H-1B & Other Employment Visas Andy Buffington Davies Pearson, P.C. Tacoma, WA.
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Transcript of H-1B & Other Employment Visas Andy Buffington Davies Pearson, P.C. Tacoma, WA.
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