ROLLING THE DICE: PREPARING FOR CAP-SUBJECT H-1B PETITION SEASON Elaine Kumpala Sarah Peterson Stensrud

What is H-1B Status?  Specialty Occupation: an occupation that requires— (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.  INA § 101(a)(15)(H)(i)(b)

What is H-1B Status? Position  Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position  The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree  The employer normally requires a degree or its equivalent for the position  The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.  8 CFR §214.2(h)(4)(iii)(A).

What is H-1B Status? Employee Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. 8 CFR §214.2(h)(4)(iii)(C).

What is H-1B Status? Steps in the process: 1. Initial Case Screening 2. Preparing the Labor Condition Application 3. Preparing the H-1B Petition 4. After the H-1B Petition is approved by USCIS

Initial Case Screening

Initial Screening  Initial Intake Should Include:  Both Employer & Employee v. Employer  Dual Representation Disclosure  Degree Assessment & Education Evaluation  Specialty Occupation Assessment  Current Status Assessment  Offered Salary  Dependants  International Travel

Initial Screening  H-1B NUMERICAL CAP 65,000 numbers annually Open October 1 but can apply April 1 Exemptions:  Universities  Non-profit, affiliated with University  J-1 waiver Physicians  Concurrent Employment  Those previously counted

Initial Screening  H-1B Numerical Cap: 65,000  20,000, additional numbers for individuals with U.S. Master’s Degree or Higher from a U.S. Institution of higher Education, INA 214(G)(5)(C)  Adjudicators must apply all exemptions that do not contain numerical limitations first before applying the “masters or higher” 20,000, AILA Doc. No  YES: JD, PhD & MD are equivalent to/higher than a Master’s, AILA Doc. No  NO: Doctor of Chiropractic, AILA Doc. No

Initial Screening  April 1, 2013 = first day USCIS will receive H-1B Petitions  H-1B Counts at the time of filing, INA 214(g)(3)  FN only counted once against cap in the six year period

Initial Screening Don’t Forget Possible Alternatives:  H-1B1, Chilean/Singaporean Free Trade Agreement  One-year increments that can be extended, INA 214(g)(8)(C)  E-3, Australian Free Trade Agreement, INA 214(g)(8)(C)  10,500, INA § 214(c)(1)  TN for citizens of Canada and Mexico  O-1  L-1

Initial Screening  Using H-1B remainder time, AILA Infonet Doc. No (posted Dec. 20, 2006).  EX: Electrical Engineer works for three years in H-1B status. Spends six months in India with ailing mother. Returns to US to work another two years in H-1B status. Returns to India to help ailing father and spends thirteen months in India. Nothing filed for permanent residency. Now wants to return to US with new, cap subject employer but no H-1B numbers currently available.  Could wait and qualify for another six years of H-1B Status, BUT,  Under the recapture” Doctrine he can recapture nineteen months.

Preparing the H-1B Petition

Steps in the H-1B Process: 1. Prevailing Wage from DOL or alternative source 2. Posting Notice 3. Labor Condition Application to DOL 4. Submit H-1B Petition to USCIS

Preparing the H-1B Petition  Prevailing Wage  From DOL or alternative source  Safe harbor  Payment of Fees  Collective Bargaining  Wage Ranges

Preparing the H-1B Petition  Posting Notice  Posting options Hard posting Electronic notice  Timing of posting notice & draft LCA to client

Preparing the H-1B Petition  Submitting the LCA to DOL  7 business days  copy of signature acceptable  Public Access File compliance requirements  Keep separate from personnel records  Purge after compliance period

Preparing the H-1B Petition  Submit H-1B Petition to USCIS: I. Checks for filing fees II. Form I-907 – Request for Premium Processing Service III. Forms G-28 – Notice of Entry of Appearance as Attorney IV. Form I-129 – Petition for Nonimmigrant Worker V. H Classification Supplement to Form I-129 VI. H-1B Data Collection & Filing Fee Exemption VII. Confirmation of Beneficiary’s valid status VIII. Beneficiary’s Credentials IX. Form ETA 9035: Labor Condition Application X. Petitioner’s Support Letter XI. Duplicate copy of petition to KCC

Preparing the H-1B Petition  Issue Spotting:  Specialty Occupation  Travel Change of Status Extension of Status  Cap Gap  Export Control, Section 6

Preparing the H-1B Petition  Practical Pointers:  Separate H-1B Filing Zone  Multiple levels of review  Mailing Labels prepared in advance  Petition Tabs and Exhibits copied ahead of time  Double Check Filing Fee Checks – separate checks  Pizza party April 1, 2013!!

After the H-1B Approval by USCIS

After the Approval  Consular Processing:  DS-160  Issue Spotting:  When does Attorney-Client relationship end?  Closing the file  FDNS site visit

Elaine Kumpala Sarah Peterson Stensrud Questions?