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Filing Academic H1B Petitions

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Title: Filing Academic H1B Petitions


1
Filing Academic H-1B Petitions
  • Region VII NAFSA 2008
  • Atlanta, GA
  • October 26-27

2
Presenters
  • David Ware, David Ware Associates, Metairie,
    LA, Jackson, MS, Pensacola, FL, Baton Rouge, LA
  • Terry Eiesland, Emory University
  • Marc Amos, Kuck Casablanca, Atlanta, GA,
    Gainesville, GA, Dalton, GA, Miami, FL
  • Kristen Hagen, Florida State University

3
Objectives
  • H-1B processing
  • Case Management
  • Institutional Policy
  • Lecture/Exercises Case Studies

4
Outline
  • Intro to H-1B
  • Information Gathering Employer, Job, Employee
  • Prevailing Actual Wages
  • LCA
  • I-129 and putting it all together
  • BREAK

5
Outline
  • Inspection Files
  • Employment Issues
  • Alternatives
  • Alligators
  • Day II
  • More Alligators
  • Institutional Policy, Managing Expectations
  • QA, Exchange of Ideas

6
What is An H1B 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 bachelors
    degree.
  • Three years professional level experience may
    substitute for each year of Bachelors lacking.

7
What Are Other Parameters of the H1B?
  • Employment is limited to the employer(s) who
    petition(s) for the employee. May hold more than
    one H1B at same time. H1B may be part time.
  • Employment is generally limited to six years with
    ALL employers (unless employment-based permanent
    residence begun by end of 5th year).
  • Employment must be directly related to degree
    program.
  • H1Bs are limited by strict fiscal year quotas.
  • The H1B beneficiary may have dual intent.

8
What Are the Employers Obligations?
  • Must agree to employ beneficiary as set out in
    the petition.
  • There must be a logical nexus between the
    institutions needs and the nature of the
    position.
  • 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. Note separate DOL database for
    academia.
  • Safe harbor only if wage obtained from DOL.
  • Basically, this means that a competitive wage
    must be offered.

9
Employers 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.

10
Employers Obligations?
  • Must agree to employ H1B only in geographic
    location(s) set out in labor condition
    application.
  • Must agree to pay return transportation to
    country of nationality if H1B terminated before
    end of H period (but not enforceable).

11
Whats Filed and When?
  • First is Labor Condition Application. Filed
    electronically with Department of Labor.
  • Next is H1B 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 H1B, along with family
    members.
  • If outside US, or traveling following change of
    status, must obtain H1B visa at US consulate.

12
Any Pitfalls?
  • Horrible quota problems!
  • Currently H1Bs are limited to about 78,000 plus
    leftover H1B1 numbers.
  • 58,000 for those with no US earned Masters.
  • --20,000 for those with US earned Masters or
    higher.
  • 6,800 reserved for H1B1 for citizens of Chile,
    Singapore (unused numbers fall back during
    first 45 days of new FYonly 589 last year).

13
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
    nonprofit entities, non profit research and
    government research organizations, and physicians
    granted a waiver of the two year home residence
    requirement for Js. Note that most govt.
    entities and non profits are NOT exempt from
    quotas.
  • An H employee for a quota-exempt employer was
    not counted against the quota, unless H petition
    approved prior to October 20, 2000.

14
Affiliation to Higher Ed
  • Many nonprofits have some affiliation to higher
    ed.
  • The key to getting an H outside the quota may lie
    in identifying such affiliation.
  • Many K-12 schools, state agencies enjoy such
    affiliation.
  • Look for or create written agreement.

15
Quota Statistics
  • FY 2008 regular quota exhausted April 3. All
    cases received April 2 and 3 were placed in a
    lottery. About one in four chance of selection.
  • US Masters quota exhausted April 30.
  • This means most people will be locked out of H
    until October 1, 2008.
  • Earliest application now for quota April 1,
    2008, for work to start October 1, 2008.

16
Quota Pitfalls?
  • Major problem arises when OPT or AT will end
    prior to the beginning of H1B petition approval,
    plus the students (60 day) or exchange visitors
    (30 day) grace period.
  • In years prior, immigration generally published
    gap rule allowing Js and Fs to maintain
    status during this period, remain in the US, but
    not work.
  • For several years NO GAP RULE.

17
H Strategies for Student Advising
  • Gap strategies
  • Time grad for August or December
  • Change to B 2
  • Enroll for new course of study
  • Leave US
  • Work for company abroad
  • Change to dependant status
  • Apply before completion of grad degree if
    undergrad relevant to job
  • File for permanent residence through employer
  • H 3 and J trainee categories
  • Other, similar H1B1, E 3, TN, E 2, L 1, R 1, O 1

18
H Strategies for Student Advising
  • Avoiding the quota
  • H in last six years?
  • Concurrent employment cap/non cap employers
  • Affiliation of non profit with institution of
    higher ed? Create/firm up an affiliation?
    Possibilities K 12 schools state agencies.
  • Non profit research organization?
  • Working at rather than for institution of
    higher ed?

19
Grad Date and H1B Cycle
  • Current H1B quota problems make May graduation
    very difficult, August less so and December
    ideal. Why?
  • May 15, 2007 OPT until following May 14 no H1B
    until October 1, 2008. GAP!
  • August 15 OPT until following August 14 no H1B
    until October 1, 2008. POSSIBLE GAP!
  • December 15 OPT until following December 14
    student applies for H1B 4/1/08 gets it 10/1/08.
    NO GAP!

20
Specialty Occupation
  • 8 CFR 214.2(h)(4)(iii)(A)
  • Standards for specialty occupation position. To
    qualify as a specialty occupation, the position
    must meet one of the following criteria
  • (1) A baccalaureate or higher degree or its
    equivalent is normally the minimum requirement
    for entry into the particular position
  • (2) The degree requirement is common to the
    industry in parallel positions among similar
    organizations or, in the alternative, an employer
    may show that its particular position is so
    complex or unique that it can be performed only
    by an individual with a degree
  • (3) The employer normally requires a degree or
    its equivalent for the position or
  • (4) The nature of the specific duties are so
    specialized and complex that knowledge required
    to perform the duties is usually associated with
    the attainment of a baccalaureate or higher
    degree.

21
Wages
  • Actual Wage 20 CFR 655.731(a)(1)
  • Prevailing Wage
  • SESA Florida http//www.floridajobs.org/WPS_ALC/p
    rev_wages.html
  • Online Wage Library http//www.flcdatacenter.com

22
Form I-797
  •  Approval notice received when someone applies
    for a change of nonimmigrant status.
  • Petitioners/Applicants Section
  • Aliens Evidence of approval
  • New I-94 card

23
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24
What if Size H Doesnt 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 Bachelors degree. TN given
    in one year increments requires residence abroad
    (no dual intent).

25
Not Size H?
  • H1B1 visa for Chile, Singapore very similar to
    normal H1B, except granted in one year
    increments, requires residence abroad (no dual
    intent).
  • E 3 for Australian citizens again very similar
    to H1B minimum Bachelors, 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.

26
Not Size H?
  • E 1/E 2 if persons country of nationality has
    an trader/investor treaty with US, investment of
    as little as 50K in a job-creating business can
    mean a visa for life, work permit for spouse.
  • L 1A/L 1B if person was employed by a company
    abroad for at least a year before coming to the
    US, and company abroad wish to employ him/her in
    US work permit for spouse. Caution highly
    technical.
  • 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.

27
Other Alternatives to H1B
  • O alien of extraordinary ability, achievement
  • A diplomat
  • G international organization representative
  • I international media representative
  • Proceed directly to permanent residence? Careful
    if both employee and spouse born in China or
    India or if job requires less than MS or BS plus
    five years exp.

28
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30
Louisiana Yard Dog (Alligator)
  • Dr. Don Tnowitall, in valid H status and having
    been approved for advance parole via an
    employment based application for adjustment of
    status, travels to visit his elderly mother in
    Professorlandia, and since that countrys US
    consulate is renowned for its lines, he returns
    on AP rather than get a new H visa there. He has
    no EAD.

31
Nice Puppy! No Biting!
  • Q Does Dr. T need an EAD to continue to work for
    your institution on return?
  • Q His H petition (and previous I 94) is set to
    expire in one month.
  • Can you extend him?
  • Should you extend him?
  • How do you do this?
  • Q Same questions for wife, who is using an EAD.

32
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34
Resources
  • Regulations at 8 CFR 214.2(h) www.uscis.gov
  • Dept. of Labor regulations 20 CFR 655 and 656
    http//www.foreignlaborcert.doleta.gov/reg.cfm
  • Dept. of Labor Foreign Labor Certification
    http//www.foreignlaborcert.doleta.gov
  • Agency for Workforce Innovation
    http//www.floridajobs.org/WPS_ALC/prev_wages.html
  • Prevailing Wage research http//www.flcdatacenter.
    com

35
Resources
  • Dept. of State www.travel.state.gov (visas)
  • American Council on International Personnel
    (ACIP) www.acip.com
  • H-1B Handbook by Austin T. Fragomen, Jr., Careen
    Shannon and Daniel Montalvo (published by
    Thomson/West)

36
Resources
  • Online LCA http//www.lca.doleta.gov
  • Employ Florida Marketplace https//www.employflori
    da.com
  • PERM www.plc.doleta.gov
  • USCIS www.uscis.gov

37
  • THANK YOU!
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