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 • “Specialty occupation” • Bachelor’s Degree • Equivalent work experience (3/1 rule) • Employer must pay prevailing wage

Examples of Specialty Occupations

• Engineer • Computer Scientist • Professor • Accountant • Teacher

Examples of Non-Specialty Occupations

• Receptionist • Waitress with a Ph.D.

• Customer Service Rep

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

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

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

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.

• 3 rd Step For Applicants Abroad • Upon I-129 approval, applicant obtains H-1B visa via US consulate

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

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

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

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

Other Nonimmigrant Visas

• O-1 Extraordinary Ability • B-1 or B-2 visitor • P Entertainer or Athlete

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

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

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

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

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

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