BDM Immigration Law Presentation to L&C Sept 2014 2

7/21/2019 BDM Immigration Law Presentation to L&C Sept 2014 2

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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC

Employment Based Immigration:

Analysis of EB Related Provisions of the

Immigration and Nationality Act (Part 2)

Bradley D !aier

"ch#a$e% &illiamson ' &yatt

*+,-.+2// 0 $maier1sch#a$ecom

cto$er 3% 23/Copyright Schwabe, Williamson & Wyatt. 2014. All rights reserved


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NNI!!I4RAN5 E!P67!EN5

BA"ED 8I"A 9A5E4RIE"


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BA"ED 8I"A 9A5E4RIE"Visa Bulletin


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BA"ED 8I"A 9A5E4RIE"September 2014 September 2013


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U.S. Immigration law currently provides for a varietyof nonimmigrant (nonpermanent) guest worker visa

categories (8 C.F.R. 214.2). The categories thatare most commonly used include:

E-1/E-2 Treaty Trader/Investor

H-1B Specialty Occupation

L-1 Intracompany TransfereeO-1 Extraordinary Ability or Achievement

P-1 Professional Athletes and Entertainers

TN Treaty National


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U.S. Immigration law currently provides for a varietyof nonimmigrant (nonpermanent) guest worker visa

categories (8 C.F.R. 214.2). Other less usedcategories include:

H-2B Temporary or Seasonal Workers

J-1 Exchange Visitor

R-1 Religious Worker

Other: B-1 Visitor For Business

F-1 International Student


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4eneral 9onsiderationsGather info and analyze:What is job/purpose?

Nationality?

Timeframe? (Border app or premium processing)?

U.S. entity involved?

Size of entities in terms of # of employees and revenue.

Applicant and his/her credentials.

Current/prior immigration status (keeping in mind time limitations on somecategories).


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+3B Brief vervie#

INA 101(a)(15)(H)(i)(b)/8 C.F.R. 214.2(h).

Timing considerations due to limited numberof visas and tied to fiscal year. There are65,000 H-1B visas available per year + an

additional 20,000 set aside for holders ofU.S. earned masters degrees.


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Total: 76,743


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+3B Demand


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+3B Demand


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+3B Brief vervie#

Position must involve a specialty

occupation as defined by INA 214(i)(1)and 8 C.F.R. 214.2(h)(4)(ii), as requiring:Theoretical and practical application of a body ofhighly specialized knowledge, and

Attainment of a bachelors or higher degree inthe specific specialty (or its equivalent) as aminimum for entry into the occupation in theU.S.


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+3B Brief vervie#To qualify, employer must demonstrate that:A bachelors or higher degree or equivalent is normallythe minimum requirement for entry into the occupation;

Degree requirement is common in the industry in parallelpositions among similar organizations OR the particularposition is so complex or unique a degree is required;

Employer normally requires a degree or equivalent; OR

Nature of specific duties are so specialized or complexthat knowledge required to perform the duties is usuallyassociated with a particular degree.


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+3B Brief vervie#Key additional requirements:Employee must possess the required degree (or

equivalent).Employer must be willing to pay the requiredwage (higher of actual wage or prevailing wage)free and clear.

Employer must obtain certified Labor ConditionApplication from DOL before filing with USCIS.

Employer must provide notice of hiring toaffected work force or bargaining representative.


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+3B Brief vervie#

Key additional requirements (cont.):

There must be a true employer/employee relationship.

Employer must pay for reasonable cost of transportationback home if employee terminated early.

There must not be a strike or lock out in place.

No test of labor market required but may not displace aU.S. worker or adversely affect the wages and/or workingconditions of U.S. workers.

Visas must be available. Timing (and luck) are key.


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+3B Brief vervie#Hypothetical 1:

Josies Garage is relatively small with only five employees total. Josie

currently employs Peter, a citizen of Australia and recent graduate from

PSU with a degree in finance and accounting. Shes been employing Peter

based upon his post-graduation temporary Employment Authorization

Document that is valid for another six months. Hes also a skilled auto

mechanic. Shed now like to employ him full-time. Hes told her that she

should be able to get an H-1B for him. Do you agree?


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+3B Brief vervie#Hypothetical 1:

Josies Garage is relatively small with only five employees total. Josie

currently employs Peter, a citizen of Australia and recent graduate from

PSU with a degree in finance and accounting. Shes been employing Peter

based upon his post-graduation temporary Employment Authorization

Document that is valid for another six months. Hes also a skilled auto

mechanic. Shed now like to employ him full-time. Hes told her that she

should be able to get an H-1B for him. Do you agree?

Assuming a qualifying position, what if H-1B visas were gone for the year?


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+3B Brief vervie#

Hypothetical 2:

Excelsior Inc. is a medium sized software development company based in

Seattle. The companys biggest client is Microsoft. Bhanu is a citizen of

India and one of the companys software engineers. She received an

undergraduate degree and masters degree in computer science from a

university in India. Shes currently working for the companys subsidiary in

India. The company would now like to employ her in the U.S.


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+3B Brief vervie#

Hypothetical 2:







Start up phase without a lot of capital? Employees putting in sweat equity.


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+3B Brief vervie#

Hypothetical 2:







Start up phase without a lot of capital? Employees putting in sweat equity.What if parent company was Indian?


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Employment Based Permanent

ResidenceEMPLOYMENT-BASED PREFERENCES

First:Priority Workers: 28.6% of the worldwide employment-based preference level, plusany numbers not required for fourth and fifth preferences.

Second:Members of the Professions Holding Advanced Degrees or Persons ofExceptional Ability: 28.6% of the worldwide employment-based preference level, plus any

numbers not required by first preference.

Third:Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level,plus any numbers not required by first and second preferences, not more than 10,000 of

which to "*Other Workers".

Fourth:Certain Special Immigrants: 7.1% of the worldwide level.

Fifth:Employment Creation: 7.1% of the worldwide level, not less than 3,000 of whichreserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside

for investors in regional centers by Sec. 610 of Pub. L. 102-395.


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Residence


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Residence


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Residence


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!atter of >a?arian

Kazarian v. U.S. Citizenship and Immigration Services, 580 F.3d 1030(9th Cir. 2009).

Kazarian v. U.S. Citizenship and Immigration Services, 596 F.3d 115(9th Cir. 2010).

Rijal v. U.S. Citizenship and Immigration Services, Case No. C10-709RAJ, U.S. District Court, Western District of Washington, February

22, 2011).


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Sh b Willi &W | P ldOR | B dOR | Sl OR | S l WA | V WA | W hi DC

5han@ yo

Bradley Maier is an attorney with the Northwest law firm of Schwabe, Williamson & Wyatt where

he focuses on business immigration and customs law and compliance. He assists foreign and

domestic companies with a wide variety of immigration matters to acquire foreign talent and key

personnel. He also advises companies regarding I-9 compliance and U.S. customs. A native

Oregonian, he attended Lewis & Clark Law School, Reed College and Portland State University.Before law school, Mr. Maier directed immigration counseling programs for two local non-profits

as an Accredited Representative. His professional accomplishments have been recognized by

Chambers USA, Oregon Super Lawyers, and the Daily Journal of Commerce. Mr. Maier is an

active member of the American Immigration Lawyers Association (AILA) and served as Chapter

Chair of the Oregon Chapter between 2010 and 2012.

Documents

BDM Immigration Law Presentation to L&C Sept 2014 2