The Most Famous Work Visa of them ALL – the H-1B ...author.msba.org/.../MSBA/.../H1BPresentation020914.pdf · of them ALL – the H-1B Nonimmigrant VISA ... • Anti-Fraud Fee of

The Most Famous Work Visa of them ALL –

the H 1B Nonimmigrant VISAthe H-1B Nonimmigrant VISA

Part I Overview of the H1B Nonimmigrant Work VisaPart I – Overview of the H1B Nonimmigrant Work Visa

Part II – Helpful Practice Pointers/Reminders

Part III – H1B CAP SEASONPart III H1B CAP SEASON

Kellie Lego, Esq. MVP Law Group, P.A.10632 Little Patuxent Pkwy, Suite 406y,Columbia, MD [email protected]

Part I – Overview of the H1B Nonimmigrant Work Visa

H-1B visas are for temporary (nonimmigrant) workers engaged in a specialty occupation that requires:requires: (1) theoretical and practical application of highly specialized

knowledge and

(2) attainment of a bachelor's or higher degree or equivalent (2) attainment of a bachelor s or higher degree, or equivalent experience, in the specific specialty for entry into the occupation.

INA Section 214(i)(1) defines the term "specialty occupation" to mean "an occupation INA Section 214(i)(1) defines the term specialty occupation to mean an occupationthat requires (A) theoretical and practical application of a body of highly specialized knowledge, and(B) attainment of a bachelor (or its equivalent) or higher degree in the specific specialty as aminimum for entry into the occupation in the United States. Title 8, C.F.R.Section 214(h)(4) furtherdefines "specialty occupation" to mean "an occupation which requires theoretical and practicalapplication of a body of highly specialized knowledge in the fields of human endeavorapplication of a body of highly specialized knowledge in the fields of human endeavorincluding, but not limited to, architecture, engineering, mathematics, physical sciences,social sciences, medicine and health, education, business specialties, accounting, law,theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in aspecific specialty or its equivalent, as a minimum for entry into the occupation in the United States.“


Determining Whether or Not a Specialty Occupation? Must meet ONE of the following 4 criteria:

1. A baccalaureate or higher degree or its equivalent is normal minimum requirement for entry into the position (See O*Net at minimum requirement for entry into the position (See O Net at

http://online.onetcenter.org/; See OOH at http://www.bls.gov/ooh/),

2. Degree requirement is common in industry or the particular l h d dposition is so complex or unique that a degree is required;

3. Employer normally requires a baccalaureate or higher degree or its equivalent for entry into the position; orits equivalent for entry into the position; or,

4. Duties of the position are so complex and specialized so as to be associated with attainment of bachelor’s or higher degree.

O*NET Online – Computer Programmer Position

OOH – Computer Programmer Position


Examples of Specialty Occupations Engineer

Computer Scientist

Physician

Professor

Accountant

Teacher Teacher


The foreign national must have at least a U.S. bachelor’s degree in the related field or:

1) F i d i i l t 1) Foreign academic equivalent;

2) Equivalent work experience (3/1 rule); or

3) Combination of both

A professional credential evaluation is needed to determine education and/or experience equivalency questions experience equivalency questions.

If the degree was obtained in the United States, please check the US Department of Education Database of Accredited Postsecondary Institutions Department of Education Database of Accredited Postsecondary Institutions and Programs to ensure that the school is in fact accredited http://ope.ed.gov/accreditation/

U.S. Schools – Accreditation Details


Wage RequirementsThe employer must pay at least the prevailing wage or the

t l hi h i hi h f th ff d itiactual wage, whichever is higher for the proffered position.

The actual wage is the wage paid by the employer to US workers, in the same position, at the same work site, with , p , ,similar experience and qualifications.

The prevailing wage is determined based on minimum requirements for the position and the area of intended requirements for the position and the area of intended employment.

The Department of Labor’s website provides four wage levels at http://www.flcdatacenter.com/OesWizardStart.aspx.

A private survey may be obtained.

Department of Labor (DOL) - OFLC Online Data Center


A Certified Labor Condition Application (“LCA”) is required of all H-1B petitions. 20 C.F.R. 655.700-655.855.

LCA is associated with four employer attestations:(1) The Employer will pay the H-1B worker wages that are the higher of (a) the actual wage and (b) the prevailing wage for the occupational classification in the area. The higher figure is the required wage.

(2)The Employer will provide working conditions for the H-1B worker that will not adversely effect the working conditions of U.S. workers similarly employed in the area. Working conditions = hours, shifts, vacation periods, benefits.

(3) There is no strike or labor dispute at the place of employment. As of the date the LCA is filed, the Employer is not involved in a strike, lockout or other work stoppage occurring in the course of a labor dispute

(4) Notice of the LCA filing must be provided to the bargaining representative or affected workers and the H-1B worker ,and the end client, if applicable. Must be posted in 2 conspicuous locations at the place of employment regardless of whether the worksite is owned/operated by the Employer for 10 days.

Note: DOL’s Wage and Hour Division is responsible for enforcement of attestations.


Notice of Filing a LCA, must contain the following information:

(1) Number of H-1B workers the employer is seeking to employ in the relevant position;relevant position;

(2) Occupational classification in which the H-1B worker(s) will be employed;

(3) Wage(s) offered to H-1B worker(s) A range is okay so long as bottom (3) Wage(s) offered to H 1B worker(s). A range is okay so long as bottom of range is no lower than the required wage.

(4) Period of intended employment of H-1B worker(s);

(5) ALL Locations where H-1B worker(s) will be employed;( ) ( ) p y

(6) Following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour division of the United States y gDepartment of Labor.”


PUBLIC ACCESS FILE REQUIREMENTS• A copy of each certified labor condition application (Form ETA 9035 or Form ETA 9035E) including all

pages and cover sheet;

• Documentation which provides the wage rate to be paid to the non-immigrant and any benefits (ex. Employment offer/agreement);

• A clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation sought (ex. Statement/evidence of employer’s pay-system p p y p g ( / p y p y yor scale)

• Documentation which the employer used to establish the “prevailing wage” for the occupation sought (ex. Printout from http://www.flcdatacenter.com)

A f th ti f ti i l di d t f ti d t t t id tif i th t • A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;

• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;

• If employer is H-1B dependent and/or a willful violator and indicates on the LCA that only “exempt” • If employer is H-1B dependent and/or a willful violator, and indicates on the LCA that only exempt H-1B non-immigrants will be employed, a list of such “exempt” H-1B non-immigrants should be within the file;

• If employer is H-1B dependent and/or a willful violator, and indicates such on the LCA, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers, or copies of , pdocuments establishing this information should be within the file


Required USCIS Forms

F G 28 N ti f E t f A Att • Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative (2 pages)

• Form I-129, Petition for a Nonimmigrant Worker (7 pages, , g ( p g ,requires employer signature in 2 places)

• Form I-129 H1B Data Collection Supplement (~129DC), H 1B Data Collection and Filing Fee Exemption Supplement H-1B Data Collection and Filing Fee Exemption Supplement (3 pages, no signature required)

• Form I-129 Supplement H (~129H), H Classification Supplement to Form I-129 (2 pages, requires employer signature in 2 places)

• Form I-907 Request for Premium Processing Service • Form I-907, Request for Premium Processing Service (1 page, requires employer signature)


USCIS Filing Fees

• Form I-129 carries a filing fee of $325 00 • Form I-129 carries a filing fee of $325.00

• Anti-Fraud Fee of $500.00 applies to H1B CAP and transfer cases, does not apply to H1B extensions

• Form I-129DC (ACWIA) carries a filing fee of $750.00 (25 or fewer full time employees) or $1500.00 (26+ employees)

Note: A qualifying institution of higher education; a qualifying nonprofit organization q y g g ; q y g p gor entity; and a qualifying nonprofit research organization or governmental research organization are exempt from paying the filing fee. Amended petitions are exempt. Applicants filing their second or subsequent request for an extension with same employer are also exempt.

• Form I-907 carries a filing fee of $1225.00 (OPTIONAL – Premium Processing)

• Public Law Fee carries a filing fee of $2000 00 if the Petitioner • Public Law Fee carries a filing fee of $2000.00 if the Petitioner employs 50 or more individuals in the U.S. and more than 50% of those employees are in H1B or L1 nonimmigrant status.


H-1B Petition: Contents

1. Cover Letter listing contents of H1B package;2 Signed I 907 form if applicable; 2. Signed I-907 form, if applicable; 3. Signed G-28 form;4. Signed Employer Letter of Support; 5. Signed Forms I-129, I-129DC, I-129H;g6. Certified, signed Labor Condition Application;7. Signed Detailed Itinerary of Services, if applicable;8. End Client Letter/Vendor Documents, if applicable;9 Copies of H-1B worker’s education documents – degrees 9. Copies of H-1B worker s education documents – degrees,

transcripts, credential evaluation, awards, certifications, resume;

10.Copies of H-1B worker’s supporting documentation –passport, I-94, visa stamp, paystubs, W-2 forms, evidence of company benefits;

11.Copy of Employment Agreement with Employer. 12 USCIS Filing fees stapled to Cover Letter12. USCIS Filing fees, stapled to Cover Letter


Extension of Stay v. Change of Status An H1B worker in H1B status who has not violated his/her status is

eligible to extend his/her status if additional H1B time is remaining

A change of status is applicable when an intended H1B worker is in a status other than H1B that permits that individual to change status to H1B without departing the US to obtain the H1B visa

H1B and Consular Processing If the beneficiary is otherwise not able to extend or change status in

the US, the USCIS will notify the designated US Consulate as listed on the I-129 form of the approval of the Petition. t e 9 o o t e app o a o t e et t o The I-797 will NOT have an I-94 attached. The H1B candidate must

consular process to obtain H1B visa stamping to enter the US and begin authorized employment

Regardless of the type of H1B Petition, always complete Part 4 of Form I-129129

H1B Visa Validity & Passports If the passport containing a valid visa expires, the expiration of the

passport has NO effect on the validity of the visa. The passport should be valid for at least 6 months from the expiration

date of the initial period of admission


Roving Employees

End Clients & Maintaining EmployerEnd Clients & Maintaining Employer--Employee RelationshipEmployee Relationship

Obtain an end client letter (best evidence), if not possible – obtain vendor letter; Obtain an end client letter (best evidence), if not possible obtain vendor letter; vendor agreement; end client agreement; end client work badge displaying beneficiary’s name/picture; beneficiary’s timesheets as submitted to Petitioner; beneficiary's weekly status reports as submitted to Petitioner; beneficiary’s performance evaluations/reviews as conducted by Petitioner; Petitioner’s organizational chart organizational chart …

End Client letters should specifically include the beneficiary’s name, specialty occupation duties undertaken during placement, and state that end client is not the Employer of H1B beneficiary

H1B Amended PetitionsH1B Amended Petitions

USCIS Service Centers differ:

VSC says as long as new LCA is prepared and submitted covering new location and posting requirements are completed – OK

CSC says a material change requires an Amended H1B Petition; a material change is a change in the terms and conditions of employment; a move outside of the area as i di t d th i ti tifi d LCAindicated on the existing certified LCA

Amended H1B Petition carries a USCIS Filing fee of $325.00 ONLY


Duplicate Copies of Petitions/RFE Responses

Send 2 complete copies of the Petition (forms + supporting docs) to USCIS

Mark 1 copy with the following – KCC Copy

Once the petition is approved, USCIS will forward the KCC copy to the KCC. KCC will scan the petition and enter it into PIMS database

H1B Extensions Beyond 6th Year

Section 106(a) of AC21: 1 year extensions – if a PERM application or an I-140 petition was filed at least 365 days before the H1B worker reaches p yhis/her 6th year in H1B status

Section 104(c) of AC21: 3 year extensions – if the beneficiary of an approved I-140 Immigrant Petition for Alien Worker but due to per country limitations, a visa number is unavailabley ,

H1B Transfers Under AC21 H1B Change of Employer Petitions

h l b l h h The Employee can begin employment with the new H1B Petitioner upon the filing of the H1B petition with the USCIS*


Payment of Attorney’s Fees/USCIS Filing Fees

The regulations state that the attorney fees and other costs connected to the performance of H-1B program functions, which are required to be

f d b h l i d fili f LCA d H 1B performed by the employer, e.g., preparation and filing of LCA and H-1B petition, are to be considered “business expenses” of the employer, and are not to be deducted from the H-1B employee’s pay. This includes filing the I-129; I-129 DC and any legal fees connected

ith th H 1B Cwith the H-1B Case.

All other expenses, such as Premium Processing, associated with the H-1B program may be borne by the worker. Obtaining H-4 visas for dependent family members are not the employer’s business expense. dependent family members are not the employer s business expense. The DOL acknowledges that it has "no right or any interest in inquiring into those.”

Withdrawing H1B Cases Withdrawing H1B Cases Once the H1B Employee is no longer an employee of the Petitioner, a

Request to Withdrawal Letter needs to be filed with the USCIS immediately

If the LCA is still valid upon the employee leaving the company, it should also be withdrawn.

Part III – H1B CAP SEASON

H-1B Annual CAP per Fiscal Year (FY2015)

• The current annual cap on the H-1B category is 65,000. Please note that up to 6,800 The current annual cap on the H 1B category is 65,000. Please note that up to 6,800 visas are set aside for the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

• Under the advanced degree exemption the first 20,000 petitions filed for a b fi i h h bt i d U S t ' d hi h t f th CAPbeneficiary who has obtained a U.S. master's degree or higher are exempt from the CAP.

• Employers may begin to submit H-1B CAP cases as of April 1, 2014 for employment beginning October 1, 2014, the start of the Fiscal Year. Fiscal year runs from October 1st through September 30th. g p

• Petitions received by the USCIS during the first week of April are subjected to a computerized random lottery process.

Fiscal Year Date CAP ReachedFiscal Year Date CAP Reached

FY2014 April 5, 2013

FY2013 June 11, 2012

FY2012 November 23, 2011,

FY2011 January 26, 2011

FY2010 December 2009


LCA Filings

Cannot file more than 6 months in advance of the start date, earliest start date is October 1, 2014

When filing the LCA, you will not be able to submit an LCA before A il 1 2014 ith t ti d t f 10/01/2014 di l April 1, 2014 with a starting date of 10/01/2014, accordingly…you do the following:

Start date – 08/19/2014

End date – 08/18/2017 End date – 08/18/2017

Form I-129 would be marked – 10/01/2014 through 08/18/2017


H1B CAP GAP

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the "cap-gap." The regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status.

H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request achange of status to H-1B on October 1 qualify for a cap-gap extension.

Timely filed = H-1B petition (indicating COS rather than CP) was filed on or after April 1while the student's authorized F-1 duration of status (D/S) admission was still in effect.

l f l h b d h ll b d Once a timely filing has been made, the automatic cap-gap extension will begin andcontinue until the H-1B petition adjudication process has been completed. If the student’sH-1B petition is selected/approved, the student’s extension will continue throughSeptember 30. If denied, withdrawn, revoked, or is not selected, the student will have thestandard 60-day grace period from the date of the rejection notice or their program endstandard 60 day grace period from the date of the rejection notice or their program enddate, whichever is later, to prepare for and depart the US.

Travel is not advisable during the CAP GAP period

Please note: F-1 students who have entered the 60-day grace period are not employment-authorized. If anH-1B cap-subject petition is filed on behalf of a student who has entered the 60-day grace period the studentH 1B cap subject petition is filed on behalf of a student who has entered the 60 day grace period, the studentwill receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is noemployment authorization to be extended).


Petitions EXEMPT from the H1B CAP

Certain Employers and Petitions are not subject to the CAP

If not subject to the CAP, then the H1B can be filed and the employment may begin at any time during the year.

Any Alien counted against the Cap within the Past 6 Years

Institutions of Higher Education

Nonprofit Entities affiliated with institutions of higher educationeducation

Nonprofit or governmental research organizations

A Foreign National changing Employers (H1B Transfer), as long as s/he was not working at a CAP EXEMPT institution previously

Extensions of H1B Status

H1B CAP CASES – DIRECT FILING ADDRESSESThe beneficiary will work

For Regular ProcessingH-1B Cap Cases:

For Premium ProcessingRegular Mailing Address:

will work temporarily in:

AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI MN MO

USCISCalifornia Service CenterATTN: H-1B CapP.O. Box 10129Laguna Niguel, CA 92607-1012

Premium Processing ServiceUSCISCalifornia Service CenterP.O. Box 10825Laguna Niguel, CA 92607

MI, MN, MO, MP, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, or WY

U.S. Masters Cap Cases:

USCISCalifornia Service CenterATTN: H-1B U.S. Masters Cap

Form I-907/I-129 Courier Mail Address:

Premium Processing ServiceCalifornia Service Center24000 Avila Road

P.O. Box 10129Laguna Niguel, CA 92607-1012

2nd Floor, Room 2312Laguna Niguel, CA 92677

The beneficiary ill k

H-1B Cap Cases: H-1B Cap Cases:will work temporarily in:

AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA,

USCISVermont Service CenterATTN: H-1B Cap4 Lemnah DriveSt. Albans. VT 05479-0001

Premium Processing ServiceUSCISVermont Service CenterATTN: H-1B Cap30 Houghton Street

lbMS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, or WV

H-1B U.S. Masters Cap Cases:

USCISVermont Service Center

St. Albans. VT 05478-2399

H-1B U.S. Master Cap Cases:

Premium Processing ServiceUSCIS

ATTN: H-1B U.S. Masters Cap4 Lemnah DriveSt. Albans. VT 05479-0001

Vermont Service CenterATTN: U.S. Masters Cap30 Houghton StreetSt. Albans. VT 05478-2399