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 Offices Across the Gulf South: National Practice
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.
What is An H 1 B 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.
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. Employment is generally limited to six years with ALL employers (unless employment-based PR 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 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.
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 Vermont Regional Service Center of USCIS. 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.
What Are the Pitfalls I Should Know About? • Horrible quota problems! – Currently H 1 B’s are limited to about 85, 000. ~58, 200 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).
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 J’s. Note that most govt. entities and non profits are NOT exempt from quotas.
Current Quota Statistics • FY 2007 non-Master’s quota of 58, 200 exhausted • • 5/26/06. New non-Master’s quota opened 4/1/06, for employment beginning on or after 10/1/06. FY 2007 US Master’s 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 H 1 B petitioning process.
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 EV’s (30 day) grace period. In years prior, Legacy INS 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 • Li Li’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 Li Li 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? – – CAN’T 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)
Any Solution in Sight? • Included in comprehensive immigration • • legislation which has passed the Senate is a provision to recapture 30 K H 1 B 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.
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 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.
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 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 professional-level position?
Pitfalls: Entry Level Business Positions • Example 1: Joᾶo 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 Joấo get an H 1 B to begin his training?
Pitfall: Entry Level Positions • Emine 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 Emine get an H 1 B with this offer?
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 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 Arvind?
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 80 K. H 1 B for Georgi?
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.
Pitfall: Meeting the “Buyer” • 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.
Pitfall: Meeting the “Buyer” • 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.
Pitfall: Meeting the “Buyer” • 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. ”
Pitfall: Meeting the “Buyer” • 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.
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.
Pitfalls: Overcoming “Buyer’s” 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 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).
Pitfalls: “Buyer’s” Objections • 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).
Pitfalls: “Buyer’s” Objections • 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”).
Pitfalls: “Buyer’s” Objections • 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.
Pitfalls: Buyer’s Objections • 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.
Are there H 1 B 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 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).
H 1 B Alternatives? • 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 1 B Alternatives • 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.
H 1 B 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!
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 Offices Across the Gulf South: National Practice
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