H-1B’s and “The Road to the Green

Card”:

What students need to know about U.S. Immigration Law

Presented by:David H. Nachman, Esq.

and

Victoria Donoghue, Esq.

OverviewOverview

H-1B Visas & Alternatives/Gap H-1B Visas & Alternatives/Gap FillersFillers

Employment Based Permanent Employment Based Permanent ResidenceResidence

H-1B VisasTemporary Professional Visas For Professional-Level workers who are

coming to the US to work for a US employer in a specialty occupation– Alien must possess at least the equivalent

of a US Bachelor’s degree AND– Job offer must require at least a Bachelor’s– “Three for One Rule”- 3 yrs of work

experience can be substituted for 1 yr of academic study in order to equate the work experience to a Bachelor’s

Examples of Specialty Occupations Some occupations in the regulations:

Chemist, biologist, engineers, physicists, software developers, system analysts, accountants, economists, teachers, architects

If an occupation is not in the regulations, is a Bachelor’s degree normally required?

Period of Validity

Generally valid for a total of 6 years

Time spent outside of the US can be recaptured

Some exceptions available where additional time in H-1B status will be granted in 1 year increments beyond the 6 year period

Employer Specific

H-1Bs are employer specific, but

– Concurrent H-1Bs are permitted, and

– H-1Bs are portable

– Part-time employment is permitted

Cap on H-1B Visas

Numerical Limitation: 65,000 annually

Additional 20,000 visas for those with US advanced degrees

Cap was met for non advance degree cases on first day of filing for FY 2008- receiving over 180,000

Exemptions from the H-1B cap Current H-1Bs seeking extensions or

transfers to another employer (the cap limits the number of requests for initial employment that CIS may approve each year)

Statutorily exempt employers such as institutions of higher education and nonprofit research organizations

H-1B Petitions

H-1B petitions include:– Form G-28– Form I-129 with H supplements– Certified Labor Conditions

Application (LCA)– Supporting Documentation

Supporting Documentation

Petitioner’s detailed letter of support describing the job duties

Copy of the foreign national’s Bachelor’s degree and transcripts

Evidence that the individual has obtained any required license for the proposed position

Evidence of the foreign national’s legal nonimmigrant status

Supporting Documentation (cont.) If the foreign national possesses a

foreign degree, an educational evaluation must be obtained from a USCIS-recognized evaluation service indicating that the foreign degree is the equivalent of the US degree.

If the 3 for 1 rule is being used, evidence of the experience

The Labor Conditions Application (LCA) Attestations made to the US

Department of Labor (DOL) by an employer seeking to hire employee(s) as an H-1B worker(s).

Sets forth the number of workers sought, the occupational classification, the prevailing wage, the method used to determine the prevailing wage, and the actual wage rate paid

LCA must be available for public inspection within one day of filing the LCA with the DOL

Public Access File

Employer must maintain a Public Access File which is accessible to the public

PAF must be maintained at either employer’s principal place of business in the US or worksite of employee

PAF must be available for public inspection within one working day after filing the LCA with DOL

PAF Contents

Completed and signed LCA Wage Rate Statement (documentation of

wage to be paid) Actual Wage Memorandum Prevailing Wage documentation Evidence of notifying employees or union

regarding LCA Summary of benefits offered to US workers Explanation of differentiation in benefits if H-

1B worker is not receiving same benefits as US workers

H-1B AlternativesH-1B Alternatives

E VisaE Visa L VisaL Visa O VisaO Visa P VisaP Visa R VisaR Visa B-1 VisaB-1 Visa TN VisaTN Visa E-3 VisaE-3 Visa

H-1B Gap FillersH-1B Gap Fillers Take a long vacationTake a long vacation Temporarily change to visitor visaTemporarily change to visitor visa Reinstate student statusReinstate student status Temporarily change to a nonimmigrant Temporarily change to a nonimmigrant

training visa (H-3)training visa (H-3) B-1 Visa in Lieu of an H-1B visa Extension of OPT from 12 to 29 months for

individuals with STEM degrees employed by an E-verify employer

J-1 training visa

Employment Based Employment Based Permanent ResidencePermanent Residence

Requirements:Requirements: Full-time employmentFull-time employment Attainment of DOL Labor Attainment of DOL Labor

CertificationCertification Ability to payAbility to pay Availability of Immigrant visa Availability of Immigrant visa

numbernumber

11stst Preference (EB1): Preference (EB1):No Labor Cert RequiredNo Labor Cert Required

Outstanding Professors & Outstanding Professors & ResearchersResearchers

Aliens of Extraordinary AbilityAliens of Extraordinary Ability- Top of their field- Top of their field

EB1 EvidenceEB1 Evidence

PublicationsPublications Presentations at International Presentations at International

SymposiaSymposia Judging the Work of othersJudging the Work of others International PrizesInternational Prizes PatentsPatents Contribution of Original Research in Contribution of Original Research in

the fieldthe field

22ndnd Preference (EB2): Preference (EB2): Labor Cert Usually Labor Cert Usually

RequiredRequired

Advanced Degree ProfessionalAdvanced Degree Professional- Job requires a degree beyond - Job requires a degree beyond

a BAa BA

National Interest National Interest Waiver:Waiver:

NO Labor Cert RequiredNO Labor Cert Required Seeking employment in an area Seeking employment in an area

of “substantial intrinsic merit”of “substantial intrinsic merit” The benefit will be national in The benefit will be national in

scopescope The national interest would be The national interest would be

adversely affected if a labor cert adversely affected if a labor cert were requiredwere required

33rdrd Preference (EB3): Preference (EB3): Labor Cert RequiredLabor Cert Required

Aliens who hold Bachelor’s Aliens who hold Bachelor’s degrees and are members of the degrees and are members of the professionsprofessions

Aliens capable of performing Aliens capable of performing skilled laborskilled labor

Aliens capable of performing Aliens capable of performing unskilled laborunskilled labor

Procedure for PERM

Position & Prevailing Wage Determination （ PWD ）

Posted Notice, In-house Media, Job Order, & Advertisements

Recruitment Report

Filing

DOL Process

DOL Notice （ Approval or Audit Request ）

Response to Audit Request from DOL

Final Approval or Denial

　

Thank You

Questions?

Please contact our office for further information:

Victoria_Donoghue@visaserve.comDavid_Nachman@visaserve.com

info@visaserve.com201-670-0006

http://www.visaserve.com