the FY 07 (10/1/06 to 9/30/07) for US Master’s 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.

Quota Quandaries But Priya thus will have a gap in status from 7/14/07 (end of 60 day grace period) until 10/1/07. What’s she to do? – – – – Apply for H while still in school if BS degree relevant. CAN’T WORK after 5/14/07! Postpone OPT start date til 7/14? (still a small gap) Apply for change of status to B 2? (logistics issues) Apply for change of status to dependant (if married or under 21) Apply for admission to a new program and new I 20 for Fall 2007? (money and intent issues) Leave the US? (all sorts of issues) Go back in time and alter her graduation date? (physics issues—but see next slide!)

Your Grad Date and H 1 B Cycle Current H 1 B quota problems make May graduation very difficult, August less so and December ideal. Why? May 15, 2007: OPT until following May 14; no H 1 B until October 1, 2007. GAP! August 15: OPT until following August 14; no H 1 B until October 1, 2007. POSSIBLE GAP! December 15: OPT until following December 14; student applies for H 1 B 4/1/07; gets it 10/1/07. NO GAP!

Will All This Mess Soon Be Moot? Included in comprehensive immigration legislation which passed the Senate last year was a provision to recapture 30 K H 1 B numbers from each year beginning in 1991. Fees would increase for such recaptured numbers. House did not pass this measure because of opposition to legalizing undocumented workers. H provision may pass as stand-alone bill some time in the spring. Appears that Democratic control of Congress greatly increases likelihood of passage: but, labor groups oppose?

Check Out the Position and Employer 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 2’s 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.

Does This Job Really Require a 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 Bachelor’s 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 H 1 B? What are industry standards for this type of job? Check ads on internet, DOL’s Occupational Outlook Handbook. Is the salary commensurate with a professionallevel position?

Can I Bank on This H? Example 1: Edilson 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 60 K. During the training period, he will only be paid 25 K. Ms. HR says that all prior trainees have possessed an MBA. Can Edilson get an H 1 B to begin his training?

Will Immigration Buy this One? Svitlana is offered a “Sales Associate” position at Needless Markup department store. Her salary will be 20 K. 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 Svitlana get an H 1 B with this offer?

Will Immigration Get Technical? Hassan 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 company’s products. His salary will be 40 K. He is told that eventually he could rise to Regional Sales Manager or Technical Sales Manager. Does this offer hold H 1 B possibilities for Hassan?

Friends in High Places Alain has a wealthy friend who wants to open a Cesare Paciotti shoe store franchise on Madison Avenue in New York. He has known Alain 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. Alain 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. Alain will manage personnel, devise marketing campaigns, manage inventory, prepare financial projections, and oversee the entire operation. His salary will start at 80 K. H 1 B for Alain?

Do Your Homework 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.

Pay Attention When meeting the interviewer, ask for his or her card, if available, and look at it carefully. Note the person’s 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.

Who’s Across the Table? Persons who actually manage or carry out work in your area are usually most concerned with the applicant’s 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.

Penetrating “Our Policy” If the interviewer is recruiter/HR, try to find out who you’d 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 interviewer’s objections to hiring you. This is particularly the case if told “We don’t sponsor for work visas. ”

Don’t Take “No” for an Answer If confronted with “we don’t sponsor”, after you identify the function of the individual, then try to find out WHY. Sometimes the individual doesn’t know, the policy was established by someone “who’s no longer with the company”, etc. If you decide to bypass the interviewer, and try to “go inside” the company, it’s very important to know the “why” of the “no sponsor” rule.

Employers’ Many Misconceptions Employer believes that it must recruit, prove American workers not available, or prove that student is exceptional, special, or unique to sponsor. FALSE: No recruitment required. Special qualities not relevant. Two ten day postings are for notification only.

Dumb and Dumber Employer thinks the process “will get them in trouble with immigration” (not unless they have otherwise shady practices or lie in the paperwork). Employer doesn’t 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).

We’re So Vain Employer thinks “it’s too much trouble, paperwork” (a few signatures, a ten day posting, no advertising; attorney can simplify process). Employer worries about posting the employee’s wage (post a range!). Employer feels they receive enough resumes from US workers; no need to apply for a foreigner (didn’t they ever hear of the immigrant work ethic? ; try to identify immigrants within the company).

Too Many Lawyers Employer worries that sponsorship may constitute contract of employment (no, but if they’re worried, do a memo of understanding both sign). Employer worries that employee is later going to ask for PR and leave the company –they’ve 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”).

Fine, If You’re Free Employer doesn’t 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.

Let’s Make a Deal Employer doesn’t 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 2’s are often requested at visa interviews, and in connection with applications for immigration benefits.

What if Size H Doesn’t 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 Bachelor’s degree. But MBA’s beware: “Management Consultant” is carefully scrutinized; generally must be independent contractor. TN given in one year increments; requires residence abroad (no dual intent).

Other Ways to Heaven? H 1 B 1 visa for Chile, Singapore: very similar to normal H 1 B, except granted in one year increments, requires residence abroad (no dual intent). E 3 for Australian citizens; again very similar to H 1 B; minimum Bachelor’s, 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.

Money, God or Business? E 1/E 2: if your country of nationality has an trader/investor treaty with US, investment of as little as 50 K in a job-creating business can mean a visa for life, work permit for spouse. L 1 A/L 1 B: 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. 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.

Get A Lawyer? 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! Do your research well.

The Coveted H 1 B: Convincing the Employer to Sponsor Presented by: David A. M. Ware, attorney at law www. david-ware. com. dware@david-ware. com 800 537 0179 National Practice with Offices Across the Gulf South