Presented by Gerard M. Chapman, Board Certified Immigration Specialist Jessica Yáñez, Associate Attorney Kelly Gamble, Senior Paralegal © 2012 Gerard M. Chapman

The Current U.S. Immigration System Family-Based Cases nuclear family relationships only Employment-Based Cases Temporary Visas (H-1B Visa) Permanent Visas (Green Cards) “Other” Categories

Documents and what they mean Passport Visa I-94 card Approval Notices (read with care)

What is an H-1B work visa? Provides temporary legal status for professionals working in a specialty occupation. Substantive Requirements 1) U.S. Employer must sponsor the Employee (No self-sponsorship) Exception: solely owned company with independent board of directors 2) When case is sent to USCIS, Employee must have either: 4 year degree issued by a US institution of higher education foreign equivalent degree, or equivalent combination of education and/or experience 3) Job must require that kind of degree, or something very similar That degree must be the minimum educational requirement for this job in this industry everywhere in the U.S. 4) If job requires a professional license, employee must have license when case is filed with USCIS 5) Employer must pay Employee at least the prevailing wage

Procedures 1) (a) Obtain job description from HR (b) Determine appropriate job classification from O*Net (c) Determine prevailing wage 2) File Labor Condition Application (LCA) 3) Prepare H-1B Petition 4) Once LCA is approved, file H-1B 5) Create Employer & Public Access Files

Common Questions When can Employer file? April 1st for October 1st start date Avoiding the 65,000 “cap” and filing for earlier start date Apply under Master’s “cap” (additional 20,000 visas) Does Employee have the required educational credentials? When does Employee graduate with the degree? Must Employee have the actual degree or can he just finish required course work? Expert opinions where degree is from non-US college/university i. Credentials Evaluation ii. Experiential Evaluation

Common Questions Continued… When can the Employee begin working for the employer? Cases where employee is not working in the US now: Students (“Cap-Gap Rule”) Others Cases where employee is working in the US now: Portability and who can use Change of Status Premium Processing How long can the Employee work in H-1B status? Six Year Max Recapturing time spent outside the US Extensions based on pending green card case Rule restricted to H-1B workers

What are the Employer’s Obligations? Payment of filing fees Payment of legal fees May be negotiable with Employee if not contrary to employer’s prevailing wage obligation Complying with the LCA (Labor Condition Application) Paying the prevailing wage or actual wage (whichever is higher) Post the LCA Keeping a DOL File (only DOL can access) Keeping Public Access File (anyone) Pay return trip costs if Employee is terminated

What are the Employee’s Obligations? Work for the sponsoring employer In the position approved for H-1B status Cannot work for any other employer (or be self- employed) without USCIS permission What happens if Employee is promoted, changes positions or has salary deduction? New LCA – material changes New Petition – material changes

Alternatives to the H-1B TN (Trade NAFTA- Canada or Mexico) L-1A (Intra-company transferee – Executive or Manager) L-1B (Intra-company transferee – Specialized knowledge) L-2 (Spouse of L-1. Eligible for work authorization) E-1, E-2 (Investor visa) Spouse of E-1 or E-2 (Eligible for work authorization) O (Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics) J-1 (Exchange visitors) H-2B (Temporary (i.e. seasonal) workers for non-agricultural positions) F-1 (University Students)

Moving to the Green Card How the H-1B rules are different and how the H-1B case can harm the green card case Backlogs – See Visa Bulletin The 6 year max and how to extend it When can the employee file for Adjustment of Status? Green cards based on family relationships, and how they can affect the working relationship

Questions?