H-1B & Other Employment Visas

Andy Buffington Davies Pearson, P.C.Tacoma, WA

H-1B Visa Benefits

• Nonimmigrant visa • Valid for up to six years • Three years at a time

• Grants work authorization • Dual intent authorized

H-1B Requirements

• Employer must petition for beneficiary• “Specialty occupation” • Bachelor’s Degree• Equivalent work experience (3/1 rule)

• Employer must pay prevailing wage

Examples of Specialty Occupations• Engineer• Computer Scientist• Professor• Accountant• Teacher

Examples of Non-Specialty Occupations• Receptionist•Waitress with a Ph.D.• Customer Service Rep

H-1B Fees

• I-129 petition filing fee: $325• ACWIA fee:

• 25 or fewer employees = $750• More than 25 employees = $1,500

• Anti-fraud fee = $500• Premium processing (optional): $1,225

H-1B Cap

• 65k for bachelor degree jobs• Additional 20k for advanced degree jobs• April 1st filing date• October 1st employment start date• FY 2015 cap reached on 4/7/14• 172.5k applications received

Cap Exemptions

• Cap exemptions include:• Alien changing H-1B employers• Extensions of H-1B status• Any applicant counted against the cap within 6 years• Institutions of higher education• Non-profits (affiliated with institutions of HE) • Governmental research organizations

H-1B Application Process

• Two-Step Process• Employer files Labor Condition App with DOL • Employer files I-129 petition with CIS• Upon approval, nonimmigrant’s status changed

to H-1B if in US.

• 3rd Step For Applicants Abroad• Upon I-129 approval, applicant obtains H-1B visa via

US consulate

H-1B Admission/Extension

• Status granted for up to 3 years at a time and maximum of 6 years

• Status extended beyond six years if LPR application process pending• Note: LPR process can be started before, during or

after filing H-1B petition

H-1B Portability• Change of employer allowed• Employee can commence employment with new H-1B

employer upon filing new petition• Cannot be out of status when new petition filed

• Can work concurrently for two or more employers pursuant to H-1B petitions

OPT AND STEM

• OPT: Optional Practical Training• OPT allows for 12 months of training post-graduation

for F visa students• Must get a Designated School Official (DSO) rec.• DSO recommends extension and student files I-765• May file no earlier than 90 days before end of

academic year and no later than 60 days after program end date

• F-1 students with STEM degrees can get OPT extended from 12 to 29 months

Maintaining OPT Status• May not aggregate over 90 days unemployment

during 12 OPT months

• STEM: May not aggregate more than 120 days of unemployment during entire 29 months

• 60 day grace period to leave US at the end of the OPT or STEM extension

• Automatic extension of stay until October 1 and EAD for F-1 student with pending H-1B petition

Other Nonimmigrant Visas

• O-1 Extraordinary Ability• B-1 or B-2 visitor• P Entertainer or Athlete

Obtaining LPR Status

• Process can occur while in H1-B status

• 3 Steps to employment-based LPR status(1) Approved labor cert from DOL(2) I-140 immigrant petition(3) When visa available, file I-485

Note: File via US consulate if abroad

Labor Certification

• Establishes that no U.S. workers qualified, willing and able to fill the job

• Employer must show pattern of recruitment before filing an LC application with DOL• Sustained advertising of job opening• Valid job offer• Prevailing wage • PERM: Program Electronic Management System

Employment Categories

• There are 5 distinct preference categories of employment based immigrant visas. (1) EB-1: Aliens of extraordinary ability in Science, Arts, Education, Athletics or Business

(2) EB-2: Members of professions holding advanced degrees and aliens of exceptional ability in

business, science and arts

Employment Categories

(3) EB-3: Professionals with relevant bachelor’s degrees, skilled workers and unskilled workers

(4) EB-4: Certain religious workers, ministers, international organizations

(5) EB-5: Persons who invest either $500,000 or $1 million

Visa Backlog

• Not all EB visas are immediately available

• DOS monthly visa bulletin

• China: 5 year EB-2 wait; 1.5 year EB-3 wait

• India: 9.5 year EB-2 wait, 10.5 year EB-3

Resources

• U.S. Citizenship & Immigration Services•www.uscis.gov

• U.S. Dept. of Labor• http://icert.doleta.gov

• U.S. Dept. of State•www.travel.state.gov