It is commonly used by international students, who are first given a one year period of optional practical training (OPT), if an F student, or 18 months academic training (AT) if a J (exchange visitor) student.
Ideally the OPT or AT should segue seamlessly into the work visa.
Exempt from the quota are persons already counted against it in H status, as well as persons who work in higher ed and affiliated entities, non profit research and government research organizations, and physicians granted a waiver of the two year home residence requirement for J’s. Note that most govt. entities and non profits are NOT exempt from quotas.
Li Li’s F 1 OPT began May 15, 2006 and ends May 14, 2007. She finds a suitable job and the company petitions for her H1B on April 1, 2007. Since the FY 07 (10/1/06 to 9/30/07) for US Master’s recipients ran out on 7/25/06, her employer asks for a visa number from the new FY 08 quota for work beginning 10/1/07.
Included in comprehensive immigration legislation which has passed the Senate is a provision to recapture 30K H1B numbers from each year beginning in 1991.
Fees would increase for such recaptured numbers.
House has not yet passed such a measure because of opposition to legalizing undocumented workers. H provision may pass as stand-alone bill some time in the spring.
Pitfalls: Make Sure the Position Requires a Degree, Pays PW, Really Exists
Many beginning positions in business do not require a degree: eg, sales, management trainee slots.
Many entry level jobs pay partly or solely on commission. Commission or sales bonuses generally cannot be included in the wage computation.
Beware of “make work” or make believe jobs from friends or relatives. Pay stubs, W 2’s will be required when you go abroad for visa issuance, apply for future immigration benefits!
Also beware of fly-by-night consulting companies which may “bench” you until they place you in a job.
Analysis: Does Job Require a Four Year Degree?
Does the job require the application of theoretical and practical knowledge typically acquired in a relevant four year degree program?
Has the employer consistently required a minimum of a Bachelor’s in particular major(s) for position? Or is the requirement simply an employer preference? Or is the employer simply making up the requirement to get you an H1B?
What are industry standards for this type of job? Check ads on internet, DOL’s Occupational Outlook Handbook .
Is the salary commensurate with a professional-level position?
Example 1: Jo ᾶ o is offered a management trainee position at Hometown Bank. He is told by the HR Director that for 18 months, he will cycle through all departments of the bank, and at the successful completion of this period, will become a Mortgage Loan Analyst, at a salary of 60K. During the training period, he will only be paid 25K. Ms. HR says that all prior trainees have possessed an MBA.
Emine is offered a “Sales Associate” position at Needless Markup department store. Her salary will be 20K. She is told that sales associates are often promoted from within, and that with her academic background (MBA, BS in Fashion Merchandising), she could soon rise to Buyer or even Sales Manager.
Arvind has an MBA and BSME. He is offered a job as “Technical Sales Associate” by a company which manufactures elevators. He is to sell to international customers, as well as to assist them with after sale technical questions regarding the company’s products. His salary will be 40K. He is told that eventually he could rise to Regional Sales Manager or Technical Sales Manager.
Does this offer hold H1B possibilities for Arvind?
Georgi has a wealthy friend who wants to open a Cesare Paciotti shoe store franchise on Madison Avenue in New York.
He has known Georgi for several years and is the only one he trusts to run the store. With shoes retailing from $400 to over $1000, the friend wants the highest possible level of service for customers.
Georgi will have a build out budget of $1 million; 20 full and part time employees, inventory worth $1.5 million, and an annual turnover of $5 million.
Georgi will manage personnel, devise marketing campaigns, manage inventory, prepare financial projections, and oversee the entire operation. His salary will start at 80K.
H1B for Georgi?
Pitfall: Checking Out the “Buyer”, ie, the Employer Seeking Your Services
Before the interview: Research the company. If officers or other employees are listed in literature or on website, see if there are obvious immigrants among high ranking personnel.
Try to identify, beforehand if possible, who will be conducting your interview and his/her function in company.
If the interviewer is recruiter/HR, try to find out who you’d actually be working for or who runs the office/division where the opening exists.
In this way, if you are rebuffed, you may be able to contact the manager directly, or use networking to do so, to try to overcome the interviewer’s objections to hiring you. This is particularly the case if told “We don’t sponsor for work visas.”
Employer thinks the process “will get them in trouble with immigration” (not unless they have otherwise shady practices or lie in the paperwork).
Employer doesn’t want to reveal financial information to USCIS (IRS has already reviewed this information; USCIS not a tax enforcement agency; neither you nor attorney need see information; can be provided in sealed envelope).
Employer thinks they have to pay legal fees (not unless this would push employee below required wage).
Employer worries that sponsorship may constitute contract of employment (no, but if they’re worried, do a memo of understanding both sign).
Employer worries that employee is later going to ask for PR and leave the company –they’ve been burned before (Sign a “one way” contract; employee has to repay legal fees if leaves before a certain date; but employer retains right to “employ at will”).
TN (Treaty NAFTA) for citizens of Canada and Mexico only. Occupations listed at 8 Code of Federal Regulations Sec. 214.6(c) generally require a minimum of Bachelor’s degree. But MBA’s beware: “Management Consultant” is carefully scrutinized; generally must be independent contractor. TN given in one year increments; requires residence abroad (no dual intent).
There are many other nonimmigrant visa classifications, some of which may be appropriate to recent graduates in rare situations. These should be explored with an experienced immigration attorney.
If your employer does not have an immigration attorney, choose with care!
The Coveted H1B: Convincing the Employer to Sponsor Presented by: David A.M. Ware, attorney at law www.david-ware.com . [email_address] 800 537 0179 Offices Across the Gulf South: National Practice