Immigration Basics: What Strategic HR Professionals Should Know


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A presentation from David Wolfe Leopold about Immigration basics and practical steps towards hiring international talent

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Immigration Basics: What Strategic HR Professionals Should Know

  1. 1. Cleveland SHRMImmigration Basics: What Strategic HRProfessionals Should Know
  2. 2. Optional Practical Training What is OPT?  12 months post graduation; no H1B required Post Completion of University  DSO endorses I-20  Student files I-765  Student works after approval of I-765 2
  3. 3. Optional Practical Training Certain students can receive 17 month extension beyond their 12 month OPT = 29 months F-1 Students who  Receive STEM degrees included on STEM designated Degree Program List  Employed by E-verify enrolled users 3
  4. 4. H-1B 4
  5. 5. H-1 BOption for filing: Legal expertise is required? Contact an immigration attorney 5
  6. 6. H-1B Specialty Occupation  Theoretical and practical application of body of highly specialized knowledge  MBA, Engineers, Researchers, Accountants, Computer Techs, other professional positions  3 year periods of stay  6 year maximum 6
  7. 7. Legal Requirements: What do Employersneed to do? Preparing the petition  Job description  Resume and degrees  Labor Condition Application  Prevailing/actual wage  Public file 7
  8. 8. LCA Requirement Employer attests to four (4) Labor Condition Statements:  Wages  higher of the actual wage or the prevailing wage  pay the fee the required wage for time in nonproductive status  Ee offered benefits and eligibility for benefits on the same basis as U.S. workers  Working Conditions  No adverse effect  EE afforded working conditions on the same basis as similarly employed U.S. workers  Strike, Lockout, or Work Stoppage  No strike, lockout, or work stoppage in the course of a labor dispute on the day the LCA is signed and submitted  If strike, lockout, or work stoppage occurs after the application is submitted, employer will notify the DOL within three (3) days and LCA will not be used in support of H-1B until DOL determines that the strike, lockout or work stoppage has ceased. 8
  9. 9. LCA Requirement Notice  Notice of LCA has been provided to workers employed in the named occupation.  Notice provided either through  physical posting for 10 consecutive business days in a least two (2) locations where H-1B ee will work or  electronic notification  notice must commence prior to filing the LCA with the DOL 9
  10. 10. Public File Certified LCA and Cover Pages Wage Rate Statement Actual Wage  payroll records need not be maintained in the public file, but must be retained and made available to the DOL upon request 10
  11. 11. Public File Prevailing Wage Determination Posted LCA Notices Acknowledgment of Receipt of LCA Benefits Summary 11
  12. 12. Extension of Stay Has ee reached the maximum of 6 years Include all period in H-1B classification, including periods before employment with new employer Once 6 years reached, ee must spend 1 year abroad before s/he is eligible for H-1B classification, unless the company has applied for the employee’s green card 12
  13. 13. Recapture of H-1B Time Time spent outside the U.S. does not count toward the 6 year limit on stay Time spent abroad may be for any purpose (i.e. personal or professional) Time spent abroad may be “recaptured” later to extend the stay in H-1B classification. 13
  14. 14. Extensions Beyond 6 Years Individuals not subject to 6 year limit if:  Work in US on intermittent basis for less than 6 months per year  Commute to U.S. and work in U.S. on intermittent basis 14
  15. 15. Extensions Beyond 6 Years—AC21 Two situations  Immigrant visa category is backlogged and Approved I-140 immigrant petition  3 year extension available  More than 1 extension permitted  365 days or more have passed since the filing of a labor certification or I-140 immigrant petition  1 year extension available  More than 1 extension permitted  If LC or Immigrant Petition denied or invalidated, no extension 15
  16. 16. H-1B Portability H-1B employee may begin employment for a new employer upon the filing of a petition  Requires:  H-1B status  Lawful admittance  Engagement solely in authorized employment  Non frivolous petition 16
  17. 17. Green Card 17
  18. 18. Green Card How do you know that the Green Card is authentic? 18
  19. 19. The Green Card Process: 3 BasicSteps Labor Certification I-140 Immigrant Visa Petition I-485 Application to Adjust Status 19
  20. 20. Labor Certification Not sufficient US workers who are Able Willing Qualified and Available And 20
  21. 21. Labor Certification Employment of alien will not adversely affect the wages and working conditions of workers similarly employed 21
  22. 22. The Labor Certification Process Application submitted to US Department of Labor  Minimum requirements listed by ee  Prevailing wage 22
  23. 23. Final Steps I-140 Immigrant Petition I-485 Adjustment of Status (Green Card Application) 23