[ w w w. d u a n e m o r r i s. c o m ] Overview of the H-1B and Labor Certification Programs Presented by Lisa Spiegel

[ w w w. d u a n e m o r r i s. c o m ] Introduction to H-1Bs ● 65,000 per fiscal year (beginning Oct. 1) ● 20,000 reservation for holders of master’s degrees or higher from U.S. institution  Additional filing fees:  $320 base + $500 fraud fee and training and scholarship fee:  Historically, the H-1B training fee was $500, as mandated in ACWIA of 1998; then increased to $1,000 in 2000 and now $1500/$750

[ w w w. d u a n e m o r r i s. c o m ] Benefits to the U.S.: H-1B Fees ● Benefits to the U.S. as a result of increased filing fees:  The mandated scholarship & training fees are approaching $2 billion, since 1999, according to National Foundation for American Policy  H-1B fees have funded more than 40,000 scholarships for U.S. students in math and science through the National Science Foundation  Fees have funded hands-on science programs for middle and high school students and 3,700 teachers + 55,000 U.S. workers  In 2006, DOL announced $195 million investment in 13 regional economies

[ w w w. d u a n e m o r r i s. c o m ] Labor Condition Application (LCA) Regulations – Designed to Protect the.S. Workforce ● H-1B worker will be paid no less than the greater of either the ACTUAL WAGE or the PREVAILING WAGE ● Wage offer to include benefits and eligibility for benefits provided as compensation for services, which are to be offered to the H-1B on the same basis as to U.S. workers ● Provide working conditions for H-1Bs that will not adversely affect the working conditions of workers similarly employed ● No strike or lockout in the course of a labor dispute in the occupational classification at the place of employment

[ w w w. d u a n e m o r r i s. c o m ] LCA Wage Requirements ● All employers seeking to employ H-1B nonimmigrants must state on Form ETA 9035/E that the H-1B employee will be paid the required wage rate. ● The wage paid must be the GREATER of the actual wage rate or 100% of the prevailing wage ● Actual wage = rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment ● Prevailing Wage = weighted average rate of wages (add the wages paid to workers similarly employed in the area of intended employment and dividing the total by the number of such workers.)

[ w w w. d u a n e m o r r i s. c o m ] Final Attestation: Notice ● Employer must provide notice of the filing of the labor condition application to: ● Bargaining representative of the employer's employees in the occupational classification in the area of intended employment of H-1Bs ● If there is no such bargaining representative, affected workers by providing electronic notice of the filing of the LCA or by posting notice in conspicuous locations at the place(s) of employment ● Copy of the LCA to each H-1B nonimmigrant at the time that such nonimmigrant actually reports to work

[ w w w. d u a n e m o r r i s. c o m ] Positive Impact on U.S. Workers ● U.S. IT professionals have a lower rate of unemployment – 2.4% vs. 4.6% overall in 2006 ● Since 2003, new net jobs in the U.S. has increased by over 8 million, acc. to BLS ● BLS projects growth of over 100,000 jobs in computer, math & science between , the highest of all white collar professionals ● In 1993, there were 200 internet companies; now there are 2 million – acc. to the founder of Netscape ● Studies show that 1 in 4 high technology companies had an immigrant founder ● From 1995 – 2000, employment in science & engineering occupations grew from less than 200,000 to 4.8 million workers (acc. to NSF – a growth rate of 6.4% compared to 1.6% average for total employment)

[ w w w. d u a n e m o r r i s. c o m ] No Negative Impact on U.S. Professionals ● A study by a research economist at the Federal Reserve Bank of Atlanta found:  H-1B workers do not appear to depress earnings growth  Entry of H-1B computer programmers do not have adverse impact on unemployment rates  Some results showed a positive relationship between the number of LCAs and the unemployment rate a year later

[ w w w. d u a n e m o r r i s. c o m ] Foreign Students: Impact ● In 2005, 55% of master’s degrees and 67% of PhDs in electrical engineering degree holders from U.S. universities ● 57% of recent H-1B professionals earned a master’s degree or higher, acc. to DHS ● 2004 Intel Science Talent Search: 2/3 of high school finalists were children of immigrants

[ w w w. d u a n e m o r r i s. c o m ] Path to Permanent Residence ● PERM: labor certification application ● Immigrant Visa Petition ● I-485 Application to Adjust Status ● Difficulties:  long waiting lists for nationals of India and China  feeling of instability for workers and employers

[ w w w. d u a n e m o r r i s. c o m ] Permanent residence – new solutions? ● Semiconductor Industry Association (SIA) and Institute of Electrical and Electronics Engineers – United States of America (IEEE-USA), 10/11/2007 letter to Congress:  supporting retention of highly educated immigrants  part of broader competitiveness and innovation initiative

[ w w w. d u a n e m o r r i s. c o m ] Thank You Lisa Spiegel Duane Morris LLP One Market Spear Tower, Suite 2000 San Francisco, CA