H-1B Visas: Proving Your Case in 2014
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H-1B Visas: Proving Your Case in 2014

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With changing government rules and requirements, winning an H-1B visa approval is still harder than ever. This webinar offers critical information that employers and their sponsored employees now need ...

With changing government rules and requirements, winning an H-1B visa approval is still harder than ever. This webinar offers critical information that employers and their sponsored employees now need to prove their qualifications for an H-1B visa. Attend this tutorial to help you gather and present the proof necessary for the best chance of approval. Whether you are a sponsoring employer or sponsored employee, now is the time to learn the tips and tools to navigate the H-1B process smoothly.

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  • Hello everyone and welcome to our webinar, H-1B Visas- Proving Your Case in 2013. I’m Ann Massey Badmus with Badmus Law Firm, and I’d like to thank you all for taking the time to attend this presentation, which is intended to give you useful information and tips to help you put together the H-1B puzzle to successfully apply for H-1B visas. Because an employer is the primary applicant for an H-1B visa, we will provide information for the employer’s perspective based upon the trends we are seeing as the government processes and decides H-1B applications.
  • Thank you, Ms. Lopez. Now I’m going to address some of the key problem areas that can arise for some applications. Before I do that, it think it’s important for you to know that the officers who decide immigration applications often have wide latitude to “interpret” immigration rules; and oftentimes, those interpretations are incorrect or extend beyond what the rules really say. That’s one of the reasons we see inconsistencies and changes in the process, where nearly identical applications can be approved and denied depending upon the officer who reviews it. In our opinion, there is little accountability within the government for officers who make errors in their decision-making. But that’s the world we live in and so we are here to inform you of the issues we are seeing and how to address them.
  • The five key issues we are seeing….
  • Specialty occupation – bachelor’s degree or higher in a specific fieldGenerally, it’s easy to prove physicians, teachers, engineers, and lawyers are specialty occupations – that’s actually defined and written in the law. However, any other occupation is open to government interpretation, even those occupations that have been approved as specialty occupations in the past. Occupations are evolving but the government is not always keeping up so you must educate them…Government scrutinizes Particular occupations – business occupations – marketing, financial, administrative positions, IT Occupational Outlook Handbook – not final sourceAlso, smaller businesses are examined more closely – assumption that small businesses don’t need highly qualified people, e.g. rather than accountant, you can use a bookkeeper – audacity to substitute it’s judgment for the business owners
  • Relationship between specialty occupation and other positions – supervisory, who handles other company functions, etc.Services that can provide expert opinions – USCIS does not always defer and can criticize but for occupations that are borderline, it might be worthwhile to pay Professional associations or societies – publications that talk about minimal requirements for entry into the field
  • Establishing the position is half the job – need to show the employee is qualified for the positionsRequire B.S. in accounting or business, then employee needs to have that qualification – Copy of degree, transcript if the degree is not clear as to the field or you need to point to relevant coursework that applies to your positionEmployment experience letters – important if employee does not have degree but can qualify based upon experience – e.g. 3 to 1 rules – associates degree or all experience - engineerCredential evaluation – if no U.S. degree, get this first before starting processIf foreign BS or US master in the field, then no credential evaluation necessary…however if undergraduate foreign is the qualifying degree, then need evaluations; Expert opinion from university to equate experience to degreeLicense – doctors, CPAs, teachers, must be licensed in the state of employment before applying for H-1B – check licensing time and requirements immediately
  • Thorn in the side of many employers – can apply to any employer but really an issue with off-site employment, where the employee where work at a facility not controlled by the sponsoring employer. For example, IT workers, hospitalist physicians, government contract engineers, any time employee will work elsewhere – then must show sponsor is the true employer that has right to control, hire, fire, the employee.Prepared to provide this information for the initial application AND any renewalsPay records – renewals, student to H-1B, etc.
  • Small companies less than 50, perhaps 100Position is specialtyNo authority for this – in fact, case law says the government cannot determine whether position is specialty based upon size nor can it ask for ability to pay salary so getaround is whether employer has valid job offer or sufficient structure to support the physicians (newer)Basically small employer may have to open their files to show such documents – some examples.Organizational charts – detailedCompany history, location (even photos), leases
  • Thorn in the side of many employers – can apply to any employer but really an issue with off-site employment, where the employee where work at a facility not controlled by the sponsoring employer. For example, IT workers, hospitalist physicians, government contract engineers, any time employee will work elsewhere – then must show sponsor is the true employer that has right to control, hire, fire, the employee.Prepared to provide this information for the initial application AND any renewalsPay records – renewals, student to H-1B, etc.
  • Last issue – particular for physicians, researchers – trying to get exempt position to avoid competition for H-1B visas and start any time during the year, rather than October 1Higher Ed- easiest but need to be sure qualifies under department of education rules – for-profit post secondary schools or tech schools that offer two year training might not qualifyNon-profit affiliates – most common, eg. Hospital with teaching program,Look for all affiliations – may have several, make sure currentThird-party – employment at hospitalist group – 51% (majority) of time at higher ed or non-profit affiliate
  • Because of great inconsistency in interpretation of cap-exemption (example – 4 application) and complaints….March 2011 – interim measure (still waiting for final clear cut rule) – if previously exempted, then honor prevous determination and continue to be cap-exempt unless significant change occurred since previous case – e.g.Non-profit to for- profitAffiliations terminatedCap –exempt – review all previous H-1B petitions to determine whether cap exempt due to non-profit, not J-1 waiverGet Copy of at least one – provide updated affiliation agreement or letter confirming continued affiliation
  • Successful – continuing proof – international travel getting visa and USCIS compliance verification process
  • Employee wants to travel or needs to travel Employee coming from outside U.S.Must get visa, except for short term travel to Canada or Mexico, from home country (sometimes Canada or Mexico)Embassies can try to re-visit employee/employee relationship – require company tax returns, lists of employees, state unemployment reports, Delay Administrative processing – months – particularly science/technology/nationals of certain countries like middle east, pakistan, egyptNot much to do but wait – need to prepare businessPetition returns to USCIS – explain, could take yearsUpshot - avoid international travel if possible
  • Office of Fraud Detection and National Security – FDNS – purpose to verify H-1B compliance – employee/employer relationship, working at specified location, pay rates, etc.Random but high probabilty
  • Email slides and slide presentation recordingThank you again, have a great afternoone

H-1B Visas: Proving Your Case in 2014 H-1B Visas: Proving Your Case in 2014 Presentation Transcript

  • Cowles & Thompson January 29, 2014
  • ? • Ask Questions Anytime ? • Use your Q&A pane at the bottom of your screen to type and send your questions. ? • Questions will be answered during the presentation and during the Q & A session.
  • Presenters Angela M. Lopez Ann M. Badmus Thu Nguyen View slide
  • H-1B Visa Overview View slide
  • H-1B Nonimmigrant Visas A nonimmigrant (temporary) visa that allows a non-citizen to be employed in the United States for up to 6 years in a “specialty occupation” for a specific petitioning employer.
  • What is a Specialty Occupation? An occupation that requires highly skilled specialized knowledge and A bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation
  • Employee Qualifications Have completed a U.S. bachelor’s or higher degree (or its foreign equivalent) or Have education, training, or experience in the specialty equivalent to the completion of such degree (3:1 rule) and Possess full state licensure if required to practice in the state of employment
  • H-1B Numerical Limitations Quota of 65,000 new H-1B visas per fiscal year (except Free Trade Act (FTA) nationals) 20,000 per fiscal year for persons who hold US Master’s degrees or higher Applies to first-time H-1B or previously capexempt H-1B employees
  • Fiscal Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 H1B Cap Reached Date October 1, 2003 October 1, 2004 August 10, 2005 May 26, 2006 April 3, 2007 April 7, 2008 December 21, 2009 January 26, 2011 November 22, 2011 June 11, 2012 April 5, 2013
  • H-1B Cap Exemption Employers • Universities/Colleges • Non-profit affiliates of universities/colleges • Government or nonprofit research facilities Employment Physicians • For profit employment at universities or their non-profit affiliated facilities • Physicians who received governmentsponsored J-1 waivers of two year home residency requirement
  • Proving Your Case
  • 1 • Specialty Occupation 2 • Employee Qualifications 3 • Employer-Employee Relationship 4 • Valid Job Offer 5 • H-1B Cap-Exemption
  • Proof of Specialty Occupation Detailed Job Description Daily duties and percentages of time spent on duties Similar positions in the industry or in your business
  • Proof of Specialty Occupation Organizational chart with job descriptions of other positions Expert opinions and reports Professional associations
  • Proof of Employee Qualifications Diplomas and Degrees Employment Experience Letters Credential Evaluation or Expert Opinion Professional License, if applicable
  • Employer- Employee Relationship Employment Contract/Offer Letter Employee Manual/Benefits Summary Performance Review Client Contracts/Work Orders Pay Records/W-2/Work Schedule
  • Proving Valid Job Offer and Position Federal Tax Returns Unemployment Tax Reports Organizational Charts Payroll Records Company History
  • H-1B for the Self-Employed Employer-Employee Relationship Company Structure – Corporation/LLC Board of Directors - hire, fire, or otherwise control owner Specialty occupation applies
  • Proving H-1B Cap-Exemption Higher Ed Non-Profit & Affiliated w/Higher Ed Third-Party Employment Public or Nonprofit 501(c)(3) exemption letter Agreement with Higher Ed or Non-Profit Affiliate Org Associate degree or higher Agreement with Higher Ed, e.g. Clinical Training Supporting Letter from Exempt Facility Proof of Accreditation Supporting letter from Higher Ed Educational or non-profit purpose
  • Proving H-1B Cap-Exemption As of March 2011, USCIS will defer to previous determinations of cap exemption if employer provides: A copy of the previously approved cap-exempt petition (relevant pages of the Form I-129 and pertinent supplements); A copy of the Form I-797 approval notice (issued after June 6, 2006) for the affiliation-based cap exempt petition; or Documentation previously submitted with a petition in support of the claimed cap exemption.
  • Post-Approval Alerts
  • International Travel Visa Processing at U.S. Embassy (www.usembassy.gov) Administrative Processing Delays Petition Returns
  • USCIS Compliance Review Random Selection Unannounced Employer Site Visit Email Demands for Documents Internet Discussion Boards
  • Preparing for a USCIS Site Visit Step 1 • Review the H-1B petition Step 2 • Prepare compliance evidence file for inspector Step 3 • Identify company representatives who will meet with auditors Step 4 • Establish site visit procedures for reception, clients, and H-1B employee Take these steps immediately after the approval of your H-1B petition to prepare for a surprise site visit from the USCIS.
  • Negative Information Denial of Pending Petition Review Previously Approved Petition • Additional Proof • Further Inspection Revocation of Previously Approved Petition • Criminal Penalties • Civil Fines
  • Questions? Comments? Cowles & Thompson 901 Main Street, Suite 3900 Dallas, Texas 75202 214-672-2000 Telephone 214-672-2020 Facsimile immigration@cowlesthompson.com www.cowlesthompson.com
  • Legal Notice • Facts of individual situations differ. • The information provided here is general in nature and should not be relied upon for specific situations. • Consult with an experienced immigration attorney to ensure compliance
  • You are invited to contact us for your immigration matters 901 Main Street, Suite 3900 Dallas, Texas 75202 214-672-2000 Telephone 214-672-2020 Facsimile immigration@cowlesthompson.co m www.cowlesthompson.com www.badmuslaw.com