1. Eileen Chun-Fruto eileen@chunfrutolaw.com 213-674-0599
Basic nonimmigrant options: H-1B and O-1 options for post-doctoral students
Eileen Chun-Fruto

2. Basics of the H-1B
Know that the H-1B is the standard work visa for professionals
85,000 & 2 Lotteries (65,000 available H-1Bs each fiscal year plus an additional 20,000 H-1Bs for advanced degree graduates of US universities and colleges)
An H-1B “quota number” is reserved for you upon petition selection/acceptance
Remember that the H-1B is limited to a specific employer, job position, location
You can change H-1B employers but will need a new petition for each employer
Inform your attorney early on if you will change work locations/your job duties change substantially because your employer must report these changes to CIS
Given in maximum increments of 3 years but can be less than 3 years depending on length of job offer
Limited to 6 years with a few exceptions
Can extend beyond 6 years if your green card case has been pending at least 1 year before your 6th year expires

3. H-1B CAP EXEMPTION (Not subject to the lottery)
4 TYPES OF EMPLOYERS:
Institutions of higher education
Non-profit entities which are “related to” or “affiliated with” institutions of higher education:
a nonprofit entity shall be considered to be related to or affiliated with an institution of higher education” if “[t]he nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.
Non-profit research organizations
Government research organizations

4. Spouse and Children Spouse and children eligible for H-4 status
Can attend school either part-time or full-time
Some H-4 dependents may now apply for employment authorization if the H-1B primary visa holder meets certain requirements
Other nonimmigrant work visas that allow spouses to obtain employment authorization are E-1, E-2, E-3 or L-1 status
An H-4 spouse can also hold separate, independent work visa, such as an L-1A, O-1, or H-1B, in his or her own right
An H-4 spouse becomes eligible for an employment authorization document when the H-1B spouse has an approved I-140 or the H-1B spouse has been granted an extension beyond their 6th year H-1B. (Note that the current administration is looking to change the regulation that allows for this benefit.)

5. H-1B Cap Usage FY2012-FY2019
FY 2019 – cap remained open until April 7, 2018
FY cap remained open until April 7, 2014
190,098 petitions were received
172,500 petitions were received
FY 2018 – cap remained open until April 7, 2017
FY2014 – cap remained open until April 5, 2013
199,000 petitions were received
124,000 petitions were received
FY 2017 – cap remained open until April 7, 2016
FY2013 – cap remained open until:
Regular cap: June 11, 2012
over 236,000 petitions were received
Master cap: June 7, 2012
FY2012 – cap remained open until:
FY cap remained open until April 7, 2015
Regular cap: November 22, 2011
Master cap: October 19, 2011
nearly 233,000 petitions were received
(FY 2008 was the last time H-1Bs were capped out in the first week)

6. BASIC H-1B Requirements
Need a U.S. Employer
Normally cannot be self-employed
Can be full or part-time
Salary must be prevailing wage for occupation and location
Employer must pay government filing and legal fees
Can have more than one employer but each must file separate H-1B petition
Need a Job Offer which qualifies as a Specialty Occupation
Must be Professional in nature
Usually Requires a Bachelor Degree or higher
Typical H-1B occupations: engineer, scientist, accountant, architect, etc.
H-1B employment starts October 1 of each year

7. How many times do I have to compete in the H-1B Quota?
Just once! If you are counted in an H-1B quota then you do not have to “compete” in the quota for 6 years
What if I leave the US before my 6 years are up and want to come back for H-1B employment? You are allowed to re-enter the US to complete your 6 years of H-1B time if you did not exhaust the full 6 year period before leaving the US
What happens if I lose my job?
H-1B workers now have a 60-day grace period to leave the US or to change employers if they are terminated before the end of their validity period.
There are limitations.

8. Basics of the O-1A Visa for Extraordinary Ability in the fields of science, education, business, or athletics
Must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:
(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or
(B) At least three of the following forms of documentation:

9. (B) At least three of the following forms of documentation:
( 1 ) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
( 2 ) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
( 3 ) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
( 4 ) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
( 5 ) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field;
( 6 ) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media;
( 7 ) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
( 8 ) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

10. Meeting the Standard for EA in Science, Education, Business, Athletics
The position itself does not require extraordinary ability
Extraordinary ability of the individual means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. (8 CFR 214.(o)(3)(ii)
Requires an advisory opinion by a peer group (a group or organization which is comprised of practitioners of the alien's occupation). If there is a collective bargaining representative of an employer's employees in the occupational classification for which the alien is being sought, such a representative may be considered the appropriate peer group for purposes of consultation.
Different legal standard for EA in Arts and Entertainment and Motion Picture

11. O-1 Petition
Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed
An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities
A written advisory opinion(s) from the appropriate consulting entity or entities
Affidavits, contracts, awards, and similar documentation must reflect the nature of the alien's achievement and be executed by an officer or responsible person employed by the institution, firm, establishment, or organization where the work was performed
Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability

12. Planning ahead for the greencard case
If you plan on staying in the United States long-term, need to plan ahead
It can take from 2 to 5+ years to obtain Permanent Residence depending on the preference category and your place of birth
Some nationalities, e.g. India and China, have much longer wait times
Can have H-1B status for 6 years, but more time is possible IF your green card application is filed before you enter the 5th year
Possible to change to another nonimmigrant visa category after 6 years in H-1B status (if otherwise eligible)

13. Thank You! Presented by Eileen Chun-Fruto CHUN FRUTO LAW CORPORATION
CHUN FRUTO LAW CORPORATION
155 N. Lake Ave., 8th Floor
Pasadena, CA 91101
Disclaimer:
This presentation is for general education purposes only and is not intended as legal advice. Questions about specific immigration matters should be presented in confidence to a qualified immigration lawyer.