The Coveted H1B: Clearing All the Hurdles

1. 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

2. 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.

3. 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.

4. 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.

5. 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”.

6. 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). • Generally, business owners cannot sponsor themselves for permanent residence.

7. 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.

8. 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.

9. 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).

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

15. 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.

16. 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.

17. 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. Can’t work after 5/14/08. • What’s he to do now? • Apply for change of status to B 2 or other status? (logistics issues) • Apply for change of status to dependant (married/< 21) • Apply for admission to new program for Fall 2008? Kaplan? (money and intent issues) • Leave the US? (all sorts of issues) • Work for company abroad? • File for PR thru company? (quota issues) • What could he have done differently? • Apply for H while still in school if BS degree relevant. • Postpone OPT start date til 7/14? (still a small gap). • Go back in time and alter his graduation date? (physics issues—but see next slide!)

18. 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!

19. 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.

20. 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!

21. 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?

22. 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?

23. 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?

24. 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?

25. Friends in High Places • Alberto has a wealthy friend who wants to open a CesarePaciotti 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?

26. 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.

27. 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.

28. 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.

29. 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.”

30. 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.

31. 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.

32. 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).

33. 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).

34. 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”).

35. 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.

36. 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.

37. 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).

38. 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.

39. 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.

40. 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.

41. 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.

42. 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