The Coveted H1B: Clearing
All the Hurdles
Presented by:
David A.M. Ware, attorney at law
www.david-ware.com. dware@david-ware.com
800 537 0179
National Practice with Offices Across the Gulf South
Where Do I Start?
Your career in the US after
graduation should ALWAYS start with
Optional Practical Training (OPT).
You must apply before you complete
all requirements for degree. If you
finish by April 1, application must be
before that date.
You get one year for each higher
degree you complete.
Cross The Bridge
OPT ideally acts as a bridge between your
studies and the workplace.
It allows you to “get your foot in the door”
with a US employer without any
paperwork on their part: vitally important.
It allows you to try more than one job if
you wish.
While in some cases it may be possible to
proceed directly to H1B or even
permanent residence without OPT, this is
usually unadvisable.
What is An H1B Anyway?
It is the principal immigration status
available for persons temporarily working
in professional level jobs (“specialty
occupations”) in the US.
It generally requires that the employee
have at least a four year degree or
equivalent AND that the position require a
minimum of a bachelor’s degree.
What Are the Other Parameters of
the H1B?
Employment is limited to the employer(s) who
petition(s) for the student. May hold more than
one H1B at same time. H1B may be part time.
Employment is generally limited to six years with
ALL employers (unless employment-based
permanent residence begun by end of 5th year).
Employment must be directly related to degree
program—either current program or any prior
degree program.
H1B’s are limited by strict fiscal year quotas.
The H1B beneficiary may have “dual intent”.
What About Starting My Own
Business?
To be an employer, an entity must
have at least one employee other
than the H1B.
Usually not a wise idea to start own
business, unless you have loads of
money (at least 500K to 1 million) or
qualify for investor visa (treaty).
Genrally, business owners cannot
sponsor themselves for permanent
residence.
What Are the Employer’s
Obligations?
Must agree to employ beneficiary as set out in
the petition (no fraud!).
Must need the services of the student (no uncles
with corner stores!).
Must agree to pay higher of actual or prevailing
wage.
– Actual wage: wage paid to other similarly employed and
similarly qualified workers at same worksite.
– Prevailing wage: weighted mean or median wages for
similar positions in geographic area of employment.
– Basically, this means that a competitive wage must be
offered.
Employer’s Obligations?
Must be no strike or lockout.
Must notify other workers of terms of job
(10 day posting or letter to union).
Must agree to pay certain fees to USCIS:
– ACWIA fee: $1500; $750 if 25 or few FT
employees.
– Exemptions: K-12, higher ed, affiliated
entities, teaching hospitals, non profit research
organizations and government research
organizations.
– Anti fraud fee: $500. No one exempt.
Employer’s Obligations?
Must agree to employ H1B only in
geographic location(s) set out in
labor condition application.
Must agree to pay return
transportation to country of
nationality if H1B terminated before
end of visa petition approval (but not
enforceable).
What’s Filed and When?
First is Labor Condition Application. Filed
electronically with Department of Labor.
Next is H1B Petition, together with LCA, evidence
of qualifications, and description of job, filed at
either VT or CA Service Center of USCIS,
depending on place of employment, or CA if
quota exempt.
If employee maintaining lawful status in US,
status is changed to H1B, along with family
members.
If outside US, or traveling following change of
status, must obtain H1B visa at US consulate,
unless going for 30 days or less to
Canada/Mexico.
The Magic Approval
Processing of the H generally takes three
to four months. Fifteen day premium
processing is available for $1K; PP also
guarantees easier communication with
USCIS via phone/email.
Once approved, the H employee may
“port” to a new employer once that
employer files a new petition. Approval of
new petition not necessary. BEWARE:
porting if you have not been counted
against the quota.
Any Pitfalls?
Horrible quota problems!
– Currently H1B’s are limited to about
78,789.
~58,789 for those with no US earned
Master’s.
--20,000 for those with US earned
Master’s or higher.
~6,800 reserved for H1B1 for citizens of
Chile, Singapore (unused numbers “fall
back” during first 45 days of new FY—
589 last year).
Quota Pitfalls
Exempt from the quota are persons already
counted against it within past six years, as well
as persons who work in higher ed and affiliated
entities, non profit research and government
research organizations, and physicians granted a
waiver of the two year home residence
requirement for J’s. Note that most govt. entities
and non profits are NOT exempt from quotas.
Persons engaged in concurrent quota
exempt/quota subject jobs also not subject.
If you were an H employee for an quota-exempt
employer you were not counted against the
quota, unless you began H status prior to
October 20, 2000.
Quota Statistics
FY 2008 regular quota exhausted April 3.
All cases received April 2 and 3 were
placed in a lottery. About 40% selected.
US Master’s quota exhausted April 30.
This means most people are locked out of
H until October 1.
Earliest application now for regular quota:
April 1, 2008, for work to start October 1.
Applicants should get all docs to attorney
NO LATER than March 1.
Congressional action in election year
doubtful. Hopefully relief will come in
Spring 2009.
Quota Pitfalls?
Major problem arises when OPT or AT will
end prior to the beginning of H1B petition
approval, plus the student’s (60 day) or
exchange visitor’s (30 day) grace period.
• In years prior, immigration generally
published “gap rule” allowing J’s and F’s to
maintain status during this period, remain
in the US, but not work.
• For several years: NO GAP RULE.
•
Quota Example
Carlos’ F 1 OPT following his MBA
began May 15, 2007 and ends May
14, 2008. He finds a suitable job and
the company petitions for his H1B on
April 1, 2008. Since the FY 08
(10/1/07 to 9/30/08) for US Master’s
recipients ran out on 4/30/07, his
employer asks for a visa number
from the new FY 09 quota for work
beginning 10/1/08.
Quota Quandaries
But Carlos thus will have a gap in status from
7/14/08 (end of 60 day grace period) until
10/1/08.
What’s he to do?
–
–
–
–
–
–
–
–
–
Apply for H while still in school if BS degree relevant.
CAN’T WORK after 5/14/08!
Postpone OPT start date til 7/14? (still a small gap)
Apply for change of status to B 2? (logistics issues)
Apply for change of status to dependant (if married or
under 21)
Apply for admission to a new program and new I 20 for
Fall 2008? Kaplan? (money and intent issues)
Leave the US? (all sorts of issues)
Work for company abroad?
Go back in time and alter his graduation date? (physics
issues—but see next slide!)
Your Grad Date and H1B Cycle
Current H1B quota problems make May
graduation very difficult, August less so
and December ideal. Why?
May 15, 2008: OPT until following May 14;
no H1B until October 1, 2008. GAP!
August 15: OPT until following August 14;
no H1B until October 1, 2008. POSSIBLE
GAP!
December 15: OPT until following
December 14; student applies for H1B
4/1/08; gets it 10/1/08. NO GAP!
What About Finishing Early?
If you can finish all reqts for a US
Master’s degree by April 1, you can
apply under the Master’s quota.
You cannot apply under the Master’s
quota if finishing degree after April 1.
Some schools have implemented
policies allowing students to finish
early.
If you finish early, must apply for OPT
before April 1, but can push out OPT
up to 60 days—to June 1.
Careful, Careful
Many beginning positions in business do not
require a degree: eg, sales, management trainee
slots.
Many entry level jobs pay partly or solely on
commission. Commission or sales bonuses
generally cannot be included in the wage
computation.
Beware of “make work” or make believe jobs
from friends or relatives. Pay stubs, W 2’s will be
required when you go abroad for visa issuance,
apply for future immigration benefits!
Also beware of fly-by-night consulting companies
which may “bench” you until they place you in a
job.
Startups, financially troubled businesses, and
those that take a tax loss each year will NOT be
able to sponsor for permanent residence!
Does This Job Really Require a
Degree?
Complexity of job:Does the job require the
application of theoretical and practical knowledge
typically acquired in a relevant four year degree
program?
Employer reqts: Has the employer consistently
required a minimum of a Bachelor’s in particular
major(s) for position? Or is the requirement
simply an employer preference? Or is the
employer simply making up the requirement to
get you an H1B?
Other, similar: What are industry standards for
this type of job? Check ads on internet, DOL’s
Occupational Outlook Handbook.
$$$$: Is the salary commensurate with a
professional-level position?
Can I Bank on This H?
Example 1: Alexandre is offered a
management trainee position at
Hometown Bank. He is told by the HR
Director that for 18 months, he will cycle
through all departments of the bank, and
at the successful completion of this period,
will become a Mortgage Loan Analyst, at a
salary of 60K. During the training period,
he will only be paid 25K. Ms. HR says that
all prior trainees have possessed an MBA.
Can Alexandre get an H1B to begin his
training?
Will Immigration Buy this One?
Srilatha is offered a “Sales Associate”
position at Needless Markup department
store. Her salary will be 20K. She is told
that sales associates are often promoted
from within, and that with her academic
background (MBA, BS in Fashion
Merchandising), she could soon rise to
Buyer or even Sales Manager.
Can Srilatha get an H1B with this offer?
Will Immigration Get Technical?
Yoshi has an MBA and BSME. He is offered a job
as “Technical Sales Associate” by a company
which manufactures elevators. He is to sell to
international customers, as well as to assist them
with after sale technical questions regarding the
company’s products. His salary will be 40K. He is
told that eventually he could rise to Regional
Sales Manager or Technical Sales Manager.
Does this offer hold H1B possibilities for Yoshi?
Friends in High Places
Alberto has a wealthy friend who wants to open a Cesare
Paciotti shoe store franchise on Madison Avenue in New
York.
He has known Alberto for several years and is the only one
he trusts to run the store. With shoes retailing from $400 to
over $1000, the friend wants the highest possible level of
service for customers.
Alberto will have a build out budget of $1 million; 20 full
and part time employees, inventory worth $1.5 million, and
an annual turnover of $5 million.
Alberto will manage personnel, devise marketing
campaigns, manage inventory, prepare financial
projections, and oversee the entire operation. His salary
will start at 80K.
H1B for Alberto?
Do Your Homework
Before the interview: Research the
company. If officers or other
employees are listed in literature or
on website, see if there are obvious
immigrants among high ranking
personnel.
Try to identify, beforehand if
possible, who will be conducting your
interview and his/her function in
company.
Pay Attention
When meeting the interviewer, ask for his
or her card, if available, and look at it
carefully. Note the person’s title, and what
that implies about his or her function.
You will find that functional managers and
others within your area of expertise may
have a very different point of view than
persons with a recruiting or human
resources function.
Who’s Across the Table?
Persons who actually manage or
carry out work in your area are
usually most concerned with the
applicant’s skills, drive, and ability to
really get the job done.
Recruiters and HR people often are
more concerned with process, rules,
and “filling holes” in the company.
Penetrating “Our Policy”
If the interviewer is recruiter/HR, try to
find out who you’d actually be working for
or who runs the office/division where the
opening exists.
In this way, if you are rebuffed, you may
be able to contact the manager directly, or
use networking to do so, to try to
overcome the interviewer’s objections to
hiring you. This is particularly the case if
told “We don’t sponsor for work visas.”
Don’t Take “No” for an Answer
If confronted with “we don’t sponsor”,
after you identify the function of the
individual, then try to find out WHY.
Sometimes the individual doesn’t know,
the policy was established by someone
“who’s no longer with the company”, etc.
If you decide to bypass the interviewer,
and try to “go inside” the company, it’s
very important to know the “why” of the
“no sponsor” rule.
Employers’ Many Misconceptions
Employer believes that it must
recruit, prove American workers not
available, or prove that student is
exceptional, special, or unique to
sponsor.
FALSE: No recruitment required.
Special qualities not relevant. Two
ten day postings are for notification
only.
Dumb and Dumber
Employer thinks the process “will get them in
trouble with immigration” (not unless they have
otherwise shady practices or lie in the
paperwork).
Employer doesn’t want to reveal financial
information to USCIS: in the H1B context
financial info almost never needed.
Employer thinks they have to pay legal fees (not
unless this would push employee below required
wage).
We’re So Vain
Employer thinks “it’s too much trouble,
paperwork” (a few signatures, a ten day
posting, no advertising; attorney can
simplify process).
Employer worries about posting the
employee’s wage (post a range!).
Employer feels they receive enough
resumes from US workers; no need to
apply for a foreigner (didn’t they ever
hear of the immigrant work ethic?; try to
identify immigrants within the company).
Too Many Lawyers
Employer worries that sponsorship may
constitute contract of employment (no,
but if they’re worried, do a memo of
understanding both sign).
Employer worries that employee is later
going to ask for PR and leave the
company –they’ve been burned before
(Sign a “one way” contract; employee has
to repay legal fees if leaves before a
certain date; but employer retains right to
“employ at will”).
Fine, If You’re Free
Employer doesn’t want to pay
ACWIA and fraud fees and wants
employee to pay them.
– There are penalties for employee
payment of ACWIA fee.
– No apparent penalty for employee
paying fraud fee.
These fees are less than what the
employer would pay a recruiter.
Let’s Make a Deal
Employer doesn’t want to pay required
wage and wants to have “side deal” with
employee to pay less or pay part in
commissions/bonuses.
– There are severe penalties, including back pay,
fines up to $5000 per incident, and prohibition
from petitioning for any employment based
nonimmigrant/immigrant for up to two years
for this practice.
– Pay stubs, W 2’s are often requested at visa
interviews, and in connection with applications
for immigration benefits.
What if Size H Doesn’t Fit?
TN (Treaty NAFTA) for citizens of
Canada and Mexico only.
Occupations listed at 8 Code of
Federal Regulations Sec. 214.6(c)
generally require a minimum of
Bachelor’s degree. But MBA’s
beware: “Management Consultant” is
carefully scrutinized; generally must
be independent contractor. TN given
in one year increments; requires
residence abroad (no dual intent).
Other Ways to Heaven?
H1B1 visa for Chile, Singapore: very
similar to normal H1B, except granted in
one year increments, requires residence
abroad (no dual intent).
E 3 for Australian citizens; again very
similar to H1B; minimum Bachelor’s, dual
intent ok; spouses may work.
H-3 trainee. 2 yrs max; training must be
for job abroad.
J-1 trainee. 18 mo. max; looser than H 3,
but many J sponsors will not sponsor if
you are in US.
Money, God or Business?
E 1/E 2: if your country of nationality has an
trader/investor treaty with US, investment of as
little as 50K in a job-creating business can mean
a visa for life, work permit for spouse.
L 1A/L 1B: if you were employed by a company
abroad for at least a year before coming to the
US, and they wish to employ you in US; work
permit for spouse.
R-1: possible if job offer has a significant
religious component.
B-1 business visitor: only possible if employed
outside US, no remuneration in US except
expenses, and product/service is made/rendered
outside US. VERY LIMITED UTILITY.
Get A Lawyer?
There are many other nonimmigrant
visa classifications, some of which
may be appropriate to recent
graduates in rare situations. These
should be explored with an
experienced immigration attorney.
If your employer does not have an
immigration attorney, choose with
care! Do your research well.
If You Wish to Contact Me
Please call, or send a brief, to the point
email.
Long, multipart emails will result in a
request that you set an appointment, which
may always be by phone, or in person.
Your “one simple question” may not be
simple, eg, “How can I get a green card?”
It is unethical for me to respond to inquiries
where you and/or your employer already
have an immigration attorney unless you
set an appointment with me.
The Coveted H1B: Clearing
All The Hurdles
Presented by:
David A.M. Ware, attorney at law
www.david-ware.com. dware@david-ware.com
800 537 0179
National Practice with Offices Across the Gulf South