The H-1B Visa

The H-1B Golden Ticket• The key to working in the U.S. after a

student completes the optional practical training

• Very few other immigration options, including other nonimmigrant visas granting authorization to work

• Obtaining legal permanent residency is usually a long process

Other Nonimmigrant Visas• Treaty Nafta (TN) • Must be a citizen of Canada or

Mexico• Restrictive list of professions

• E-1 and E-2 for treaty trader and treaty investor• Treaty with the alien’s country• Substantial trade or investment

Cont. Other Nonimmigrant Visas• L-1 Intracompany Transferee• L-1A executive or manager• L-1B specialized knowledge• Must have worked for affiliated

company abroad for at least 1 year• Must be coming to the US to work

for affiliated company as executive, manager or specialized knowledge

Cont. Other Nonimmigrant Visas• O-1 Extraordinary Ability• E-3 Australian Specialty Occupation• F-1 Student• J-1 Exchange Visitor• B-1 or B-2 Visitor• P Entertainer or Athlete

Cont. Other Nonimmigrant Visas• Miscellaneous other visas (diplomats,

cultural exchange, etc.)

Summary of the H-1B Visa• Nonimmigrant (temporary) visa • Six years (with certain exceptions)• Professional or “specialty” occupation

requiring a bachelor’s degree• Employer specific• Location specific

The H-1B Visa

Concurrent Employment• An alien can work concurrently

for two or more employers pursuant to H-1B petitions.

The H-1B Visa

General Requirements

Sponsorship by an Employer• An employer must file an H-1B petition

on behalf of the alien• Self-employment is not allowed.• The alien could establish a company

and that company could sponsor the alien.

Definition of Specialty Occupation1) An occupation that requires the

theoretical and practical application of a body of specialized knowledge, and

2) Attainment of a bachelor’s degree or higher (or equivalent) in the specific specialty as a minimum for entry into the occupation in the US

General Requirements

Examples of Specialty Occupations• Examples: • Engineer • Computer scientist• Physician • Professor • Accountant • Teacher

Examples of Non-Specialty Occupations• Waitress with a Ph.D. in linguistics• Life insurance agent• General/office manager• Customer service representative in

nontechnical field

Cont. Specialty Occupation• The alien must have at least a

bachelor’s degree in the related field or:

1) Foreign academic equivalent;

2) Equivalent work experience (3/1 rule); or

3) Combination of both.

General Requirements

Prevailing Wage for the H-1B• The employer must pay at least

the prevailing wage or the actual wage, whichever is higher.

• It is determined based on minimum requirements and the area of intended employment.

• The Department of Labor’s website provides four wage levels.

• A private survey may be obtained.

Processing Procedures

Processing Procedures

Changing Status from F-1 to H-1B • The F-1 need not leave the country to obtain

H-1B status. • The F-1 alien should file to change status well

in advance, since employment pursuant to the H-1B petition cannot commence until the petition is approved and a visa number is available.

The H-1B Cap on Visa Numbers• 65,000 for the bachelor’s degree• 20,000 additional numbers for those

with a master’s degree or higher from a U.S. institution.

Changing Status from F-1 to H-1B

Fiscal Year for the H-1B Cap • Visas become available October 1st of

each year.• The fiscal year runs from October 1st to

September 30th.

Cont. H-1B Cap• The earliest an employer can file an H-

1B petition subject to the cap is April 1st of each year (cannot file more than 6 months in advance of the start date).

• The earliest start date that can be requested is October 1st of that same year.

• For this year, the earliest an alien can obtain H-1B status is October 1, 2008.

Cont. H-1B Cap• The H-1B cap in both the bachelor’s

and master’s categories for this fiscal year (10/1/08 to 9/30/09) was reached on April 7, 2008.

• Petitions received from April 1st to April 7th are subject to a computerized random lottery.

Cont. H-1B Cap• Last year, the H-1B cap was reached

on April 1, 2007, the first day of filing. Some figures suggest that up to 200,000 petitions were received.

Processing via Change of Status• An F-1 student can change status and

remain in the US after the petition is approved for October 1st only if the student’s F-1 status, including the 60-day grace period, is through October 1st.

• No gap in status is allowed to change status.

Changing Status from F-1 to H-1B

The H-1B Cap-Gap• Prior to the new Optional Practical

Training (OPT) rules, when a gap occurred between the expiration of the F-1’s status and October 1st, the F-1 student would have to leave the country and reenter on October 1st of that fiscal year.

Example of Cap-Gap from F-1 to H-1B• F-1 student’s optional practical training

is expiring on July 15, 2008. The student would not be able to change status to H-1B and remain in the US, since her 60-day grace period would expire before October 1, 2008.

• If the F-1’s OPT was expiring on August 30th, then she could change status.

Old Rule: No Employment during Grace Period• If the F-1 was granted a change of

status to H-1B, the F-1 could not work during the 60-day grace period.

New Rules on OPT Extension and Cap-Gap Fix• Provides automatic extension of stay

and work authorization for all F-1 students with pending H-1B petitions until October 1st of the year the visa is requested

• Extends OPT from 12 to 29 months for F-1 students with a degree in science, technology, engineering or math who are employed by a company in E-Verify

Requirements for Cap-Gap Extension of Status and Work Authorization• H-1B petition timely filed • Requested change of status • October 1st start date • No violations of F-1 status • Terminates upon the rejection, denial or

revocation of the H-1B petition

Requirements for OPT STEM 17- Month Extension• Currently in 12-month period of

approved post-completion OPT• At least a bachelor’s degree in science,

technology, engineering or mathematics (STEM), which include:

Cont. OPT STEM Extension• Computer Science Applications• Actuarial Science• Engineering or Engineering

Technologies• Life Sciences• Math• Military Technologies• Physical sciences

Cont. OPT STEM Extension• Working for US employer in a job

directly related to the student’s major area of study

• Be working for, or accepted employment with, employer enrolled in USCIS’s E-Verify program

Cont. OPT STEM Extension• Report to the DSO regarding changes

in the program or address• Properly maintain status in the US

When to Apply for OPT STEM Extension• The student must apply before the

current post-completion OPT expires.• If a student timely files the I-765, but

the OPT expires prior to the decision, the student’s OPT is extended automatically.

Requirements Post Extension Approval• The student must report to the DSO by

email, within 10 days, any change in:• Legal name• Residential and mailing address• E-mail address• Employer name• Employer address• Job title or position

Requirements Post Extension Approval• Supervisor name and contact

information• Employment start date• Employment end date

• The student must report to the DSO every 6 months by email confirming the information (even if no changes)

•

Requirements Post Extension Approval• The requirement to report continues

even past the 17-month OPT extension if the student’s OPT is further extended by the cap-gap extension.

E-Verify• Free, internet-based system operated

by the Social Security Administration and USCIS that allows employers to determine employment eligibility of newly-hired employees

• Electronically compares information on the Form I-9 (employment eligibility verification form) with records in the SSA and DHS databases

Cont. E-Verify• It is a flawed system with false positives

for US citizens.• Approximately 33,000 employers (or

1% of all employers) are currently enrolled.

• This requirement will present a substantial hurdle for many F-1 students seeking OPT extensions.

Hidden “Stick” in New OPT Rules• The F-1 student may not aggregate

more than 90 days of unemployment during the first 12 months in OPT.

• The F-1 student may not aggregate more than 120 days of employment during the entire 29-month, extended OPT period.

Link to New OPT Rules• “Extending Period of Optional Practical

Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions,” April 8, 2008: http://edocket.access.gpo.gov/2008/E8-7427.htm

Petitions Exempt from the H-1B Cap• Certain employers and petitions

are not subject to the visa cap.

Changing Status from F-1 to H-1B

Cont. Cap Exemption• If not subject to the cap then the H-1B

petition can be filed and the employment may commence at any time during the year.

Cont. Cap Exemption• Cap exempt petitions and employers

include:• Any alien counted against the cap

within the past six years

Changing Status from F-1 to H-1B

Cont. Cap Exemption• J-1 who has obtained a waiver

through the State 30 program• Institutions of higher education• Nonprofit entities affiliated with

institutions of higher education• Nonprofit or governmental

research organizations

Changing Status from F-1 to H-1B

Cont. Cap Exemption• An alien changing H-1B employers, as

long as she was not working at a cap-exempt institution previously

• Extensions of H-1B status

Changing Status from F-1 to H-1B

Filing Fees and Attorney Fees• The employer must pay certain fees

(ACWIA, fraud) • Certain employers are exempt from

those fees

Premium Processing• $1,000 filing fee • USCIS must adjudicate the petition

within 2 weeks of receipt or request additional evidence within this time frame

• Not necessary to obtain a visa number, since the filing of the petition secures the petition’s place in line for a visa number

Changing Status from F-1 to H-1B

Post-filing Issues

Portability• H-1B change of employer petitions • The employee can commence

employment with the new H-1B petitioning employer upon the filing of an H-1B petition.

Post-filing Issues

Admission and Extension• H-1B status granted for up to three years

at a time and for a maximum of six years.• H-1B status can be extended beyond six

years if the process for legal permanent residency through an employer has reached a certain stage.

• The alien can start the process for legal permanent residency either before, during or after filing the H-1B petition.

Filing for Legal Permanent Residency