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
• No other immigration options
• Very few other nonimmigrant visas
granting authorization to work
• Obtaining legal permanent residency is
usually a long process
The H-1B Visa
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.
General Requirements
General Requirements
Specialty Occupation
• Generally, the position must require
at least a bachelor’s degree in a particular
field related to the position.
Cont. Specialty Occupation
• Examples:
• Engineer
• Computer scientist
• Physician
• Professor
• Accountant
• Teacher
General Requirements
Cont. Specialty Occupation
• The alien must have at least a
bachelor’s degree in the related field or:
(1) the foreign academic equivalent;
(2) equivalent work experience; or
(3) a combination of both.
Prevailing Wage for the H-1B
• The employer must pay at least
the prevailing wage.
• 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.
General Requirements
No Benching Allowed
• The employer must pay the beneficiary
alien when nonproductive, with limited
exceptions.
Processing Procedures
Processing Procedures
Changing Status from F-1 to H-1B
• An F-1 alien can change status to H-1B,
which means that 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.
Changing Status from F-1 to H-1B
The H-1B Cap on Visa Numbers
• 65,000 H-1B visas are available each
fiscal year and 20,000 additional
numbers are available for those with a
master’s degree or higher from a U.S.
institution.
Cont. H-1B Cap
• The earliest an employer can file an H1B petition is April 1st of each year.
• The earliest start date that can be
requested is October 1st of that same
year.
Fiscal Year 2008 H-1B Cap
Reached
• The H-1B cap for bachelor’s degree
petitions for fiscal year 2008 has been
reached. Since the petitions received
exceeded the visa numbers, the
petitions were subject to a lottery.
• USCIS returned those petitions that did
not receive a number.
Changing Status from F-1 to H-1B
Petitions Exempt from the H-1B
Cap
• Certain employers and petitions
are not subject to the visa cap.
These include…
Changing Status from F-1 to H-1B
Cont. Cap Exemption
• Any alien counted against the cap
within the past six years, unless the
alien would be eligible for a new full
six years of H-1B status:
• out of the country for a year;
• seasonal & intermittent worker; or
• in the US less than six months per
year
Changing Status from F-1 to H-1B
Cont. Cap Exemption
• J-1 who has obtained a waiver
through the State 30 program
• Beneficiaries of employment offers
at institutions of higher education or
related or affiliated nonprofit entities
• 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 capexempt institution previously
• Extensions of H-1B status
Filing Fees and Attorney Fees
• The employer must pay an ACWIA fee
of $1,500 (for 25 or more workers)/$750
(fewer workers)
• The employer may not request
reimbursement from the employee.
ACWIA Filing Fee Exemptions
• This fee is waived for certain employers
and situations, including…
Cont. ACWIA Filing Fee
Exemptions
• Institutions of higher education and
affiliated nonprofit entities
• Nonprofit and governmental research
organizations
• Second H-1B extension requests
• Amended petitions with no extension
• Primary or secondary institutions
Fraud Filing Fee
• The employer should pay the $500
fraud fee for new petitions and change
of employer petitions (unclear whether
the employee can pay it in certain
situations).
Changing Status from F-1 to H-1B
Other H-1B Filing Fees
• The base fee of $320 can be paid by
the employer or employee.
• The premium processing fee of $1,000
can also be paid by either party.
Changing Status from F-1 to H-1B
Who Can Pay Attorneys Fees
• The employee is not allowed to pay
the attorney’s fee.
• A third party could pay these fees.
• Public school H-1Bs face challenges
here.
Changing Status from F-1 to H-1B
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
Processing via Change of
Status
• An F-1 student can change status and
remain in the US after the petition is
approved and before the visa number
becomes available (October 1st) only if
the student’s F-1 status, including the
60-day grace period expires after the
requested start date of October 1st.
• No gap in status is allowed to change
status.
Example of Changing Status
from F-1 to H-1B
• F-1 student’s optional practical training
is expiring on August 30, 2008. The
student would be able to change status
to H-1B and remain in the US, since her
60-day grace period would fall after
October 1, 2008.
• If the F-1’s OPT is expiring on July 15th,
then she must consular process.
Ways to Avoid Gap in Status &
Change Status in US
• Graduate in the winter so that optional
practical training expires in the winter
and well after the October 1st visa
number availability.
• Change to another nonimmigrant status
for the period between the expiration of
the F-1 and the start of the H-1B in
October.
Consular Processing
for an H-1B Visa
• If an F-1 student cannot change status in
the U.S., then the student must obtain an
H-1B visa at a U.S. consulate abroad
before working in H-1B status
When Consular Processing is
Required
• USCIS makes a formal finding of a
status violation against the F-1 student
• A status violation can include:
• A gap in status
• Working without authorization
• Not maintaining a full courseload
Change of Status Versus
Consular Processing
• In both cases, H-1B status is granted to
the alien.
• The only difference between change of
status and consular processing is the
process for obtaining H-1B status.
Consular Processing for an H-1B Visa
Obtaining A New H-1B Visa
Abroad
• If the F-1 alien originally changed status
to H-1B in the U.S., then the alien must
obtain a new H-1B visa before reentering the U.S. after a trip abroad.
• Exception: Travel to Mexico or Canada
for less than 30 days
Post-filing Issues
Post-filing Issues
Admission and Extension
• An alien can obtain H-1B status for up to
three years at a time and for a maximum
of six years.
• The extension petition must be filed
where the alien is still in H-1B status,
unless USCIS forgives a gap in status.
Exceptions to the Six-Year
Period
• The alien may seek H-1B status
indefinitely beyond the six year period
under the following situations…
Post-filing Issues
1) A labor certification or Form I-140
immigrant visa petition was filed at least
one year before the end of the six-year
period in H-1B status
2) The Form 140 is approved and
a visa number for legal permanent
residency is unavailable
Portability
• Where an H-1B worker is changing H1B employers, the employee can
commence employment with the new
H-1B petitioning employer upon the
filing of an H-1B petition.
Filing for Legal
Permanent Residency
Filing for Legal Permanent Residency
• 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
• The alien can obtain universal
employment authorization after filing
for adjustment of status to legal
permanent residency.
Legal Permanent
Residency
Legal Permanent Residency
Definition
• Ability to live and work permanently
in the US
• Can be acquired through employment
and family sponsorship as well as
through several other routes
Employment-based Legal
Permanent Residency
Employment-based Legal Permanent Residency
• An alien being sponsored for legal
permanent residency through
employment requires a certified labor
certification application, with certain
exceptions for special immigrant visa
petitions.
Special Visa Petitions
•The immigrant visa petition is filed
with USCIS without the need for
a labor certification.
Special Visa Petitions
Cont. Special Visa Petitions
• Extraordinary ability (EB-1)
• Outstanding researcher or professor
(EB-1)
• Multinational executive or manager
(EB-1)
• National Interest Waiver (EB-2)—
requires advanced (master’s) degree
• Investor
Special Visa Petitions
Cont. Special Visa Petitions
• Schedule A professional nurses
and physical therapists
• May have multiple immigrant visa
petitions pending simultaneously,
including one based on a labor
certification and a special immigrant
visa petition
First Stage of the
Employment-based Case:
PERM Labor Certification
Employment-based Legal Permanent Residency
PERM Labor Certification
• The Department of Labor must certify:
• There are not sufficient workers that
are able, available, qualified and
willing to fill the position; and
• The alien’s employment will not
adversely affect the wages and
working conditions of US workers
Employment-based Legal Permanent Residency
Cont. PERM Requirements
• Designed to protect US workers
• Requires advertising and other forms of
recruitment by employers to test the US
labor market.
Labor Certification
Cont. PERM Requirements
• Advertising: Test of the labor market to
determine if there are any able,
available, willing and qualified
US workers (includes US citizens,
legal permanent residents, asylees
and refugees)
Labor Certification
Cont. PERM Requirements
• Bona fide job offer (no self-employment
or business ownership)
• Full-time, permanent position
• Offered wage must be at least as high
as the prevailing wage
Labor Certification
Cont. PERM Requirements
• The employer must state the actual
minimum requirements of the job
(not its preferences or requirements
that are neatly tailored to fit the alien’s
background and qualifications)
• Must have acquired the requirements
before starting (exceptions)
Labor Certification
Prospective Offer of
Employment
• Alien need not be working for the
employer at the time the labor
certification is filed
• Alien must report to work at the time the
legal permanent residency is approved
Labor Certification
Online Filing
• PERM labor certification application is
filed online after the requisite
recruitment
• Documentation of recruitment provided
only if audited
• Maintain “audit” file, including tear
sheets, notices of posting and
recruitment report
Audits under PERM
• Audit of some cases
• Arbitrary or
• Based on factors heightening
suspicion of a bona fide job offer
• Familial relationship
• Ownership interest
• Control or influence
Labor Certification
Nationwide Backlog Centers for
Older Labor Certifications
• Nationwide backlog elimination centers
are processing cases filed before
PERM. There is no specific time frame
to eliminate the backlog and it could be
quite lengthy.
Second Stage: Immigrant
Visa Petition (Form I-140)
Immigrant Visa Petition (Form I-140)
Form I-140 Requirements
• Employer must show ability to pay at
the time the labor certification is filed.
• Ability to pay documentation:
• Employer’s tax returns
• Annual report or letter from CFO of
company
• Employees Forms W-2 and pay slips
• Miscellaneous (bank statements)
Immigrant Visa Petition (Form I-140)
Cont. Form I-140 Requirements
• Alien submits documents relating
to the job’s minimum requirements
• Education
• Experience (employment letters)
• Licensure
• Training
Second or Third Stage:
Adjustment of Status
(AOS)
Adjustment of Status (AOS)
Adjustment of Status
• AOS allows an individual to remain in
the US and change from a
nonimmigrant to a legal permanent
resident
• May file AOS concurrently with the
immigrant visa petition if a visa number
is available
• Otherwise, file AOS after the I-140 has
been filed and/or approved
Visa Number Availability
• Each year 140,000 employment-based
visas (or green cards) are allotted to
foreigners seeking legal permanent
residence based on employment in the
U.S.
• These visas are distributed across 5
preference categories based on
credentials.
Cont. Visa Number Availability
• The visas are evenly distributed among
all countries with a quota set for each.
• Backlogs for individuals from highdemand countries result even when the
overall cap is not reached. Once the
quota is met, then only those who
applied before a set cut-off date may
get visas.
Cont. Visa Number Availability
• The priority date is the date either the
labor certification or the immigrant visa
petition visa petition (where no labor
certification is required) is filed. It is this
date that determines the foreigner’s
place in line for a visa number and this
date is compared to the cut-off date for
the foreigner’s employment-based
immigrant visa preference category.
Cont. Visa Number Availability
• If the quota has been reached for the
foreigner’s preference category, then a
visa number will be available only when
the priority date is later than the cut-off
date.
Cont. Visa Number Availability
• Visa number availability can found on
the U.S. Department of State’s Visa
Bulletin, which is issued monthly.
• It is available online at:
http://travel.state.gov/visa/frvi/bulletin/b
ulletin_3169.html
Preference Categories for
Immigrant Visas
EB-1: 1st Preference Priority
Workers
• Persons of extraordinary ability
• Outstanding researchers and
professors
• Multinational executives and managers
EB-2: Second Preference
• Members of the profession holding
advanced degrees (including National
Interest Waivers)
• Aliens of exceptional ability
EB-3: Professionals, Skilled &
Other Workers
• Skilled workers (position requires two
years of experience and the alien
possesses such experience)
• Professionals (requiring a bachelor’s
degree)
• Other workers
Benefits of Adjustment of
Status
• Confers authorized status in the U.S. so
that nonimmigrant H-1B status need no
longer be maintained, although there
are benefits to maintaining H-1B status.
Adjustment of Status (AOS)
Cont. Benefits of Adjustment
• Obtain employment authorization and
travel permission while the application
is pending (including spouse and
children)
• No consular processing for AOS
Adjustment of Status (AOS)
Cont. Benefits of Adjustment
• Avoid three and ten year bars to reentry (if the alien is subject to the 3/10
year bars to admission then she cannot
leave the U.S. without incurring this
bar)
Adjustment of Status (AOS)
485 Portability
• Can switch employers without restarting
a new PERM case
• The I-140 immigrant visa petition must
have been approvable when filed
• The I-485 must have been pending 180
days
• The original job and new job are
substantially similar
Adjustment of Status (AOS)
Eligibility to Adjust Status
• Maintain continuous authorized
status in the US (no working
without authorization, overstaying
or otherwise violating the terms
of your nonimmigrant status)
Adjustment of Status (AOS)
Exceptions
• 245(i) (petition or labor certification filed
before 4/30/01 and physically present in
the US if filed after 1/98)
• 245(k) (alien did not violate terms of
status for more than six months since
alien’s most lawful entry)
Consular Processing
Consular Processing
• Must continue to maintain
nonimmigrant status
• Cannot obtain employment authorization
or travel documentation
• Usually faster than AOS to obtain
legal permanent residence
• Requires an interview at the US Embassy
abroad
Family-based
Family-based
• US citizen sponsors spouse, parent,
child, married or unmarried son or
daughter or sibling (stepchildren—
relationship formed before 18)
• Legal permanent resident sponsors
spouse, children and unmarried sons
and daughters
Family-based
• Derivatives may accompany the
primary beneficiary (except for
immediate relatives)
• Affidavit of Support (Form I-864)
required to be filed by family sponsor
• May obtain legal permanent residency
through adjustment of status or
consular processing
Family-based
• Immediate relatives may file for
adjustment of status immediately.
Other preference categories may not
apply for AOS/CP but must wait until
visa number becomes available
(priority date becomes current)
Other Sources
of Legal Permanent
Residency
Other Sources of Legal Permanent Residency
• Family Sponsorship
• Diversity Visa Lottery
(only certain countries are eligible)
• Asylum (must wait one year from the anniversary
of the asylum approval and have physically
resided in the US during this year)
• Cancellation of Removal
• NACARA
• HRIFA
Naturalization
Naturalization
• Waiting period (5 years of LPR, 3 years
of LPR for those who gained their LPR through
marriage; be careful not to abandon LPR)
• Voting
• Sponsor Family Members
• Government Jobs
• US Embassy Protection Abroad
• Tax Benefits
• Financial Aid
Expert Legal Representation and Counseling in All
Areas of Immigration Law.
• Employment-based
Immigration
• Family-based
Immigration
• Nonimmigrant Visas
• Asylum
• Nicaraguan Adjustment
and Central American
Relief Act
• Diversity Visa Lottery
• Other Forms
of Relief