LAW OFFICE OF CLAUDINE U. GASANA2425 WEST LOOP S., SUITE 200HOUSTON, TEXASWWW.CUGASANALAW.COM281-809-5599/678-2964796

H-1B Professional Occupation Visa

What is a Professional Occupation?

Position that requires at least a Bachelor’s Degree in the field of the occupation to perform the duties

Examples: Attorney, Engineer, Physician, Accountant, Teacher, Financial Analyst, Dentist, etc.

Bachelor's Degree or foreign equivalent or combination of degree/experience

Employee specific

Part-time or fulltime

Concurrent H-1B for multiple employers

6 years maximum; granted in 3 year increment

Exceptions to 6 year limit: LC or I-140 pending for 365

days or approved but not immigrant visa available

At-will employment

Premium Processing available re-opened for all petitions

H-1B CAP per Fiscal Year-October 1 to September 30

H-1B CAP applies to first time applications 65,000 per fiscal year 20,000 for U.S. graduates with MS/MA or higher

degree 5,400 Singapore 1,400 Chile

Employer not subject to the H-1B CAP

- Institutions of higher educations : Universities and colleges

- Non-profit organizations affiliated with institutions of higher education

- Non-profit research organization

- Government research organization

No employment authorization

Can go to school

If H-4 spouse wants to work, must apply for own visa

Eligible for Employment authorization if spouse holds H-1B beyond 6 years per AC21

Premium Processing for H-1B Extensions or Transfers resumed on 10/03/2017

RFE Requests: Wage Level and Specialty Occupation

What’s happening in DC

Applies to all F-1 OPT students who file H-1B petition during

acceptance period (on or after April 1)

If H-1B Petition is filed on or after April 1:

- F-1 status automatically extended

- OPT (employment authorization) automatically extended

- If selected for H-1B-cap-gap relief until September 30

(H-1B starts on October 1)-no gap

- If not selected, cap-gap relief ends upon rejection, denial

or revocation (60 day grace period from notification)

H-1B1’s for Chile and Singapore

- 1,400 (Chile); 5,400 (Singapore)

- Can apply directly at embassy or by mail with USCIS

Position that requires at least a Bachelor’s Degree

18 month visa

No portability

No immigrant intent

Can change to regular H-1B, but subject to cap

Position must be on list of occupations

Canadians-apply at border

- 3 year visa; renewable

Mexicans-apply at U.S. embassy in Mexico

- 1 year visa; 3 year admission (I-94 card)

No immigrant intent

Spouses and children receive TD visa

10,500 per year

2 year visa, renewable indefinitely

Apply at U.S. embassy in Australia

Spouses and children receive E-3 derivative visa

Spouses can apply for work permit

One year of employment abroad at parent, affiliate, or subsidiary in

an executive, manager, or specialized knowledge capacity

Must be coming to U.S. to fill executive, managerial, or specialized

knowledge position.

May come to open a new office:

- Must secure office premises

- New office will support the Executive/Manager/Specialized

Knowledge position within one year of L approval

- L-1 Individual vs. L-1 Blanket

L-1A-total of 7 years L-1B-total of 5 years L-1B change to L-1A – move to a managerial

position for at least 6 months; additional 2 years to 5 years.

Spouses and children receive L-2 visa Spouses may apply for work permit Fast-track green card (EB-1)

Known as the Artist Visa or the Entertainment Visa

Extraordinary means skill and recognition significantly above that ordinarily encountered

Must meet 3 out of the following criteria:

- Major award or lesser national or international prizes of awards

- Press/Media Coverage

- Significant recognition for achievements from organizations, experts, etc. (testimonial/recommendation letters)

- Lead, starring, or critical role for distinguished productions/events

- Lead, starring, or critical role for distinguished organizations

- High compensation/salary

- Critical or commercial success (box office/film festivals)

- Acting as a judge (for awards, etc.)

Extraordinary means one of that small percentage who has risen to

the very top of the field of endeavor

Must meet 3 out of the following criteria:

- Lesser national or international prizes of awards

- Membership in associations requiring outstanding achievements

- Published materials written by others about the alien

- Participation, individually, or on a panel, as the judge of the work

of others

- Original contributions of major significance

- Authorship of books or articles

- Conference presentations

- Critical role for distinguished organizations

- High compensation/salary

- Commercial success

Reaching 6 year H-1B max

H-1B Quota reached

Arts/Entertainment has lower standard- More flexibility with production schedules

- No prevailing wage issues

J-1 subject to two year home residency requirement

Spouses/children-O-3

- Can attend school

- If spouse wants to work-must apply for own visa

Tied to O-1 visa holder

Assists in the performance of the O-1

Must show preexisting, longstanding relationship with O-1

Must be integral part of the actual performance and have critical skills and experience with O-1 alien which are not of general nature and not possessed by a U.S. worker

Continuity of production (e.g.: movie shoot in two countries

Who could qualify?

- F-1/OPT

- J-1 subject to two year home residency requirement

Must have treaty with U.S

Company must be at least 50% owned by nationals of Treaty Country

Foreign national must have nationality of Treaty Country

Trade: Carry on substantial trade in goods, services and technology, principally between the United States and the foreign country of which s/he is a citizen or national

Investor: Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States

The investment enterprise may not be marginal and the funds must be at risk

Can hire employee who has nationality of Treaty Country and who is coming to engage in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

E.g.: Company in U.S. is 50% French owned; can hire French under E visa

Advantage: no experience with company abroad required

Pilot programs-Work /Travel J-1- Australia- New Zealand- South Korea- Ireland

H-3 trainees

R-1 Religious Workers- Religious VocationPriest, nuns, monks, rabbi

- ProfessionalsE.g.: teachers, instructors, music director

EB-1 (First Preference)

- Aliens of Extraordinary Ability

in sciences, arts, education, business, or athletics through sustained national or international acclaim

one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal), OR

Meet three criteria to demonstrate extraordinary ability

Self-petition available

- Outstanding Researcher/Professors:

international recognition for outstanding achievements in a particular academic field

must have at least 3 years experience in teaching or research in that academic area.

pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.

Requires employer sponsorship

- Multinational Executives and Managers (green card version of L-1A)

One year of employment abroad at parent, affiliate, or subsidiary in an executive or manager capacity

Must be coming to U.S. to fill executive, or managerial position

Schedule A, Group I-Physical Therapists, Professional Nurses such as Nurse Practitioners

Schedule A, Group II Alien of Exceptional Ability in Arts, Sciences, or Performing Arts

Advanced Degree Holders- Masters or higher or foreign equivalent

- BA plus five years progressive experience

Professionals with BA degree or foreign equivalent

Skilled workers with 2 years of experience

Other workers

Professionals

◦ EB-2 Advanced Degrees Holders

◦ BA plus 5 years Experience

◦ BA with or without experience

◦ Employer must conduct “good faith” recruitment efforts and show that there are no qualified U.S. worker to perform the duties of the position

◦ Mandatory advertisement:

Sunday Newspaper and

State workforce agency-job order

◦ Prevailing wage

Job notice

◦ 3 additional forms of advertisement: employer website, job search website, on campus recruitment,…

Non-Professionals◦ EB-3 skilled workers with 2 years of experience◦ EB-3 non-skilled workers◦ Sunday Newspaper◦ State workforce Agency-job order◦ Job notice◦ Prevailing wage

Special handling PERM for University◦ Lesser restrictive criteria- More qualified◦ Notice of Filing◦ Advertisement in National Professional Journal

Retrogression EB-2 vs. Eb-3 processing times Backlogged countries: China and India

EB-4 Religious Worker EB-5

- $1 million investment/ 10 direct jobs/new commercial enterprise

- Regional center programs-$500,000/ direct or indirect jobs

Step 1: Choose qualifying preference: e.g. EB-1, EB-2, PERM

Step 2: File I-140 Immigrant Worker Petition- Priority Date-Visa bulletin

Step 3: File I-485 Adjustment of Status

Extended absences not advised File for re-entry permit Maintain ties to U.S.

File for Naturalization 4 years and 9 months Spouses of U.S. citizens : 2 and 9 months Must be physically present for at least half

the time

Questions?

Claudine Umuhire Gasana, Immigration Attorney

LAW OFFICE OF CLAUDINE U. GASANA2425 WEST LOOP S., SUITE 200

HOUSTON, TEXASWWW.CUGASANALAW.COMclaudine@cugasanalaw.com

281-809-5599/678-296-4796