H-1B & Other Employment Visas Andy Buffington Davies Pearson, P.C. Tacoma, WA

H-1B Visa Benefits Nonimmigrant visa Valid for up to six years Three years at a time Grants work authorization Dual intent authorized

H-1B Requirements Employer must petition for beneficiary “Specialty occupation” Bachelor’s Degree Equivalent work experience (3/1 rule) Employer must pay prevailing wage

Examples of Specialty Occupations Engineer Computer Scientist Professor Accountant Teacher

Examples of Non-Specialty Occupations Receptionist Waitress with a Ph.D. Customer Service Rep

H-1B Fees I-129 petition filing fee: $325 ACWIA fee: 25 or fewer employees = $750 More than 25 employees = $1,500 Anti-fraud fee = $500 Premium processing (optional): $1,225

H-1B Cap 65k for bachelor degree jobs Additional 20k for advanced degree jobs April 1st filing date October 1st employment start date FY 2015 cap reached on 4/7/ k applications received

Cap Exemptions Cap exemptions include: Alien changing H-1B employers Extensions of H-1B status Any applicant counted against the cap within 6 years Institutions of higher education Non-profits (affiliated with institutions of HE) Governmental research organizations

H-1B Application Process Two-Step Process Employer files Labor Condition App with DOL Employer files I-129 petition with CIS Upon approval, nonimmigrant’s status changed to H-1B if in US. 3 rd Step For Applicants Abroad Upon I-129 approval, applicant obtains H-1B visa via US consulate

H-1B Admission/Extension Status granted for up to 3 years at a time and maximum of 6 years Status extended beyond six years if LPR application process pending Note: LPR process can be started before, during or after filing H-1B petition

H-1B Portability Change of employer allowed Employee can commence employment with new H-1B employer upon filing new petition Cannot be out of status when new petition filed Can work concurrently for two or more employers pursuant to H-1B petitions

OPT AND STEM OPT: Optional Practical Training OPT allows for 12 months of training post-graduation for F visa students Must get a Designated School Official (DSO) rec. DSO recommends extension and student files I-765 May file no earlier than 90 days before end of academic year and no later than 60 days after program end date F-1 students with STEM degrees can get OPT extended from 12 to 29 months

Maintaining OPT Status May not aggregate over 90 days unemployment during 12 OPT months STEM: May not aggregate more than 120 days of unemployment during entire 29 months 60 day grace period to leave US at the end of the OPT or STEM extension Automatic extension of stay until October 1 and EAD for F-1 student with pending H-1B petition

Other Nonimmigrant Visas O-1 Extraordinary Ability B-1 or B-2 visitor P Entertainer or Athlete

Obtaining LPR Status Process can occur while in H1-B status 3 Steps to employment-based LPR status (1) Approved labor cert from DOL (2) I-140 immigrant petition (3) When visa available, file I-485 Note: File via US consulate if abroad

Labor Certification Establishes that no U.S. workers qualified, willing and able to fill the job Employer must show pattern of recruitment before filing an LC application with DOL Sustained advertising of job opening Valid job offer Prevailing wage PERM: Program Electronic Management System

Employment Categories There are 5 distinct preference categories of employment based immigrant visas. (1) EB-1: Aliens of extraordinary ability in Science, Arts, Education, Athletics or Business (2) EB-2: Members of professions holding advanced degrees and aliens of exceptional ability in business, science and arts

Employment Categories (3) EB-3: Professionals with relevant bachelor’s degrees, skilled workers and unskilled workers (4) EB-4: Certain religious workers, ministers, international organizations (5) EB-5: Persons who invest either $500,000 or $1 million

Visa Backlog Not all EB visas are immediately available DOS monthly visa bulletin China: 5 year EB-2 wait; 1.5 year EB-3 wait India: 9.5 year EB-2 wait, 10.5 year EB-3

Resources U.S. Citizenship & Immigration Services U.S. Dept. of Labor U.S. Dept. of State