1. Whiteman Osterman & Hanna LLP
BASICS AND UPDATE: H-1B
November 19, 2008
Seth R. Leech, Esq.
Whiteman Osterman & Hanna LLP
Albany, New York

2. Whiteman Osterman & Hanna LLP
IMMIGRATION 101
1 – 9 years
Immigrant Visa
LPR / “Green Card”
3 – 5
years
Nonimmigrant Visa
Citizenship
B-1/2 Visitor for Business / Pleasure
E-1/2 Treaty Trader/Investor
E-3 Specialty worker – Australia
F -1 Student – OPT
H-1B Specialty worker
H-2 Temporary Worker
H-3 Trainee
J-1 Exchange Visitor
L-1 Intracompany Transferee
O-1 Alien of Extraordinary Ability
R-1/2 Religious Worker
TN Trade NAFTA
FAMILY-BASED CATEGORIES
IR Immediate relatives
FB-1 Unmarried sons / daughters of USCs
FB-2 Spouses / children of LPR
FB-3 Married sons / daughters of USCs
FB-4 Brothers / sisters of USC
EMPLOYMENT-BASED CATEGORIES
EB-1 Outstanding researchers
Aliens of extraordinary ability
Multinational managers
EB-2 Advanced degrees / NIW
EB-3 Professionals
2 years experience
Other workers
EB-4 Special immigrants / religious
EB-5 Investors
3 years if by marriage to U.S. citizen
5 years for everyone else
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3. H-1B VISAS: PROFESSIONALS
REQUIREMENTS
APPLICATION STEPS
TIMETABLE
DURATION
1. Job must require BA / BS degree or equivalent as minimum entry-level requirement
2. Applicant must have degree equivalent to U.S. BA / BS, or equivalent experience
3. Employer must pay at least prevailing wage for the position in geographic area
NO TEST OF U.S. LABOR MARKET REQUIRED: No advertising, no recruitment
1. Determine prevailing and actual wage for position
2. File Labor Condition Application (LCA) with U.S. Department of Labor
3. File visa petition with USCIS
4. Issuance of visa
- If in U.S., change status with visa petition
- If overseas, apply at U.S. Consulate for entry visa
- Canadians apply at U.S. border
2 – 5 months
Premium processing: USCIS decision in 15 days
May work as soon as filed if held H-1B visa before
Granted for 3 years
Renewable for 3 years
May extend while green card is pending
COSTS
$320 USCIS filing fee
$500 Antifraud fee
$750 – 1500 ACWIA fee
(limited exemptions)
- prevailing wage
- credentials evaluation
- premium processing
($1,000)
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A MATTER OF DEGREE
• An H-1B professional must possess a Bachelor’s degree or higher or equivalent to a Bachelor’s degree
• Position must require a Bachelor’s degree
• Bachelor’s degree must relate to position
• Bachelor’s equivalencies: may use a combination of education and experience to satisfy Bachelor’s requirement:
• 3 years of related professional experience equals one year of education
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5. DEGREES, PART II: FOREIGN DEGREES AND CREDENTIALS EVALUATIONS
BEWARE OF FOREIGN DEGREES:
• Many foreign degrees are NOT the equivalent to a U.S. Bachelor’s degree or higher
• The 3-year Bachelor’s degree: United Kingdom, India (many countries have both 3 and 4 degrees)
• Other foreign degrees: the Italian Dotorati
CREDENTIALS EVALUATIONS:
• Should be done in all cases where:
• Person has foreign degree
• Person is using combination of work and experience to equal degree
• Credentials evaluation services: Foundation for International Services (FIS)
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H-1B TIME LIMITS
BASIC RULE:
• 6 years total time
• Usually two 3 year increments
• Can not request more than 3 years per H, but can request less
• Extensions beyond 6 years are sometimes possible
• May extend in 1 year increments prior to I-140 approval if green card documents are
submitted before start of 6th year of H-1B time
• May extend in 3 years increments if I-140 approved
• May recapture certain “lost” periods of H-1B time
• Periods out of U.S. during 6 year period
• Maybe medical leave, maternity leave, or similar periods
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7. H-1B VISAS – THREE STEP PROCESS
OBTAIN PREVAILING WAGE DETERMINATION FROM STATE DEPARTMENT OF LABOR
• Process is normally fast, but can take up to 6 weeks during H-1B season
• May purchase a prevailing wage determination from private agency ($200 – $600)
SUBMIT LABOR CONDITION APPLICATION (LCA) TO U.S. DEPARTMENT OF LABOR TO GET WAGE CERTIFIED
• Process is electronic and nearly instantaneous
• Process slated to become mail-in process in 2009 – stay tuned!
SUBMIT PETITION PACKAGE TO USCIS
• I-129
• I-129W
• H Supplement
• I-907 (Premium Processing)
• Company letter describing how statutory requirements are met
• Company background
• Individual background and credentials
• I-539 for family members in need of H-4 status
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PREVAILING WAGE
• H-1B employers must pay prevailing wage (PW) for position
• PW based on supposedly geographically-specific USDOL statistics, but
administered by NYSDOL
• Wage statistics do not reflect realities of Upstate New York
• Alternate wage sources may be required
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OVERVIEW: NONIMMIGRANT VISA PROCESS CHANGE OF STATUS VS. CONSULAR PROCESSING
Must be legally in U.S.
CHANGE OF
STATUS in U.S.
(Form I-539
for dependents)
New I-94 with
extended/amended
period of stay
VISA PETITION
Form I-129 filed
with USCIS
by sponsoring
employer
Continued valid stay in U.S.
If leave U.S., need new visa stamp to return
CONSULAR
PROCESSING
OVERSEAS
Visa stamp issued at
U.S. Consulate
ENTRY
New I-94 issued by
CBP at POE
at next entry
If outside the U.S.
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THE H-1B CAPS
There are two H-1B caps: 1) 20,000 visas for those who possess a Master’s degree or higher from a U.S. college or university, and 2) 65,000 visas for all other applications.
• 65,000 regular cap. Nearly 130,000 applications were submitted for April 1 delivery in 2008 (FY 2009). USCIS uses a lottery to determine who gets visas.
• 20,000 Master’s cap. In 2008 (FY 2009), there were approximately 30,000 applications received on April 1 for 20,000 visas. Applications not selected under Master’s cap lottery were then considered under the regular H-1B cap lottery.
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H-1B CAP EXEMPTIONS
Some types of organizations are exempt from H-1B numerical cap and can thus file new H-1B petitions at any time. These organizations include:
• Colleges and universities (institutions defined by Higher Education Act of 1965)
• Non-profits/or entity affiliated with colleges/universities
• Non-profit research organization or government research organizations
WHY IS THIS IMPORTANT: Cannot transfer H-1B from cap exempt organization to non-exempt organization
• may be able to use a cap exempt organization to get H-1B for your workers (your desired employee works at exempt entity, but work benefits you);
• may be able to create affiliation with university allowing desired employee to work directly for you; and
• concurrent H-1B employee works for both exempt entity and you at the same time – this is permitted by current policy.
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H-1B TRANSFER BASICS
DEFINITION: H-1B holder at Company A moves to Company B
MUST COMPLY WITH ALL BASIC H-1B RULES
CANNOT USUALLY TRANSFER FROM CAP EXEMPT ORGANIZATION TO CAP SUBJECT ORGANIZATION
BE WARY OF THOSE WHO ARE UNEMPLOYED
• Strict interpretation – out of status day after prior employment ended
• Unwritten variable grace period (some call it the “10-day grace period”)
• Mitigate gap by preparing H-1B as soon as hiring decision is made
• Filing petition keeps transferee in status even if they subsequently leave employer
WHEN CAN THE TRANSFEREE COME TO WORK?
• On day that H-1B transfer petition is filed with USCIS
• Conservative approach – wait for receipt notice
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13. Whiteman Osterman & Hanna LLP
BE PREPARED FOR APRIL 1, 2009!!
• No new H-1Bs available for non-exempt companies until October 1, 2009 (FY 2010)
• Law permits entities to submit H-1B petition (third step of process) up to 6 months prior to start date  Hence: April 1, 2009
• New H-1B petitions may be submitted on Tuesday, March 31, 2009 for April 1, 2009 delivery
• Complete prevailing wage (Step 1) and Labor Condition Application (Step 2)* in advance of April 1.
Reminder: LCA may become mail-in process and significantly delayed
*Getting an LCA approved prior to April 1 will prevent an employee from initially getting full 3 years on H-1B, but will increase overall chances of getting visa. Example: LCAs only valid for 3 years, so submitting LCA on March 15, 2009 will cut approximately 15 days off end of overall validity of H-1B submitted in April. The trade off is worth it because waiting until April 1 to file the LCA to get full complement H-1B time would mean losing one critical day in filing season. This “lost” time can be recaptured in later petitions, so applicant will still be eligible for full 6 years of H-1B status.
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14. OTHER NONIMMIGRANT VISA POSSIBILITIES
• TN (Trade NAFTA) for Canadians and Mexicans in specified professions
(3 years now)
• Special Free Trade Hs for Chileans and Singaporeans
• E-3s for Australian professionals
• O-1s (Aliens of Extraordinary Ability)
• H-2Bs for temporary need (usually unskilled ) workers
• J-1s, H-3s, Ps, Qs, etc.
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15. F-1 STUDENTS: PRACTICAL TRAINING
REQUIREMENTS
APPLICATION STEPS
TIMETABLE
DURATION
Curricular Practical Training (CPT) during school if work ties into curriculum
Optional Practical Training (OPT) before (pre-completion) or after graduation (post-completion):
Student has completed 12 months full-time study at U.S. university
2. No restrictions on employer: no employer petition to USCIS
Designated School Official must endorse student paperwork
2. OPT: Student applies for Employment Authorization in advance of working
Student may start work only when EAD is issued
3. CPT: Student may start work after endorsement
CPT: no wait
OPT: 90 – 120 days for EAD
(can apply anytime from 90 days before graduation to 60 days after graduation)
CPT: no limit, but no OPT available if student has worked 12+ months on CPT
OPT: up to 12 months total before and after graduation
(17-month extension available for some students)
COSTS
USCIS filing fee: $340 for EAD
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16. THE NEW OPTIONAL PRACTICAL TRAINING RULES
TO ALLEVIATE CONSEQUENCES OF INSUFFICIENT H-1B NUMBERS,
OPT EXTENDED FROM 1 YEAR TO 29 MONTHS FOR SOME STUDENTS
• Only applies to graduates currently in valid OPT
• Only applies to graduates with Science, Technology, Engineering, or
Mathematics (STEM) degrees (STEM professions found at
• Employer must register for E-verify and use at job site
• Students must not be unemployed more than 90 days in first 12 months or aggregate of 120 days
CAP GAP PROTECTIONS – extends OPT until October 1 for those whose OPT
expires before H takes effect
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17. Whiteman Osterman & Hanna LLP
RECOMMENDATIONS
• Identify candidates as early as possible (January – February 2009) in order to deal with Prevailing Wage and LCA challenges
• Examine OPT possibilities re: availability of STEM extension or Cap Gap protections
• Consider availability of other visa classifications
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18. Whiteman Osterman & Hanna LLP
Additional information on immigration issues, as well as updates on new developments, can be found on our web site at Go to “Practice Areas” and select “Immigration.”
International Practice Group Leslie K. L. Thiele Scott T. Decker
Whiteman Osterman & Hanna
One Commerce Plaza
Albany, New York 12260
Tel: (518) Seth R. Leech L.J. D’Arrigo
Fax: (518)
The information in this presentation is intended as general background information on immigration law and visa categories. It is not to be considered as legal advice with regard to any current or future immigration application. Immigration law changes often and processing information becomes rapidly outdated. Please consult your immigration counsel before taking action on immigration matters.
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© Seth R. Leech