Employment Options: H-1B and PermanentResidence

Eastern Michigan University Fall 2013

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Tracy SchauffSenior Attorney

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Fragomen, Del Rey, Bernsen & Loewy, PLLC50 West Big Beaver Road, Suite 200

Troy, MI 48084Tel: 248-649-5404Fax: 248-649-5121

tschauff@fragomen.comwww.fragomen.com

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Today’s Topics

•Non-immigrant basics•Costs•Basics of Employment-Based Permanent Residence•The PERM process•Alternatives to PERM•The Rest of the Process•Immigrant visa backlogs•Your rights / responsibilities

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What is an H-1B visa?

•H-1B visas are for temporary (nonimmigrant)workers engaged in a specialty occupation thatrequires (1) theoretical and practical application ofhighly specialized knowledge and (2) attainmentof a bachelor's or higher degree, or equivalentexperience, in the specific specialty for entry intothe occupation.

What is an H-1B continued….

•H-1B visas are valid for 3 years•Can be extended for an additional 3 year period for atotal of 6 years

•Previous stays in L-1 or H-1 status (but not L-2 or H-4dependent status) count towards maximum period ofstay.

•H-1B visas can be extended past the 6-year maximumin certain situations.

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What is the H-1B “Cap?”

• H-1B petitions are limited on a fiscal yearbasis (Oct 1 – Sept 30)

• 65,000 new petitions are permitted eachyear though 6,800 of that amount are reservedfor nationals of Singapore and Chile (H-1B1visa)

• An additional 20,000 petitions are permittedfor holders of U.S. advanced degrees.

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H-1B cap cont’d.

•Employers can begin filing H-1Bs on April 1 foremployees that they want to hire on October 1 orafter.

•Once the government has received enoughpetitions to reach the 65,000 annual limit (or20,000 advanced degree limit), it has reached the“cap” and employers cannot file any new H-1Bpetitions until the following April 1 for the nextfiscal year.

• If USCIS receives more than enough petitions tomeet the cap, it uses a computerized lottery toselect the petitions that will receive a cap number.

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H-1B cap cont'd.

•The cap applies only to new H-1B petitions. H-1Bextensions, amended petitions or concurrent H-1Bemployment petitions are NOT counted towards thecap.

•The cap does not apply to H petitions filed forhigher educational institutions, non-profit researchinstitutions, government and researchorganizations.- But persons who have a cap-exempt non-profit H may

become cap subject if they change to a for-profit H-1Bemployer.

H-1B requirements

•Position must require a minimum of a Bachelor’sdegree (or equivalent)

•Foreign National’s degree must be related to thefield/position

•Employer must attest that not replacing laid offworkers

•Employer required to withdraw H if employment endsprior to expiration date (may leave you out of status)

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Your rights

•Employer must pay costs associated with the H-1Bapplication

•Employer must pay 100% of the prevailing wage or theactual wage, whichever is higher

•Employer must offer to pay the reasonable costs ofyour return transportation home if you are terminatedprior to the expiration of your H-1B

•Employer must provide you a copy of the certified LCA•Sponorship does not create an employment contract•Employers are not required to sponsor – lawful reasonto not hire

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Your rights – continued…

•Cannot lay-off, bench, RIF•Unpaid leave only if voluntary or unable to work•Employers cannot discriminate except in certaincircumstances- i.e. Federal contracts requiring U.S. Citizens only

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H-1B Costs

•Government filing fees- Eg. Typically range from $825 to $4325 not including

dependents•Legal fees

- Vary based on type of approach•Employer’s responsibility

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Annual Quota for Green Cards based on Joband/or Skills

140,000 for 5 employment based preferences- 40,000 for EB1 priority workers- 40,000 for EB2 advanced degree- 40,000 for EB3 professional/skilled workers/ other workers- 10,000 for EB4 special immigration- 10,000 for EB5 investors- Spill down/Spill up/+unused FB from family-based

immigration

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Employment-Based PR

• The 3 most relevant EB categories- EB1 Priority workers

• EB11 Aliens of Extraordinary Ability• EB12 Outstanding Professors & Researchers with tenure

track/tenured or permanent positions• No labor certification required

- EB2 Positions requiring an advanced degree or exceptional ability• Labor certification required with some exceptions• Foreign national must possess and position must require either an advanced

degree or exceptional ability• National Interest Waiver (NIW)

- EB3 Positions requiring at least a bachelor’s degree• Labor certification required with some exceptions

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Employment-based PR Process•Usually 3 steps:

- Labor certification (ETA-9089)- Immigrant petition (I-140)- Application for Adjustment of Status or immigrant visa (I-

485 or DS-230)

•2 steps in some cases:- Immigrant petition (I-140)- Application for AOS or immigrant visa (I-485 or DS-230)

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What’s Labor Certification About?

• Test of job market to make sure U.S. workers are notdisplaced by a foreign national seeking permanentresidence

• Search for able, willing, qualified and available U.S.workers.

• Cannot file labor certification application if a minimallyqualified U.S. worker is available.- For teaching positions, need only show that the foreign

national was more qualified than US worker applicants asdetermined by the search committee

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What’s Labor Certification About?

• Is it wrong to recruit for a position which is already filledby the foreign national?- DOL Inspector General audit found that 90%+ of labor

certifications were filed on behalf of employees already in theposition

- DOL has no problem with it- Regulatory posting for teaching positions has always been

after the foreign national hire- Double edged sword for the foreign national as U.S. worker

could be identified to replace FN

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PERM(Program Electronic Review Management)

•Attestation and audit system- Online electronic applications for labor certification- Processing times range from weeks to 8 months for standard

cases• Audited cases averaging 2 years from audit reply

- DOL auditing about 50% of cases with increased number ofaudits expected

- Advertising and recruitment take place before laborcertification application is filed

- If minimally qualified US worker not available, then can fileapplication

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Alternatives to Labor Certification

• EB11 Extraordinary Ability• EB12 Outstanding Professor/Researcher• EB2 + National Interest Waiver or DOL designated shortageoccupation

• Immigrant petition (I-140) filed with USCIS to start PR process• USCIS has raised standards for these categories

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Aliens of Extraordinary Ability• International Reputation as extraordinary in the field

- “One of a handful of the best”• No labor certification required• Substantial prospective benefit to the U.S.• Exclusive category, but not unreachable• Interpretive evidence

- Opinions from experts often not give sufficient weight by CIS; CISofficers prefer to make their own evaluation

• May be “self petitioned”• Job need not require extraordinary ability

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Outstanding Researchers and Professors

•International reputation as outstanding in an academicfield

•3 years of teaching and/or research experience in theacademic field

•Offer of employment for tenured or tenure-trackposition or “permanent” research position- Research position must have history of funding, be deemed

permanent within employer’s rules, and not be finite in nature(eg., postdoc)

Outstanding Researchers and Professors con’t..

•May not be self petitioned•Job offer required, but labor certification is not required•May count teaching and/or research experience whileworking towards advanced degree, if:- degree acquired;- research has been recognized as outstanding; and- full responsibility for classes taught

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National Interest Waivers

•Ordinarily, job offer and labor certification required forEB2 advanced degree or exceptional ability - waived ifthe work is in the “national interest”

•Eligible if:- holds advanced degree or is of exceptional ability; AND- work is deemed to be in the national interest

•To establish national interest, must show:- employment will be in an area of substantial intrinsic merit;- benefit of alien’s skills will be substantial and national in

scope- national interest would be adversely affected if labor certification

required

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National Interest Waivers con’t…

•Not sufficient to show a shortage of qualified workers ina particular area- Labor certification process is for this purpose

•Must also show an existing record of alien’sachievements/ skills- Cases cannot be approved only on potential of the work

•Employee may self petition•Better chance of success with support from interestedgovernment agency

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Last Stage of PR process

•Show there isn’t a reason the foreign national shouldNOT be a permanent resident such as:- Criminal history, terrorist, Communist, anarchist, bigamist or

polygamist, medical reasons & others•Apply at USCIS office or U.S. consul in Home Country•Can file I-140 & I-485 concurrently if visa numbers areavailable

•Can work and travel with H-1B throughout PR process

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Permanent Residency Costs•Government filing fees

- I-140 $580- Adjustment of Status $1070

•Medical examination, tests and vaccinations- Vary depending on physician and vaccinations required

•Legal fees- Vary based on type of approach

•Advertising costs- In some cases where labor certification is required

•Labor Certification (DOL)- Federal law prohibits employee from paying any labor

certification costs including advertisements

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Impact of Immigrant Visa Retrogression•Complex formula•Immigrant visas limited per preference category andcountry of birth

•Annual allocations plus carryover•Backlog created by USCIS catching up on approvingbacklogged applications for permanent residence afterfiscal years in which applications were filed have passed- Unused visas cannot be used in next fiscal year

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What is a Priority Date?

•“Priority Date” (PD) - place in line for an Immigrant Visa(preference category and the foreign national’s COB)

•Priority Date: filing date of either:- Labor Certification OR- I-140 Immigrant Visa Petition…whichever is earlier

•Can use spouse’s country of birth, children can useparent’s country of birth

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Visa Bulletin

• Visa line “cut off” is determined by the DOS published monthlyVisa Bulletin

• Bulletin is released every month• Backlog for bachelor level positions (EB3) regardless of country ofbirth

• Backlogs for advanced degree holders (EB2) for those born inChina and India

• Backlogs could exist for several years• Increase in visa numbers by Congress is needed

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Employment-Based

AllChargeabilityAreas ExceptThose Listed

CHINA-mainland born INDIA MEXICO PHILIPPINES

1st C C C C C

2nd 01JAN12 15JUL07 01SEP04 01JAN12 01JAN12

3rd 22OCT06 08FEB06 15OCT02 22OCT06 01AUG06

Other Workers 22OCT06 22JUN03 15OCT02 22OCT06 01AUG06

4th C C C C C

Certain ReligiousWorkers U U U U U

5thTargetedEmployment Areas/Regional Centers

C C C C C

5th Pilot Programs U U U U U

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Impact of Visa Retrogression:No I-485 Filing

• Waits could be 3-10 years to file last stage and then wait another6-12 months to complete

• Longer period in LC position• Need to continue to extend H-1B/H-4 status

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Common Issues Created by Visa Backlogs• Does the position require a bachelors or advanced degree?

- Decides whether employee may have to wait 1-2 years or 5-6 years tocomplete process

• Important questions:- position require an advanced degree or a bachelors and 5 years

of progressively responsible experience?- position require exceptional ability?- foreign national possess an advanced degree or bachelors + 5?- foreign national possess exceptional ability?- Can be very important to availability of visa numbers under the

annual PR visa quota

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Common Issues

•Does the position and/or the employee qualify under:- Extraordinary ability?- Outstanding Professor or Researcher?

•2nd preference category backlogs for those born in Indiaand China prompt many to want to try EB1 categories

Questions / Discussion