H-1B’s and “The Road to the Green Card”: What students need to know about U.S. Immigration Law Presented by: David H. Nachman, Esq. and Victoria Donoghue, Esq.

Overview H-1B Visas & Alternatives/Gap Fillers H-1B Visas & Alternatives/Gap Fillers Employment Based Permanent Residence Employment Based Permanent Residence

H-1B Visas Temporary Professional Visas For Professional-Level workers who are coming to the US to work for a US employer in a specialty occupation – –Alien must possess at least the equivalent of a US Bachelor’s degree AND – –Job offer must require at least a Bachelor’s – –“Three for One Rule”- 3 yrs of work experience can be substituted for 1 yr of academic study in order to equate the work experience to a Bachelor’s

Examples of Specialty Occupations Some occupations in the regulations: Chemist, biologist, engineers, physicists, software developers, system analysts, accountants, economists, teachers, architects If an occupation is not in the regulations, is a Bachelor’s degree normally required?

Period of Validity Generally valid for a total of 6 years Time spent outside of the US can be recaptured Some exceptions available where additional time in H-1B status will be granted in 1 year increments beyond the 6 year period

Employer Specific H-1Bs are employer specific, but – –Concurrent H-1Bs are permitted, and – –H-1Bs are portable – –Part-time employment is permitted

Cap on H-1B Visas Numerical Limitation: 65,000 annually Additional 20,000 visas for those with US advanced degrees Cap was met for non advance degree cases on first day of filing for FY receiving over 180,000

Exemptions from the H- 1B cap Current H-1Bs seeking extensions or transfers to another employer (the cap limits the number of requests for initial employment that CIS may approve each year) Statutorily exempt employers such as institutions of higher education and nonprofit research organizations

H-1B Petitions H-1B petitions include: – –Form G-28 – –Form I-129 with H supplements – –Certified Labor Conditions Application (LCA) – –Supporting Documentation

Supporting Documentation Petitioner’s detailed letter of support describing the job duties Copy of the foreign national’s Bachelor’s degree and transcripts Evidence that the individual has obtained any required license for the proposed position Evidence of the foreign national’s legal nonimmigrant status

Supporting Documentation (cont.) If the foreign national possesses a foreign degree, an educational evaluation must be obtained from a USCIS-recognized evaluation service indicating that the foreign degree is the equivalent of the US degree. If the 3 for 1 rule is being used, evidence of the experience

The Labor Conditions Application (LCA) Attestations made to the US Department of Labor (DOL) by an employer seeking to hire employee(s) as an H-1B worker(s). Sets forth the number of workers sought, the occupational classification, the prevailing wage, the method used to determine the prevailing wage, and the actual wage rate paid LCA must be available for public inspection within one day of filing the LCA with the DOL

Public Access File Employer must maintain a Public Access File which is accessible to the public PAF must be maintained at either employer’s principal place of business in the US or worksite of employee PAF must be available for public inspection within one working day after filing the LCA with DOL

PAF Contents Completed and signed LCA Wage Rate Statement (documentation of wage to be paid) Actual Wage Memorandum Prevailing Wage documentation Evidence of notifying employees or union regarding LCA Summary of benefits offered to US workers Explanation of differentiation in benefits if H-1B worker is not receiving same benefits as US workers

H-1B Alternatives E Visa E Visa L Visa L Visa O Visa O Visa P Visa P Visa R Visa R Visa B-1 Visa B-1 Visa TN Visa TN Visa E-3 Visa E-3 Visa

H-1B Gap Fillers Take a long vacation Take a long vacation Temporarily change to visitor visa Temporarily change to visitor visa Reinstate student status Reinstate student status Temporarily change to a nonimmigrant training visa (H-3) Temporarily change to a nonimmigrant training visa (H-3) B-1 Visa in Lieu of an H-1B visa Extension of OPT from 12 to 29 months for individuals with STEM degrees employed by an E- verify employer J-1 training visa

Employment Based Permanent Residence Requirements: Full-time employment Full-time employment Attainment of DOL Labor Certification Attainment of DOL Labor Certification Ability to pay Ability to pay Availability of Immigrant visa number Availability of Immigrant visa number

1 st Preference (EB1): No Labor Cert Required Outstanding Professors & Researchers Outstanding Professors & Researchers Aliens of Extraordinary Ability Aliens of Extraordinary Ability - Top of their field

EB1 Evidence Publications Publications Presentations at International Symposia Presentations at International Symposia Judging the Work of others Judging the Work of others International Prizes International Prizes Patents Patents Contribution of Original Research in the field Contribution of Original Research in the field

2 nd Preference (EB2): Labor Cert Usually Required Advanced Degree Professional Advanced Degree Professional - Job requires a degree beyond a BA

National Interest Waiver: NO Labor Cert Required Seeking employment in an area of “substantial intrinsic merit” Seeking employment in an area of “substantial intrinsic merit” The benefit will be national in scope The benefit will be national in scope The national interest would be adversely affected if a labor cert were required The national interest would be adversely affected if a labor cert were required

3 rd Preference (EB3): Labor Cert Required Aliens who hold Bachelor’s degrees and are members of the professions Aliens who hold Bachelor’s degrees and are members of the professions Aliens capable of performing skilled labor Aliens capable of performing skilled labor Aliens capable of performing unskilled labor Aliens capable of performing unskilled labor

Procedure for PERM Position & Prevailing Wage Determination （ PWD ） Posted Notice, In- house Media, Job Order, & Advertisements Recruitment Report Filing DOL Process DOL Notice （ Approval or Audit Request ） Response to Audit Request from DOL Final Approval or Denial

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