H1 bs and l1s

Immigration Roundtable US Petitions: H1Bs and L1s

December 7, 2012

Troy New York San Francisco Mumbai © 2012, Fakhoury Global Immigration

US Immigration Overview: H1B

Troy New York San Francisco Mumbai

H1-B Visa (Highly skilled worker in a specialty occupation)

Eligibility & Conditions

For foreign workers in specialty occupations

Foreign worker must possess a bachelors degree or higher in the specific field that is relevant to job

• 65,000 H1-B petitions for professionals

• 20,000 H1-B petitions for masters degree holders

• H1B Cap cases can begin to be filed on April 1st of each year;

• Assignees can begin working in October

Accompanying Dependents

Dependents are eligible for H-4 visas for the same duration as H1-B. H4 holders can attend school but not work.

Duration & Renewals

Initial H1-B is granted for 3 years; renewals granted for an additional 3 years.

© 2012, Fakhoury Global Immigration

Historic Timelines of H1B Cap


Year Date Cap Reached

FY 2013 (10/01/2012 to 09/30/2013) June 11, 2012

FY 2012 (10/01/2011 to 09/30/2012) November 22, 2011

FY 2011 (10/01/2010 to 09/30/2011) January 26, 2011

FY 2010 (10/01/2009 to 10/01/2010) December 21, 2009


Trends in H1B Denials


2003 2004 2005 2006 2007 2008 2009 2010 20110%

5%

10%

15%

20%

25%

30%

35%

H-1B Denial Rate at USCIS FY 2003 to FY 2011 Denial Rate


Recent Legal Updates for H1Bs


• U.S. Customs and Border Protection (CBP) planning to eliminate the issuance of I-94 cards

• U.S. Department of Labor (DOL) to issue a new Labor Condition Application

• House Rule 3012


Overview of F-1 Optional Practical Training


F-1 Optional Practical Training (OPT)


For aliens who have or about to complete academic studies at a U.S. college or university.

Issued after the completion of course requirements for bachelor’s, master’s, or doctoral degree programs, and allows alien to work in the U.S.

• 12 month limitation• May only request 90 days before

end of academic year• DSO has to make recommendation• OPT employment has to be in a

field related to the degree

• Alien has to apply for employment authorization with USCIS

• May not begin employment until EAD card is issued

• Alien has 60 days after OPT employment authorization expires to depart the U.S.


Overview of F-1 STEM OPT


F-1 STEM (Science, Technology, Engineering, Mathematics) OPT

Eligibility and Conditions

For F-1 students who are about to exhaust their 12 months of OPT employment authorization.

Allows F-1 student to obtain an additional 17 months of OPT employment

• Alien’s degree must be in a STEM field. (See Immigration and Customs Enforcements (ICE) web site at http://www.ice.gov/sevis/stemlist.htm for a complete list of STEM fields

• Employer must register in E-Verify (An Internet based system that allows businesses to determine the eligibility of their employees to work in the U.S.)

• Alien files a new Form I-765 with USCIS.

• Alien may work while the Form I-765 application is pending with USCIS


http://www.ice.gov/sevis/stemlist.htm

http://www.ice.gov/sevis/stemlist.htm

US Immigration Overview: L1s


L1 Visa (Intracompany Transfer)


Foreign and US employers must be part of the same “qualifying organization”

Must have worked for overseas entity for at least 1 year in last 3 years.

L1A: Managerial or executive capacityL1B: Specialized knowledge

Most of the time, the assignee must be paid by US entity (some exceptions exist)

Blanket L1 petitions are available for multi-national entities that meet certain conditions

Accompanying Dependents

Dependents are eligible for L2 status which does allow for work and schooling in the US

Duration & Renewals

Maximum period granted cannot exceed 3 years. Extensions up to a total of 7 years for L1A; 5 years for L1B


Trends L1 Denials


L-1 Denial Rates: FY 2003 to FY 2011

Fiscal YearL-1A Denial

RatesL-IB Denial

Rates2003 12% 9%2004 13% 10%2005 11% 6%2006 9% 6%2007 8% 7%2008 9% 22%2009 15% 26%2010 13% 22%2011 14% 27%


L1As – Managerial: Definition & Trends


Definition

“Managerial Capacity” means an assignment in an organization in which the employee primarily:

1. Manages the organization, or a department, subdivision, function, or component.

3. Has authority to hire or fire personnel, or recommend other personnel actions, or functions at senior level with respect to function managed.

2. Supervises or controls work of professionals, managerial employees, etc., or supervises a function, department, or subdivision of the organization.

4. Exercised discretion over the day-to-day operations of the activity or function for which the employee has authority.

• USCIS focusing on long alien has been employed with the employer

• USCIS reviews personnel above and below the alien in the proposed position and the position abroad

• USCIS focuses on whether prior or proposed employment meets the definition of managerial capacity

• Qualifying relationship of the employer (Issue for smaller companies)


L1Bs – Specialized Knowledge: Definition & Trends


Definition

Trends in RFEs for L1Bs


Overview of Key Publications


Chamber Letter Key Points


Overview of Proposed Legislation


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H1 bs and l1s