H-1B s and Beyond Leavy, Frank & Delaney, LLC 3 Bethesda metro Center, Suite 505 Bethesda, Maryland 20814 301.656.2102 (P) 301.656.4728 (F) www.leavyfrank.com adam.frank@leavyfrank.com brendan.delaney@leavyfrank.com
What We Will Cover H-1Bs including compliance issues O-1A TN E-3
What Is an H-1B? A non-immigrant visa that allows a specific person to perform specific work in a specialty occupation (min. of a bachelors degree) for the employer that sponsored them at a specific location for a specific period under terms of LCA
Non-Immigrant Visa I-129 Form, plus H Supplement plus Data Collection Supplement Department of Homeland Security U.S. Citizenship and Immigration Services START HERE - Type or print in black ink. Part 1. Petitioner Information (If the employer is an individual, complete Number 1; Organizations complete Number 2.) Use the mailing address of the petitioner. 1. Legal Name of Employer: a. Last Name (Family Name) b. First Name (Given Name) c. Full Middle Name 2. Company or Organization: Name of Company or Organization OMB No. 1615-0009; Expires 10/31/2013 I-129, Petition for a Nonimmigrant Worker Receipt Also need signed/ certified LCA Fees: $325 application, $500 fraud prevention, $750/$1500 ACWIA 3. Mailing Address: a. C/O: (In Care Of, if any) b. Street Number and Name d. City e. State/Province f. Country g. Zip/Postal Code h. Telephone Number (include area code) (Do not leave spaces or type any special characters) i. E-Mail Address j. Federal Employer Identification Number k. Individual Tax Number l. Social Security Number c. Suite/Apt. Number Partial Approval (explain) Action Block Class: # of Workers: Job Code: Validity Dates: From: To: Classification Approved Consulate/POE/PFI Notified At Extension Granted COS/Extension Granted Form I-129 (10/07/11) Y
Non-Immigrant Visa 65,000 per year plus 20,000 masters Cap Gap Cap-Exempt Organization
Specific Period 6 years maximum for H-1B H-4 time not included Extending beyond 6 year Maximum Reclaimed time Extended Process extension Backlog extension
Specific Work for Specified Employer in Specified Location Can ONLY work for employer noted in LCA at location(s) listed in LCA in the capacity listed in the LCA
Specified Employer Is an Award salary? NO Is an Honorarium Salary? YES
Specified Work Duties Listed in LCA What if job title changes but duties stay the same? DEPENDS What if job duties change? DEPENDS What if Salary Changes? DEPENDS
Specified location Location or Locations listed in LCA What if location changes? DEPENDS
Terms Specified on LCA Pay required wage - actual or prevailing wage Provide (offer) same benefits and working condition offered to similarly situated employees Only deduct legally allowable items from pay Post a copy of the LCA for 10 days in office and provide a copy of LCA to employee
Public Folder Employee Folder Signed, certified LCA Description of actual wage calculation Summary of Benefits offered to US workers Copy of posted LCA Additional documents for willful violators and dependent employers Signed, certified LCA Copy of posted LCA and proof presented to Employee Copy of All documents given to employee re: benefits as well as those offered and accepted by other employees Documentation on working conditions Payroll records for similarly situated employees and all docs to compute actual wage (and prevailing wage request) Additional documents for willful violators and dependent employers
Alternatives to the H-1B
Why needed? Moving from cap-exempt H-1B to cap subject H-1B Moving from F to cap subject H-1B Used all 6 years of H-1b 2 year home residency requirement
Alternatives O-1A and O-1b TN E-3 Are others (E-1/2, L, B-1 in lieu of H-1B, etc.)
O-1A Non-immigrant visa that allows those with extraordinary ability to work in US for specified Employer
Nonimmigrant Visa No cap No LCA No prevailing Wage No requirement as to who pays fees Initial O for 3 years, renewals for 1year increments Dual Intent and can get even if have 2 year home residency requirement
Extraordinary Ability Sustained National or International Acclaim In the Top of the field Need to pay special attention to language of criteria - different than Green Card EA application
To Kazarian Or Not To Kazarian AFM - cannot make a favorable determination simply because the petitioner has submitted three of the forms of documentation It must be a decision based on whether the total evidence submitted establishes that the alien of extraordinary ability has sustained national or international acclaim. AAO - one decision reversed based upon Kazarian USCIS - Policy memo ONLY applies to I-140, and has not explicitly extended to O-1 context
3 of 8 Categories
All Evidence Together Show Sustained National or International Acclaim Not just Proof of What Person has accomplished, but Proof of Importance and Impact of Work Objective Evidence - Extremely Important
TN Visa Nonimmigrant visa that allows Canadians and Mexicans in certain professions to work temporarily in the US for a specified employer in a specified position
Requirements Must be on List of professions in Statute Must have letter of employment specifying position and duties that match profession on list Be aware that Officer will make final determination as to what actual position is and requires Foreigner must meet requirements for entry into position listed on List Can only work for sponsoring employer
Benefits Good for 3 years, can be renewed in 3 year increments No LCA, prevailing wage, ACWIA or Fraud fees No USCIS petition needed - However, Canadians can now file with USCIS and may be treated as pre-approval No maximum period of time No Cap
E-3 Visa Nonimmigrant Visa to allow Australians and Singaporeans to work in specialty occupations in the US for a specified employer for a specified time
Is it an H-1B or Not? Requires LCA No ACWIA or Fraud Fee No 6 year maximum (2 year initial, 2 year extensions) 10,500 Cap If not in the US, no I-129 needed Spouses can get work authorization
Process for E-3 File LCA Collect Documents Make Appointment If in US, then file for Change of Status with I-129 form
Consular Issues
What Is Needed Employee needs to be prepared, especially with unique situations (3rd party placement, etc.) Copy of petition always good to have Current letter of employment Recent Paystubs
Potential Issues 214(b) - (With TN ONLY) - insufficient ties to home country - Admin. Processing Background Checks Payment of Wages LCA (usually only if level 1 with no Prevailing Wage Request)
Thank you! Leavy, Frank & Delaney, LLC 3 Bethesda Metro Center, Suite 505 Bethesda, Maryland 20814 301.656.2102 (P) 301-656-4728 (F) www.leavyfrank.com adam.frank@leavyfrank.com brendan.delaney@leavyfrank.com