Preparing for the H-1B Lottery: What Employers Need to Know Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd. Suite 1700 317 Madison Ave. Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840 www.klaskolaw.com

Preparing for the H-1B Lottery Agenda Legislative & Regulatory Proposals Preparing for this Year’s H-1B Crunch Service Center Issues Covering the “Cap Gap” Avoiding H-1B Quota Alternative Visa Options Q & As

Legislative & Regulatory Proposals This Year’s Quotas: 58,200 + remaining Chile and Singapore (6800 subtracted) Last year’s cap reached on first day (133,000 petitions filed) “Master’s Cap” – 20,000 petitions for persons with Master’s or higher degree from U.S. university Last year: open for 1 month This year – also a “Day 1” lottery?

Legislative Fixes Proposed (Not Passed) “SKIL” Bill addressing H-1B issues Raise cap to 115,000 base “Market escalator” if cap reached No cap for U.S. Master’s degree

Legislative Fixes Proposed (Not Passed) (cont’d ) Proposed as Part of Comprehensive Immigration Reform and as Stand-Alone Bill Opposition to CIR generally and to stand-alone H-1B relief Counter-Proposals: Recruitment attestations, limit number per employer, restrict 3rd party placement.

Regulatory Fixes? Extension of OPT for F-1s to 29 mos? Gives 2 chances to apply May be limited to STEM fields May require employer to participate in e-Verify USCIS supports, but ICE “owns” SEVIS

Regulatory Fixes? (cont’d ) Prohibiting Multiple Filings by rule? Not currently prohibited, but frowned upon Unclear how it could be written and cleared soon enough Definition difficulties – same employer, different jobs? H-1B “Pre-Registration” System? Meant to prevent “Day One” crush Requires complex new regulations – shelved for now

Preparing for This Year’s H-1B Crunch Identify cases early – by February Look at Meeting Requirements on April 1 May 2008 Bachelor’s Graduates – finish early? OR rely on experience plus education? Master’s Cap – rush requirements completion to hit April 1 File LCAs Early – give up time on back end

Preparing for This Year’s H-1B Crunch (cont’d ) Create Reasonable Expectations About Hiring Look at Lottery chances Have a “Plan B” Improving Chances in the Lottery Premium Processing? Probably Not Multiple Opportunities for One Employee Be Aware of Multiple Employers for one Employee Multiply Filings for the Same Opportunity? Over-recruiting and Over-filing for Similarly Skilled Professionals Overseas

Preparing for This Year’s H-1B Crunch (cont’d ) Be Aware of Delays in Receipting and Acceptance Be Aware that Master’s Cap Also Needs “Day One” Filing Be Ready for Last-Minute Changes

Service Center Issues Bi-Specialization and Filing Unclear Whether One Location or Two Last Year’s Receipting Process When is H-1B “counted”? Apparently upon petition approval Must H-1B Start Work on 10/1? Change of Employer effective 10/1?

Covering the “Cap Gap” What is the “cap gap”? Change of status versus petition approval Options for interim status B-2 F-1 registration as continuing student H-4 or other derivative status

Covering the “Cap Gap” (cont’d ) Timing of an Application to Close the Gap before 4/1 Travel after approval of the Change of Status? “Last Action” rule? Travel and Reentry more Prudent Timing Portability – until approved? or after? Distinguish from Legal Status

Avoiding H-1B Quota Exemption based on employer Universities Non-profit affiliated with universities Non-profit or gov’t research organization Or place of employment, law says “at” Exemption based on employee Previously counted Singapore/Chile Concurrent employment

Alternatives to H-1B Alternative Visa Options O-1 E-3 (Australians) TN (Canadian/Mexicans) J-1 (new rules limiting applicability) H-3 (training for position abroad) E visas (treaty between home & US)

Alternatives to H-1B (cont’d ) Alternative Visa Options (cont’d) L visas (work for company overseas, transfer to US) I visa (journalists – disseminate news abroad) EAD through spouse’s status J-2 E L-2 I-485

Alternatives to H-1B (cont’d ) Alternative Visa Options (cont’d) Straight To Permanent Residence Employment-Based First Preference Concurrent Filing of I-485 EAD 90 Days after filing May take 90+ days to prepare Possible India/China Quote Issue later this year

Alternatives to H-1B (cont’d ) Alternative Visa Options (cont’d) Employment-Based Second Preference Concurrent filing (except India/China) NIW or Labor Certification Requirement Labor Certification Timing: 90+ days to prepare, 60-90+ days to adjudicate

Questions?

Speaker Contact Information William A. Stock, Esq. Tele: 215.825.8607 Fax: 215.825.8699 E-mail: wstock@klaskolaw.com Suzanne B. Seltzer, Esq. Tele: 212.796.8846 Fax: 212.297.1799 E-mail: sseltzer@klaskolaw.com Elise A. Fialkowski, Esq. Tele: 215.825.8647 Fax: 215.825.8699 E-mail: efialkowski@klaskolaw.com