Fragomen, Del Rey, Bernsen & Loewy, LLP

1. Immigration Basics:Overview of Procedures and Obligations for EmployersPart 1: Nonimmigrant Visas Fragomen, Del Rey, Bernsen & Loewy, LLP

2. Aaron Blumberg ablumberg@fragomen.com Associate Enrique Gonzalez egonzalez@fragomen.com Managing Partner Fragomen, Del Rey, Bernsen & Loewy, LLP 1 Alhambra Plaza, Suite 600, Coral Gables, FL (305) 774-5800

3. Immigration Overview

4. Three Groups of People in the US • Citizens • Immigrants • Nonimmigrants

5. Nonimmigrants • Coming to the U.S. temporarily • Retain residence abroad • Dual intent - only for H’s and L’s • “Alphabet Soup” - A-V • Important Visas to Know: H-1B, TN, E-3, F-1, J-1, O-1 • Immigrants vs. nonimmigrants

6. Immigrants • “Green card holders” = “permanent residents” = “immigrants” • Coming to U.S. permanently • Numerically limited • Visa bulletin • Priority date • Can become U.S. citizens after 3 - 5 years

7. Understanding the Documents

8. Visa Stamp

9. I-94 (D/S)

10. I-94 (Expiration Date)

11. I-797 Approval Notice & I-94 Card

12. I-20 (F)

13. DS-2019 (J)

14. Form I-9

15. H-1B Work Visa

16. H-1B Category: USCIS Provisions • H-1B 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. • “Specialty Occupation” -- Entry level requirement = minimum Bachelor Degree or equivalent • Cap: 65,000 + 20,000 additional visas allocated to holders of advanced degrees from U.S. universities • Cap Subject vs. Cap Exempt • All Universities are cap exempt

17. H-1B (continued) • H-1B can be full-time or part-time • H-1B workers are “tied” to their employer • Cannot accept payment from any other source • Can hold dual/concurrent H-1Bs with multiple employers • What are the government fees? ($325, $500, $750/$1500) • Universities exempt from Training Fee ($750/$1500)

18. H-1B (continued) • H-1B visas are valid for 3 years and can be extended for an additional 3 year period for a total of 6 years in H-1 status • Previous stays in L-1 or H-1 status (but not L-2 or H-4 dependent status) count towards maximum period of stay • Time spent outside of the US does not count towards 6 year limit • H-1B visas can be extended past the 6-year maximum in certain situations: • 1 year Extension: If PERM has been filed at least 365 days prior to the date the H‐1B expires • 3 year Extension: If an I‐140 has been approved, and the individual cannot adjust status because priority date is not current (usually someone from China or India)

19. Wage Requirements • Actual Wage • paid by the employer to US workers • in the same position • at the same work site • with similar experience and qualifications • Prevailing Wage • Average salary paid to all similarly situated employees (i.e. similar job duties, experience, education, etc.) in each geographic region • Required Wage – higher of the actual or prevailing

20. Prevailing Wages • Two ways to get PWD: Through Dept of Labor OR through FLC Data Center (website) • DOL Wages: DOL will issue a wage by going on FLC Data Center themselves and finding the appropriate job code and wage level • When we get the wage on our own, we run the risk of creating liability for the University, therefore all wages must be obtained through DOL; this creates a Safe Harbor!

26. Actual Wage Memo & Form • Should be completed and submitted along with NIV employer questionnaire • We need to demonstrate that the University is paying H-1B employees at least, if not more, than all other similarly situated employees

29. Procedural Requirements of the LCA • The U.S. employer must file a Labor Condition Application (LCA) with the Department of Labor. The employer must attest to certain things in the LCA, such as paying the FN at or above the prevailing wage for the position. • U.S. employer must post the LCA for ten business days in two conspicuous locations and include the LCA and other documentation in a public access file.

30. General Requirements of LCA • LCA required for every H-1B petition and all H-1B1 & E-3 applications • Purpose – to protect wages and working conditions of U.S. workers • Employer makes attestations on LCA • 10 day posting requirement at work site (2 locations) • LCA form filed electronically with DOL

31. LCA Attestations • All employers must attest: • Working conditions of U.S. workers will not be adversely affected • There is no strike or lockout • H-1B workers will be paid the higher of the prevailing or actual wage • Notice has been provided to all employees

32. Public Access File (PAF) • To be maintained by employer • For every LCA • Retain for 1 year from expiration of LCA or withdrawal of LCA • Must be available for inspection by anyone • Must be created within one working day after the filing of the LCA

33. Additional H-1B Issues

34. H-1B Dependents • H-4: Spouse and children (under 21) • Status contingent on H-1B • No employment; can study full-time • H-4 children who turn 21 need to change status

35. Premium Processing • USCIS Processing Times: 3-5 months • USCIS Premium Processing Fee = $1225 • Premium Processing = 15 calendar days

36. When is Premium Processing NOT Needed? • Premium Processing is usually not needed for a change of employer or extension of H-1B status • Unless there are immediate travel needs • Change of Employer = Employee is currently working for another employer in H-1B status • Extension of Status: As long as the extension petition is filed BEFORE the current H-1B expires, the employee is authorized to work pursuant to their receipt notice for up to 240 days

37. When is Premium Processing Sometimes Needed? • Change of Status: Most common is changing from F-1 or J-1 to H-1B; employee cannot start working until petition is APPROVED • Consular Notification: When the employee is abroad • Please factor in added delays such as scheduling a visa appointment and getting the visa stamp • Travel: When the foreign national wants an immediate approval in order to be able to travel internationally

38. No “Benching” H-1B Workers • Must start payroll when H-1B “enters into employment”, i.e., when he/she first makes him/herself available for work or comes under control of employer but no later than • 30 days after entering US or • If in US, 60 days after start date on petition or change of status by USCIS, whichever is later • No exception where awaiting license • No unpaid status due to lack of work • Unpaid leave OK if: • H-1B unable to work • Worker’s voluntary request

39. H-1B Portability • Enables nonimmigrants currently in H-1B status to begin new employment upon USCIS receipt of an H-1B petition by new employer. Though there is no official guidance, time from termination of earlier employment to filing of new petition should be minimal (usually less than 30 days). • Eligibility Requirements • Must have been lawfully admitted into the U.S • No unauthorized employment subsequent to lawful admission • Non-frivolous H-1B petition must be filed for new employment before expiration of current status • Don’t forget – porting from cap-exempt nonprofit to a for-profit employer means that the foreign national is submit to the H-1B cap.

40. Terminated H-1B Employees • When are they out of status? Is there a “grace period?” • Technically out of status upon last day of actual productive employment • In practice, USCIS provides “reasonable time” to file change of status or new employer petition after termination of employment • Is changing to B-2 status an option? • Employers must offer to pay principal’s transportation costs home (preferably in writing at the time of termination) • Need to send a withdrawal letter to USCIS immediately!

41. Offering Jobs to Potential H-1Bs • Make it clear that the job offer is contingent upon obtaining valid work authorization • Just because they work for you on OPT does not mean they are necessarily eligible for H-1B • H-1B prevailing wages have increased significantly this year • H-1B denials have increased as well

42. Travel Considerations • In order to enter the US in H-1B status, the foreign national must present a valid, unexpired H-1B visa stamp • In order to obtain the visa stamp, foreign nationals must complete an online application form (DS-160), make an appointment at their local Embassy/Consulate and present their original I-797 approval notice and a copy of the application package we filed with USCIS • Exception: Certain foreign nationals may be able to travel to Canada or Mexico for under 30 days without having an unexpired H-1B visa stamp

43. Other H-1B Issues • H-1B’s can take classes which are “incidental” to his/her employment (part-time studies) • Amendments: Is it a “material change”? • Change in job duties, responsibilities and title are good indicators that an amendment is needed • 212(e): Certain J-1 exchange visitors are subject to a 2 year home-residence requirement; such individuals cannot change status to H-1B until they serve the 2 years at home or obtain a waiver

44. Other Temporary Work Visas

45. E-3 Visa for Australian Nationals • Visa category for citizens of Australia to take up professional positions in the U.S. – 10,500 per year available • Job offered must be for a “specialty occupation” as defined for H-1B visa category • Requires certified LCA • Visas can be applied for at consulates without prior USCIS approval • Filings can be submitted to USCIS, but premium processing is not available • 2-year validity; renewable indefinitely • Dependent spouses may apply for employment authorization

46. TN Category for Canadian and Mexican Professionals • Must be nationals of either Canada or Mexico • Coming to U.S. to work in profession listed on NAFTA schedule • Generally require a Bachelors degree in field • Canadians apply at border (non-national dependents must obtain visa at U.S. Consulate) • Mexicans apply at Consulate • Three year stay, renewable indefinitely • Extensions and changes of status may be filed at USCIS Service Center • Employer Specific; can hold dual TN’s

47. O-1 Individuals with Extraordinary Ability or Achievement • The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics • To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability. • Employer specific; but can hold dual O-1s • Anyone still subject to INA 212e (J-1 2 year home residence requirement) can obtain an O-1 visa • 3 years at a time, renewable indefinitely

48. Evidentiary Criteria for O-1 • Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:   • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought • Original scientific, scholarly, or business-related contributions of major significance in the field • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

49. F-1 Student Workers • Six employment programs for F-1’s: • On campus • Severe Economic Hardship • Special Student Relief • Internship with international organization • Curricular Practical Training • Optional Practical Training

50. F-1 Curricular Practical Training (CPT) • Integral part of established curriculum • Need letter from school • School endorsed I-20 (issued via SEVIS System) • Can be internship, practicum, coop, work/study, or similar program • Attended ICE approved school for full academic year in any nonimmigrant status; certain grad students may begin immediately • Available part-time or full-time • One year or more of full-time CPT makes you ineligible for OPT at that educational level • But 24 months of part-time CPT is OK!