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This powerpoint presentation outlines the H-1B visa process and what employers and employees need to know about H-1B visa processing, the H-1B cap, the F-1 Cap Gap laws and 221g notices at US consulates abroad.
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The FY2014 H-1B Cap: What You Need To
Know About H-1B Processing and Trends
February 20, 2013
Murali Bashyam and Ame CoatsBashyam Spiro & Coats LLP – Immigration Law Group
www.bashyamspiro.com
This Internet seminar is intended solely to provideinformation to the public. Nothing in this webinarshould be taken as legal advice or legal opinion forany individual case or situation.
The information is offered for general information and
educational purposes only.
The participation in this webinar does not create anattorney-client relationship.
TODAY’S OBJECTIVES
Basic Overview of the H-1B Visa
H-1B Cap Numbers
H-1B Cap Exempt Organizations and Strategies
F-1 Cap Gap for Students
NEUFELD MEMO and the “Employer-Employee” Relationship
Are there Alternatives to the End-Client Letter?
Changes in Work Location and H-1B Amendments
Visa Processing and 221G
Questions
Basic Overview of the H-1B Visa
Specialty OccupationHighly Specialized DutiesAttainment of a “Specific” Bach. Degree or
equiv.
Qualified Professional
Temporary (up to 6 years with exceptions)
H-1B Cap Numbers
65,000 Regular Cap (Minus 1400 Chile; 5400 Singapore)
20,000 US Advanced Degree Cap
New H-1B: File April 1st for October 1st Start Date
When Will the H-1B Numbers Run Out? – FY2012 (November); FY2013 (June); FY2014?
Exempt From The Cap – 1) Transfers, 2) Extensions, 3) Previously Been Counted Against the Cap
H-1B Cap Exempt Organizations and Strategies
Working “at”: Institutions of Higher Education or Related or Affiliated
Nonprofit Entities Nonprofit Research Organizations Government Research Organizations
Ex. Sometimes Private Schools have Formal Affiliations with Universities and Are Cap Exempt
Ex. Are You a Private Employer and the H1B Worker will be Working ‘at’ an Institution of Higher Education? Cap Exempt.
F-1 Cap Gap for Students
F-1/J-1 (and Dependents) Who Timely File H-1B C/S Application Can Remain in the US Until the October 1st H-1B Start Date Even if Status Expires Before That Date
File C/S During Grace Period – Can Remain in the US But Cannot Work
File C/S Before OPT Expiration Date – Both Status and OPT Extended Until October 1st
NEUFELD MEMO and the “Employer-Employee” Relationship
January 2010: USCIS issued a memo clarifying what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification.
Who Does it Impact?
H-1B beneficiary/employee working at a third-party (end-client) worksite. (Ex: IT consulting and other staffing industries)
Owner-Employees of Companies (Must show ‘independence’ through Board Resolutions etc.)
The End-Client Letter
USCIS Required from End-Client in Third Party Placement Cases
Letter Must Address Project, Term, Duties, Requirements and Right of Control
Sometimes End-Clients Do Not Want to Give Letters…
Which Begs the Question….
Are there Alternatives to the End-Client Letter?
KIND OF………
Alternatives to the End-Client Letter
No Perfect Solution or Alternative
If Already Placed at End-Client – Badges, Emails from Client Confirming Company Policy, Work, Project Etc.
Direct Client – Vendor Agreement and PO
Sometimes Affidavit
Very USCIS Officer Specific
Changes in Work Location and H-1B Amendments
Fallacy: A Change in Work Location Requires only a new Labor Condition Application (LCA)
If New LCA Is Required for a New Work Location; Must File H-1B Amendment with USCIS
USCIS Site Visits – Officer Visits Location on I-129 Petition; Denials After Site Visits with new LCA but No Amendment
Blog - http://www.bashyamspiro.com/immigration-meditation/2012/03/08/h-1b-amendments-the-times-they-are-a-changin’/
Visa Processing and 221G
221G – Consular ‘Requests for Evidence’
More Frequent in India for IT Professionals
What Can They Request?
END-CLIENT LETTER Company Financials Employee Roster List, With Titles, Duties, Status and Salary Everything You Have Already Submitted To Them!
How Long Does it Take to Receive Decision?
Pre-Plan Before A Trip
QUESTIONS?Please Type Your Question into
the Chat Box on the Webinar Panel…
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