What happens after your OPT expires? What options do you have to continue to work in the U.S? Many employers avoid hiring international students because they don’t know enough about your immigration options. It is important that you know your options and their impact on the employer so you can help them understand that, with proper planning, the road to H1B and beyond is not as difficult as they may have found.

1. The H-1B and Beyond
GTRI Conference
February 6, 2015
Susan S. Im

2. • Offer of employment from US employer to FN of a position that
qualifies as a “specialty occupation”
• FN must possess Bachelor’s degree or equivalent in a relevant
field
• H-1B is employer specific; can hold multiple H-1Bs
• Offered salary must meet Prevailing Wage requirements of DOL
and must obtain certified Labor Condition Application (LCA)
• Required gov’t fees ($325, $750 or $1,500, and $500) outside of
attorney fee and who must pay fees
H-1B Requirements

3. What is the H-1B Cap?
• There is an annual limit of 65,000 H-1B visas
• 20,000 additional H-1B visas for U.S. advanced degree
holders
• USCIS has run out of visa numbers every fiscal year

4. • Higher Education Institutions
• Nonprofit organizations “affiliated with” or “related to”
Higher Education Institutions
• Nonprofit Research and Governmental Research Institutions
• Certain for-profit organizations that employ H-1Bs who will perform all or most
of their duties on site at a qualifying organization listed above
Can Employers Avoid the Cap?

5. • Those approved for H-1B status in the past 6 years, counted
against the cap, and who have not left the U.S. for 1 year or
more
• Those working for cap-exempt org. but seeking to work for
cap-subject employer concurrently
• Certain J-1 physicians who have obtained waiver of home
residence requirement
Which Employees are Cap-Exempt?

6. • Maximum of Six Years
– 2 three-year increments
– Three years is the maximum for which an employer can
petition at a time
• How do you get beyond the Six-Year Maximum?
– One-year extensions under AC-21
– Three-year extensions under AC-21
– Recapturing time spent abroad
What is the duration of the H-1B
status?

7. • USCIS Service Centers can take 60+ days to process petition
from the date of filing
• Processing time increases if USCIS issues a Request For
Evidence (RFE)
• Ability to premium process a case (additional $1,225 fee)
• PPS does not help you get selected in the lottery!
H-1B Processing Times

8. • Spouses and children under the age of 21 of the H-1B worker
can obtain H-4 dependent status
• Can study in the US on a full or part-time basis
• Cannot work on H-4 status yet
• Proposed USCIS rule for limited H-4 employment authorization
Dependent family members: H-4

9. • Cap Gap Rule: Who is covered?
• Requires “change of status” option to be checked on I-129
form
• Obtain proper annotation of I-20 form from your designated
school official (DSO)
• What if my OPT is expired as of April 1?
H-1B Cap Gap Rule for F-1s

10. • Maximize practical training options of CPT, OPT and
STEM OPT and try again the following year
• Consult immigration counsel on other potential
options (E-2, O-1, TN, H-1B1, E-3, EADs through
labor cert-exempt green card filing, EB-5, J-1 and
H-3 if focus is primarily training)
What if I can’t find an H-1B
sponsor?

11. • Most but not all categories require an employer sponsor for
full-time employment
• Numerical limits and country quotas
• Country quotas for China, India, Mexico and Philippines
• Start green card process early in the H-1B tenure!
• FNs must maintain their temporary visa status while waiting for
green card to be approved unless they are outside the US
Moving to Green Card: Employment-
based (EB) Immigrant Visas

12. • EB-1 Extraordinary Ability Aliens, Outstanding Professors and
Researchers, and Multinational Transferred Managers and
Executives (40,000)
• EB-2 Exceptional Ability Aliens, Advanced Degree
Professionals, and National Interest Waivers (40,000)
• EB-3 Professionals (bachelor’s degree), Schedule A RNs and
PTs (unless M or B+5), and Skilled Workers (40,000)
• EB-4 Violence against Women Act (VAWA) and Permanent
Religious Workers (10,000)
• EB-5 Immigrant Investors (10,000)
EB Immigrant Visa Categories

13. • Most professionals require a PERM labor certification
application to be approved by Dept. of Labor (DOL) in order to
obtain green card status
• PERM labor certification is the process in which an employer
tests the job market by advertising the offered position to see if
any qualified and willing U.S. workers are available
• PERM also requires employers to pay 100% of the prevailing
wage for the position by the time the FN is approved for green
card status
PERM Labor Certification

14. Skip DOL and go straight to USCIS with immigrant petition
(I-140; or I-360 for EB-4 and I-526 for EB-5)
• EB-1
• Certain EB-2 workers (NIW and Schedule A Group II)
• EB-4
• EB-5
The Lucky Ones: Exempt from
PERM Labor Certification!

15. • The I-140 immigrant petition follows PERM
• For PERM exempt cases go straight to filing the
immigrant petition and may be able to file I-485
concurrently to get EAD
• Ensure the employer has the “ability to pay” the offered
wage or salary
• Must have good faith intent to offer long-term, full-time
employment to FN
• FN must prove s/he is qualified for the position
The Immigrant Petition
(I-140, I-360, I-526)

16. • This is the final stage in an EB green card case
• Focus shifts from the employer to the individual
• Is FN admissible to the U.S.?
• Dependents are processed at this stage
I-485 Adjustment of Status or
Immigrant Visa processing

17. • Published by Department of State at www.travel.state.gov
• Priority Date for EB petitions is either the filing of a PERM
labor certification application with DOL or for an I-140, I-360
or I-526 petition with USCIS
• Additional visa quotas based on country of birth for China,
India, Mexico and Philippines
• Cannot file the last stage of the green card process without
CURRENT priority date
Visa Bulletin

18. Employment-based Priority Dates
(from Feb. 2015 DOS Visa Bulletin, www.travel.state.gov)
EB All Chargeability
Areas Except
those Listed
China –
Mainland
born
India Mexico Philippines
1st C C C C C
2nd C MAR 15,
2010
SEPT 1,
2005
C C
3rd JAN 1, 2014 SEPT 1, 2011 DEC 22,
2003
JAN 1, 2014 JAN 1, 2014
4th C C C C C
5th C C C C C

19. Be proactive and initiate discussion
on green card early in the H-1B
tenure
H-1B and Green Card Status is
Achievable!

20. Questions? Visit imlaw.biz, we’re happy to help.