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H-1B & Other Employment Visas

H-1B & Other Employment Visas. Andy Buffington Davies Pearson, P.C. Tacoma, WA. H-1B Visa Benefits. Nonimmigrant visa Valid for up to six years Three years at a time Grants work authorization Dual intent authorized. H-1B Requirements. Employer must petition for beneficiary

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H-1B & Other Employment Visas

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  1. H-1B & Other Employment Visas Andy Buffington Davies Pearson, P.C. Tacoma, WA

  2. H-1B Visa Benefits • Nonimmigrant visa • Valid for up to six years • Three years at a time • Grants work authorization • Dual intent authorized

  3. H-1B Requirements • Employer must petition for beneficiary • “Specialty occupation” • Bachelor’s Degree • Equivalent work experience (3/1 rule) • Employer must pay prevailing wage

  4. Examples of Specialty Occupations • Engineer • Computer Scientist • Professor • Accountant • Teacher

  5. Examples of Non-Specialty Occupations • Receptionist • Waitress with a Ph.D. • Customer Service Rep

  6. H-1B Fees • I-129 petition filing fee: $325 • ACWIA fee: • 25 or fewer employees = $750 • More than 25 employees = $1,500 • Anti-fraud fee = $500 • Premium processing (optional): $1,225

  7. H-1B Cap • 65k for bachelor degree jobs • Additional 20k for advanced degree jobs • April 1st filing date • October 1st employment start date • FY 2015 cap reached on 4/7/14 • 172.5k applications received

  8. Cap Exemptions • Cap exemptions include: • Alien changing H-1B employers • Extensions of H-1B status • Any applicant counted against the cap within 6 years • Institutions of higher education • Non-profits (affiliated with institutions of HE) • Governmental research organizations

  9. H-1B Application Process • Two-Step Process • Employer files Labor Condition App with DOL • Employer files I-129 petition with CIS • Upon approval, nonimmigrant’s status changed to H-1B if in US. • 3rd Step For Applicants Abroad • Upon I-129 approval, applicant obtains H-1B visa via US consulate

  10. H-1B Admission/Extension • Status granted for up to 3 years at a time and maximum of 6 years • Status extended beyond six years if LPR application process pending • Note: LPR process can be started before, during or after filing H-1B petition

  11. H-1B Portability • Change of employer allowed • Employee can commence employment with new H-1B employer upon filing new petition • Cannot be out of status when new petition filed • Can work concurrently for two or more employers pursuant to H-1B petitions

  12. OPT AND STEM • OPT: Optional Practical Training • OPT allows for 12 months of training post-graduation for F visa students • Must get a Designated School Official (DSO) rec. • DSO recommends extension and student files I-765 • May file no earlier than 90 days before end of academic year and no later than 60 days after program end date • F-1 students with STEM degrees can get OPT extended from 12 to 29 months

  13. Maintaining OPT Status • May not aggregate over 90 days unemployment during 12 OPT months • STEM: May not aggregate more than 120 days of unemployment during entire 29 months • 60 day grace period to leave US at the end of the OPT or STEM extension • Automatic extension of stay until October 1 and EAD for F-1 student with pending H-1B petition

  14. Other Nonimmigrant Visas • O-1 Extraordinary Ability • B-1 or B-2 visitor • P Entertainer or Athlete

  15. Obtaining LPR Status • Process can occur while in H1-B status • 3 Steps to employment-based LPR status (1) Approved labor cert from DOL (2) I-140 immigrant petition (3) When visa available, file I-485 Note: File via US consulate if abroad

  16. Labor Certification • Establishes that no U.S. workers qualified, willing and able to fill the job • Employer must show pattern of recruitment before filing an LC application with DOL • Sustained advertising of job opening • Valid job offer • Prevailing wage • PERM: Program Electronic Management System

  17. Employment Categories • There are 5 distinct preference categories of employment based immigrant visas. (1) EB-1: Aliens of extraordinary ability in Science, Arts, Education, Athletics or Business (2) EB-2: Members of professions holding advanced degrees and aliens of exceptional ability in business, science and arts

  18. Employment Categories (3) EB-3: Professionals with relevant bachelor’s degrees, skilled workers and unskilled workers (4) EB-4: Certain religious workers, ministers, international organizations (5) EB-5: Persons who invest either $500,000 or $1 million

  19. Visa Backlog • Not all EB visas are immediately available • DOS monthly visa bulletin • China: 5 year EB-2 wait; 1.5 year EB-3 wait • India: 9.5 year EB-2 wait, 10.5 year EB-3

  20. Resources • U.S. Citizenship & Immigration Services • www.uscis.gov • U.S. Dept. of Labor • http://icert.doleta.gov • U.S. Dept. of State • www.travel.state.gov

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