1. Larry Needle  Lawrence J. Needle is with the law firm of Lawrence J. Needle, P.A. in Columbia, South Carolina and Charleston, South Carolina. His practice consists of business immigration, family immigration, as well as employment matters. Previously, Mr. Needle practiced immigration law and commercial litigation in Houston, Texas. He has represented a number of employers and foreign nationals with regard to a wide range of employment matters and business-related visas, both on a temporary and permanent basis. He also advises employers regularly regarding procedures for employment eligibility verification.

2. Larry Needle, continued…  Mr. Needle is Treasurer of the Carolinas Chapter of the American Immigration Lawyers Association, an author of numerous articles on immigration issues, and a frequent speaker at seminars on immigration and employment issues. He serves as Special Counsel to Malone, Thompson, Summers, & Ott, L.L.C. Mr. Needle is a graduate of Georgetown University’s School of Foreign Service and received his law degree from Georgetown University Law Center.

3. H-1B Specialty Workers  A total of 65,000 visas are available annually for foreign nationals in "specialty occupations." A specialty occupation involves the theoretical and practical applications of a body of highly specialized knowledge, and the attainment of a Bachelor’s Degree (or its equivalent) or higher degree in the specific specialty. A job requiring such a Bachelor’s Degree is also essential.

4. H-1B, continued… An employer seeking to hire a professional from abroad must first file and obtain approval of a labor condition application filed with the Department of Labor making the following attestations:  No strikes or lockout at the place of employment;  The alien will be paid higher of the actual wage or the "prevailing wage” for the offered position; and  No U.S. workers will be adversely affected by the hiring of the alien

5. H-1B, continued…  H-1B visas may be conferred in three-year increments. A total of six years is permissible in H-1B status, buy may be extended in certain circumstances where (1) an employer has filed a labor certification for the employee prior to the end of 6 years in H-1B status seeking permanent residence, or (2) where the employer filed an I-140 immigrant petition which has been approved and where immigrant visas are not available in a respective employment based visa category.

6. H-1B Professional or Specialty Worker Status  Jobs requiring at least a Bachelor’s Degree or higher  H-1B cap. However, there is an exemption to cap for universities as well as non-profit university affiliates. A non- profit organization or governmental research organization filing an H-1B is also exempt from the H-1B quota. Once counted against the H-1B quota, an individual is not counted once more against the subsequent quota;  H-1B is good for 3 years at a time, up to a limit of 6 years; H-1B allows “dual intent” by which the individual may be in the United States temporarily but still have an intention of residing permanently in the USA;  Spouse and children in admitted in H- 4. However, spouse cannot work in H- 4 status.

7. Specialty Occupations H-1B Qualification Requirements  Requires a U.S. bachelor’s degree in the respective field from an accredited school; a foreign degree that is determined by an expert to be equivalent to a U.S. bachelor’s degree or an equivalent combination of education training and experience.  If the occupation to be filled requires a license at the employment location, the foreign worker must have such license, when the employer files the petition.

8. Specialty Occupations H-1B Evidence and Procedure  Labor Condition Application (“LCA”) to the Department of Labor: First, the U.S. employer must attest in a separate application to the U.S. Department of Labor that: H-1B non-immigrants will be paid wages which are at least the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or H-1B non-immigrants will be paid wages which are at least the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or

9. Specialty Occupations H-1B Evidence and Procedure (cont’d) The prevailing wage level for the occupational classification in the area of intended employment. The prevailing wage level for the occupational classification in the area of intended employment.

10. Specialty Occupations H-1B Prevailing Wage Determination  A prevailing wage determination can either be obtained from the OES Statistics of the DOL, a wage determination request from the national office of the DOL or from private wage surveys following the Department of Labor rules.

11. Specialty Occupations H-1B Labor Condition Application  The LCA must be posted at two conspicuous locations at the work site

12. H1-B Petition to USCIS  Second, a petition by the U.S. employer must be filed on Form I- 129 (incl. H-Supplement and I- 129W) with the appropriate USCIS Service Center  WITH THE PETITION the following documents should be submitted:

13. H1-B Petition to USCIS Documents: Documentation of the credentials of the employee to be transferred showing that he/she fulfills the job requirements and that he/she has a U.S. bachelors’ degree from an accredited school in the respective field; Documentation of the credentials of the employee to be transferred showing that he/she fulfills the job requirements and that he/she has a U.S. bachelors’ degree from an accredited school in the respective field; Detailed resume, educational degrees and/or diplomas and transcripts; a foreign degree that is determined by an expert to be equivalent to a U.S. bachelor’s degree or an equivalent combination of education training and experience; Detailed resume, educational degrees and/or diplomas and transcripts; a foreign degree that is determined by an expert to be equivalent to a U.S. bachelor’s degree or an equivalent combination of education training and experience; Professional License; Professional License;

14. H1-B Petition to USCIS Description of the position to be filled in U.S. showing that the position qualifies as specialty occupation; Description of the position to be filled in U.S. showing that the position qualifies as specialty occupation; Documentation of employee’s prior stay in the U.S. (e.g. copies of I-94’s,stamps in passport etc.); Documentation of employee’s prior stay in the U.S. (e.g. copies of I-94’s,stamps in passport etc.); If employee is already in U.S. in different status or for different employer, copy of such USCIS approval notice, visa, and I- 94, copy of passport; If employee is already in U.S. in different status or for different employer, copy of such USCIS approval notice, visa, and I- 94, copy of passport;

15. H1-B Petition to USCIS Documentation that the U.S. employer has the ability to pay transferee’s salary (e.g. recent financial statements); Documentation that the U.S. employer has the ability to pay transferee’s salary (e.g. recent financial statements); Confirmation of obligation to assist employee to travel back abroad after end of employment; and Confirmation of obligation to assist employee to travel back abroad after end of employment; and Certified Labor Condition Application Certified Labor Condition Application I-539 for spouse and children filed simultaneously I-539 for spouse and children filed simultaneously CAP GAP Rules for F-1 CAP GAP Rules for F-1 Stem Occupations Stem Occupations

16. Processing Time For Petitions to USCIS  Normal Processing usually takes 2 to 4 months, but “premium processing” within 15 days is available for this classification for an extra filing fee of $1,000. Currently only 65,000 new H-1B petitions are approved per federal fiscal year (October 1 –Sept 30) Additional 20,000 for those obtaining masters degree in USA;

17. Filing Time For Petitions to USCIS  As the maximum time allowed for filing early is 6 months – new petitions should be filed on April 1 (or within 5 business days thereafter) for a clearly indicated start date on October 1 of the same year to maximize chances.

18. Terms of Petition Approval, Visa and Admission  After admission, the employee is only allowed to work for the entity and in the capacity indicated in the petition; EXCEPTIONS  He/she can work for additional employers if additional H-1B petitions are approved.  Porting form one employer to another once the new employer files the H-1B Petition.  Rules Re: CAP SUBJECT / CAP EXEMPT

19. Terms of Petition Approval, Visa and Admission  Any preceding stays in H-1B or L-1 status are counted towards this maximum period unless the foreign worker has thereafter lived at least one year outside the U.S.;  Visas are issued and admissions are granted for up to the maximum term of an approved petition (plus 10 days for H-1B visa holders) and may be extended according to the petition extensions granted; **Extensions BASED ON PERMANENT RESIDENT PROCESSING

20. Terms of Petition Approval, Visa and Admission  No foreign residence need be maintained as long as the applicant intends to return to his country when his visa expires or unless in progress of adjusting status  Like L-1 workers, H1-B workers may travel outside the U.S. and return to the U.S. in H-1B status without negatively affecting a pending Adjustment of Status application or obtaining advance parole.  If in process of Adjustment of Status, H-1B workers can re-enter USA with H-1B visa or Advance Parole.

21. Employment -Based Immigration (i.e. Permanent Residence)  There are 140,000 visas available each year for those who are eligible to immigrate to the United States based on employment considerations. Before a visa will be issued to an intending, employment-based immigrant, however, an employer must normally first obtain a "labor certification" from the Department of Labor confirming that there is no willing and qualified U.S. worker who meets the minimum qualifications for the job for which the foreign national is being hired. Labor certifications may easily take more than one year to conclude, especially in event of audit by DOL. Employment based immigration is divided among several preferences. They are as follows:

22. EB-1 Extraordinary Ability  Extraordinary ability aliens are part of a small percentage who has risen to the very top in their fields. No job offer or labor certification is required under this category. A petitioner must submit evidence that he or she will continue to work in the United States in the area of expertise through letters from prospective employers; evidence of prearranged commitments for employment; and a description of how/she will continue to work in that field in the United States.

23. Extraordinary Ability, continued..  Criteria for demonstrating EB-1 "extraordinary status" include at least three of the following: receipt of lesser nationally or internationally recognized prizes or awards for excellence; membership in associations in the field requiring outstanding achievement of their members; published material about the alien in professional publications; evidence that the foreign national is a judge of the work of others in the field; evidence of the foreign national’s original contributions of major significance to the field;

24. Extraordinary Ability, continued.. authorship of scholarly articles; display of the foreign national’s work at artistic exhibitions; evidence that the foreign national has performed in a leading or critical role for an organization that has a distinguished reputation; evidence that the foreign national is highly paid; evidence of commercial success in the performing arts; or other comparable evidence of where the above standards do not readily apply to the field.

25. Outstanding Professors and Researchers  A U.S. employer is required to apply for an outstanding professor or researcher. However, there is no labor certification requirement which must be fulfilled prior to the employer’s filing the petition with the DHS.

26. Outstanding Professors and Researchers, continued…. The basic requirements for outstanding professors and researchers are as follows:  Internationally recognized as outstanding in a specific academic area;  Having a minimum of three years of experience teaching or research in particular area; and  If employer is a university or institution of higher education, the foreign national must be assuming a tenured or tenure-track position or a comparable research position at the university (permanent). If private employer, individual must be employed in a permanent research position, and such employer must employ at least three full-time researchers and show that it has achieved documented accomplishments in the academic field.

27. Outstanding Professors and Researchers, continued…. At least two of the following types of evidence must also be submitted:  Receipt of major prizes or awards;  Membership in associations requiring outstanding achievements of its members;  Published material in professional journals written by others about the alien’s work;  Evidence that the foreign national participates as a judge of work of others in the field;  Original scientific or scholarly research contributions to the field; and  Authorship of scholarly books or articles or in scholarly journals with international circulation in the academic field.

28. Multinational Executives and Managers  A multinational manager or executive is eligible for priority worker status if he or she has been employed with the employer for at least one year in the three years preceding entry to the U.S. with the parent, subsidiary or affiliate of the U.S. company abroad, or, in the case of an alien already in the United States, one of three years prior to transfer to the USA. The one year of required experience abroad must have been in a managerial or executive capacity.

29. Second Preference (Advanced Degree Holders / Exceptional Ability)  The second preference or category is reserved for those persons who are members of the professions holding advanced degrees or aliens of exceptional ability. There are 40,000 visas available annually. Aliens who hold advanced degrees or their equivalent possess at least the equivalent of a U.S. Masters Degree for a position which requires the degree. A Bachelor’s Degree and five years experience can qualify an alien, if the position ordinarily requires the Master’s Degree. Experience, however, cannot substitute for a Ph.D.

30. Second Preference, continued…  Aliens of exceptional ability must demonstrate at least three of the following: ten years of full time experience in the occupation; a license to practice the profession; an official academic record showing a degree, diploma or similar award from a university; evidence of a high salary; membership in professional associations; recognition for achievements and significant contributions to the industry by peers, governmental entities, or professional organizations; or other comparable evidence.

31. Second Preference, continued…  Foreign nationals also qualify under the second preference if, because of their exceptional ability in the sciences, arts, or business, they will substantially benefit the national economy, culture, educational interests, or welfare of the United States. In short, exceptional ability foreign nationals are those who possess a degree of expertise, which is well above that encountered ordinarily in the sciences, arts, or business.

32. Second Preference, continued…  Aliens of exceptional ability must demonstrate at least three of the following: ten years of full time experience in the occupation; a license to practice the profession; an official academic record showing a degree, diploma or similar award from a university; evidence of a high salary; membership in professional associations; recognition for achievements and significant contributions to the industry by peers, governmental entities, or professional organizations; or other comparable evidence.

33. Second Preference, continued…  An exceptional ability alien or a foreign national with an advanced degree is required to obtain a job offer and labor certification unless it can be shown that a waiver of this requirement is in the national interest. An exemption from these requirements may be granted upon a showing that the alien’s work is of substantial intrinsic merit and is national in its scope. There must also be a showing that the alien’s participation in his field considerably outweighs any inherent national interest in protecting U.S. workers through the standard labor certification process.

34. Third Preference  There are 40,000 visas reserved each year for skilled workers, professionals, and other workers. "Other workers" cover workers who are "capable of performing unskilled labor" and who are not working in a temporary or seasonal capacity. However, there are only 5,000 allotted to such unskilled workers. Skilled workers are those capable of performing skilled labor which require at least two years training or experience for the job.

35. Third Preference, continued  Relevant post-secondary education may count as training. Professionals are those who possess a Bachelor’s Degree or its foreign equivalent. Petitioners must also demonstrate that such a degree is the normal requirement for entry into the profession.  A job offer and labor certification is required for most foreign nationals under the third preference. However, there is a limited exception for physical therapists and nurses.

36. Visa Retrogression  As a result of heavy demand for employment- based immigrant visas, several categories of immigrant visas are currently over-subscribed, necessitating a possible wait of years before an applicant may obtain a green card. If there are sufficient numbers in a particular category to satisfy the qualified demand, the category is considered “current.” However, if the total of qualified applicants in a particular category exceeds the numbers available for the allotment for the particular month, the category is considered “over-subscribed” with a corresponding wait before a green card may be issued. Visa availability is established by the U.S. State Department.

37. Visa Retrogression, continued.. While employment categories were current for almost four years, this changed in 2005 due to several reasons:  The AC 21 Act had a pool of 131,000 employment numbers unused in prior fiscal years which allowed these re-captured numbers to be used by over subscribed countries. These categories were also current because of a substantial decline in the demand for numbers of adjustment of status cases. However, since 2005, we are faced with continuing heavy demand due to DHS, USCIS, and DOL backlog reduction efforts, resulting in a visa limit which is approximately 40% lower than fiscal year 2005. The lower annual employment limit is a direct result of the virtual elimination of the pool of AC 21 numbers.

38. Fourth Preference (Special Immigrants)  The fourth employment-based category is reserved for those "special immigrants" including ministers, religious workers, and others. There are a total of 10,000 visas available annually.

39. Fifth Preference (Investors)  The fifth category is reserved for investors in job-creating enterprises in the United States. Although typically the investment must be in excess of $1 million, this preference also covers investments starting from $500,000 in certain instances. The amount of money required to be invested may vary depending upon which area of the country such investment is made. Up to 10,000 visas a year may be issued to such individuals. Moreover, at least ten U.S. workers must be employed by each investor.