Employment Options: H-1B and Permanent
Residence
Eastern Michigan University
Fall 2013
Tracy Schauff
Senior Attorney
_______________________________________
Fragomen, Del Rey, Bernsen & Loewy, PLLC
50 West Big Beaver Road, Suite 200
Troy, MI 48084
Tel: 248-649-5404
Fax: 248-649-5121
tschauff@fragomen.com
www.fragomen.com
1
Today’s Topics
• Non-immigrant
basics
• Costs
• Basics
• The
of Employment-Based Permanent Residence
PERM process
• Alternatives
• The
Rest of the Process
• Immigrant
• Your
2
to PERM
visa backlogs
rights / responsibilities
What is an H-1B visa?
visas are for temporary (nonimmigrant)
workers engaged in a specialty occupation that
requires (1) theoretical and practical application of
highly specialized knowledge and (2) attainment
of a bachelor's or higher degree, or equivalent
experience, in the specific specialty for entry into
the occupation.
• H-1B
3
What is an H-1B continued….
• H-1B
visas are valid for 3 years
• Can be extended for an additional 3 year period for a
total of 6 years
• Previous stays in L-1 or H-1 status (but not L-2 or H-4
dependent status) count towards maximum period of
stay.
• H-1B visas can be extended past the 6-year maximum
in certain situations.
4
What is the H-1B “Cap?”
•
H-1B petitions are limited on a fiscal year
basis (Oct 1 – Sept 30)
•
65,000 new petitions are permitted each
year though 6,800 of that amount are reserved
for nationals of Singapore and Chile (H-1B1
visa)
•
An additional 20,000 petitions are permitted
for holders of U.S. advanced degrees.
5
H-1B cap cont’d.
• Employers
can begin filing H-1Bs on April 1 for
employees that they want to hire on October 1 or
after.
• Once the government has received enough
petitions to reach the 65,000 annual limit (or
20,000 advanced degree limit), it has reached the
“cap” and employers cannot file any new H-1B
petitions until the following April 1 for the next
fiscal year.
• If USCIS receives more than enough petitions to
meet the cap, it uses a computerized lottery to
select the petitions that will receive a cap number.
6
H-1B cap cont'd.
• The
cap applies only to new H-1B petitions. H-1B
extensions, amended petitions or concurrent H-1B
employment petitions are NOT counted towards the
cap.
• The cap does not apply to H petitions filed for
higher educational institutions, non-profit research
institutions, government and research
organizations.
- But persons who have a cap-exempt non-profit H may
become cap subject if they change to a for-profit H-1B
employer.
7
H-1B requirements
• Position
must require a minimum of a Bachelor’s
degree (or equivalent)
• Foreign
National’s degree must be related to the
field/position
• Employer
workers
• Employer
must attest that not replacing laid off
required to withdraw H if employment ends
prior to expiration date (may leave you out of status)
8
Your rights
• Employer
must pay costs associated with the H-1B
application
• Employer
must pay 100% of the prevailing wage or the
actual wage, whichever is higher
• Employer
must offer to pay the reasonable costs of
your return transportation home if you are terminated
prior to the expiration of your H-1B
• Employer
must provide you a copy of the certified LCA
• Sponorship
• Employers
to not hire
9
does not create an employment contract
are not required to sponsor – lawful reason
Your rights – continued…
• Cannot
lay-off, bench, RIF
• Unpaid
leave only if voluntary or unable to work
• Employers
cannot discriminate except in certain
circumstances
- i.e. Federal contracts requiring U.S. Citizens only
10
H-1B Costs
• Government
filing fees
- Eg. Typically range from $825 to $4325 not including
dependents
• Legal
fees
- Vary based on type of approach
• Employer’s
11
responsibility
Annual Quota for Green Cards based on Job
and/or Skills
140,000 for 5 employment based preferences
- 40,000 for EB1 priority workers
- 40,000 for EB2 advanced degree
- 40,000 for EB3 professional/skilled workers/ other workers
- 10,000 for EB4 special immigration
- 10,000 for EB5 investors
- Spill down/Spill up/+unused FB from family-based
immigration
12
Employment-Based PR
• The
3 most relevant EB categories
- EB1 Priority workers
• EB11 Aliens of Extraordinary Ability
• EB12 Outstanding Professors & Researchers with tenure
track/tenured or permanent positions
• No labor certification required
- EB2 Positions requiring an advanced degree or exceptional ability
• Labor certification required with some exceptions
• Foreign national must possess and position must require either an advanced
degree or exceptional ability
• National Interest Waiver (NIW)
- EB3 Positions requiring at least a bachelor’s degree
• Labor certification required with some exceptions
13
Employment-based PR Process
• Usually
3 steps:
- Labor certification (ETA-9089)
- Immigrant petition (I-140)
- Application for Adjustment of Status or immigrant visa (I-
485 or DS-230)
•2
steps in some cases:
- Immigrant petition (I-140)
- Application for AOS or immigrant visa (I-485 or DS-230)
14
What’s Labor Certification About?
• Test
of job market to make sure U.S. workers are not
displaced by a foreign national seeking permanent
residence
• Search
for able, willing, qualified and available U.S.
workers.
• Cannot
file labor certification application if a minimally
qualified U.S. worker is available.
- For teaching positions, need only show that the foreign
national was more qualified than US worker applicants as
determined by the search committee
15
What’s Labor Certification About?
• Is
it wrong to recruit for a position which is already filled
by the foreign national?
- DOL Inspector General audit found that 90%+ of labor
certifications were filed on behalf of employees already in the
position
- DOL has no problem with it
- Regulatory posting for teaching positions has always been
after the foreign national hire
- Double edged sword for the foreign national as U.S. worker
could be identified to replace FN
16
PERM
(Program Electronic Review Management)
• Attestation
and audit system
- Online electronic applications for labor certification
- Processing times range from weeks to 8 months for standard
cases
• Audited cases averaging 2 years from audit reply
- DOL auditing about 50% of cases with increased number of
audits expected
- Advertising and recruitment take place before labor
certification application is filed
- If minimally qualified US worker not available, then can file
application
17
Alternatives to Labor Certification
• EB11
Extraordinary Ability
• EB12
Outstanding Professor/Researcher
• EB2
+ National Interest Waiver or DOL designated shortage
occupation
• Immigrant
• USCIS
18
petition (I-140) filed with USCIS to start PR process
has raised standards for these categories
Aliens of Extraordinary Ability
• International
Reputation as extraordinary in the field
- “One of a handful of the best”
• No
labor certification required
• Substantial prospective benefit to the U.S.
• Exclusive category, but not unreachable
• Interpretive evidence
- Opinions from experts often not give sufficient weight by CIS; CIS
officers prefer to make their own evaluation
• May
be “self petitioned”
• Job need not require extraordinary ability
19
Outstanding Researchers and Professors
• International
reputation as outstanding in an academic
field
• 3 years of teaching and/or research experience in the
academic field
• Offer of employment for tenured or tenure-track
position or “permanent” research position
- Research position must have history of funding, be deemed
permanent within employer’s rules, and not be finite in nature
(eg., postdoc)
20
Outstanding Researchers and Professors con’t..
• May
• Job
not be self petitioned
offer required, but labor certification is not required
• May
count teaching and/or research experience while
working towards advanced degree, if:
- degree acquired;
- research has been recognized as outstanding; and
- full responsibility for classes taught
21
National Interest Waivers
• Ordinarily,
job offer and labor certification required for
EB2 advanced degree or exceptional ability - waived if
the work is in the “national interest”
• Eligible
if:
- holds advanced degree or is of exceptional ability; AND
- work is deemed to be in the national interest
• To
establish national interest, must show:
- employment will be in an area of substantial intrinsic merit;
- benefit of alien’s skills will be substantial and national in
scope
- national interest would be adversely affected if labor certification
required
22
National Interest Waivers con’t…
• Not
sufficient to show a shortage of qualified workers in
a particular area
- Labor certification process is for this purpose
• Must
also show an existing record of alien’s
achievements/ skills
- Cases cannot be approved only on potential of the work
• Employee
• Better
may self petition
chance of success with support from interested
government agency
23
Last Stage of PR process
• Show
there isn’t a reason the foreign national should
NOT be a permanent resident such as:
- Criminal history, terrorist, Communist, anarchist, bigamist or
polygamist, medical reasons & others
• Apply
at USCIS office or U.S. consul in Home Country
• Can file I-140 & I-485 concurrently if visa numbers are
available
• Can work and travel with H-1B throughout PR process
24
Permanent Residency Costs
• Government
filing fees
- I-140 $580
- Adjustment of Status $1070
• Medical
examination, tests and vaccinations
- Vary depending on physician and vaccinations required
• Legal
fees
- Vary based on type of approach
• Advertising
costs
- In some cases where labor certification is required
• Labor
Certification (DOL)
- Federal law prohibits employee from paying any labor
certification costs including advertisements
25
Impact of Immigrant Visa Retrogression
• Complex
formula
• Immigrant visas limited per preference category and
country of birth
• Annual allocations plus carryover
• Backlog created by USCIS catching up on approving
backlogged applications for permanent residence after
fiscal years in which applications were filed have passed
- Unused visas cannot be used in next fiscal year
26
What is a Priority Date?
• “Priority
Date” (PD) - place in line for an Immigrant Visa
(preference category and the foreign national’s COB)
• Priority
Date: filing date of either:
- Labor Certification OR
- I-140 Immigrant Visa Petition
…whichever is earlier
• Can
use spouse’s country of birth, children can use
parent’s country of birth
27
Visa Bulletin
• Visa
line “cut off” is determined by the DOS published monthly
Visa Bulletin
• Bulletin
is released every month
• Backlog
for bachelor level positions (EB3) regardless of country of
birth
• Backlogs
for advanced degree holders (EB2) for those born in
China and India
• Backlogs
could exist for several years
• Increase
in visa numbers by Congress is needed
28
29
EmploymentBased
All
Chargeability
Areas Except
Those Listed
CHINAmainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
01JAN12
15JUL07
01SEP04
01JAN12
01JAN12
3rd
22OCT06
08FEB06
15OCT02
22OCT06
01AUG06
Other Workers
22OCT06
22JUN03
15OCT02
22OCT06
01AUG06
4th
C
C
C
C
C
Certain Religious
Workers
U
U
U
U
U
5th
Targeted
C
Employment Areas/
Regional Centers
C
C
C
C
5th Pilot Programs
U
U
U
U
U
Impact of Visa Retrogression:
No I-485 Filing
• Waits
could be 3-10 years to file last stage and then wait another
6-12 months to complete
• Longer period in LC position
• Need to continue to extend H-1B/H-4 status
30
Common Issues Created by Visa Backlogs
• Does
the position require a bachelors or advanced degree?
- Decides whether employee may have to wait 1-2 years or 5-6 years to
complete process
• Important
-
31
questions:
position require an advanced degree or a bachelors and 5 years
of progressively responsible experience?
position require exceptional ability?
foreign national possess an advanced degree or bachelors + 5?
foreign national possess exceptional ability?
Can be very important to availability of visa numbers under the
annual PR visa quota
Common Issues
• Does
the position and/or the employee qualify under:
- Extraordinary ability?
- Outstanding Professor or Researcher?
• 2nd
preference category backlogs for those born in India
and China prompt many to want to try EB1 categories
32
Questions / Discussion