Presentation on theme: "The H-1B Visa. 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."— Presentation transcript:
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
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
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
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
Cont. Other Nonimmigrant Visas Miscellaneous other visas (diplomats, cultural exchange, etc.)
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
Concurrent Employment An alien can work concurrently for two or more employers pursuant to H-1B petitions. The H-1B Visa
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.
Definition of Specialty Occupation 1)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
Examples of Specialty Occupations Examples: Engineer Computer scientist Physician Professor Accountant Teacher
Examples of Non-Specialty Occupations Waitress with a Ph.D. in linguistics Life insurance agent General/office manager Customer service representative in nontechnical field
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
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.
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.
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
Fiscal Year for the H-1B Cap Visas become available October 1 st of each year. The fiscal year runs from October 1 st to September 30 th.
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.
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 1 st to April 7 th are subject to a computerized random lottery.
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.
Processing via Change of Status An F-1 student can change status and remain in the US after the petition is approved for October 1 st only if the student’s F-1 status, including the 60- day grace period, is through October 1 st. No gap in status is allowed to change status. Changing Status from F-1 to H-1B
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 1 st, the F-1 student would have to leave the country and reenter on October 1 st of that fiscal year.
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.
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.
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 1 st 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
Requirements for Cap-Gap Extension of Status and Work Authorization H-1B petition timely filed Requested change of status October 1 st start date No violations of F-1 status Terminates upon the rejection, denial or revocation of the H-1B petition
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:
Cont. OPT STEM Extension Computer Science Applications Actuarial Science Engineering or Engineering Technologies Life Sciences Math Military Technologies Physical sciences
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
Cont. OPT STEM Extension Report to the DSO regarding changes in the program or address Properly maintain status in the US
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.
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
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)
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.
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
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.
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.
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
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
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.
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
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
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
Filing Fees and Attorney Fees The employer must pay certain fees (ACWIA, fraud) Certain employers are exempt from those fees
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
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.
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.
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