My First H 1B NW Regional Immigration Law Conference March 16, 2018 KoKo Y. Huang Jackson Lewis P.C. Seattle koko.huang@jacksonlewis.com (206) 405 0404) 405-0404 Chris Motta Wurst Lane Powell P.C. mottawurstc@lanepowell.com (206) 223 7276405-0404 1 H 1B Defined The Position = A Specialty Occupation An occupation which requires theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. 2 March 15-16, 2018 Page 1 of 8
Elements of an H 1B Petitioner must be a U.S. employer Foreign national must be in a specialty occupation Foreign national must be a qualified individual Petitioner must meet attestations on Labor Condition Application Prevailing wage and wage levels H 1B Cap Six year limit Extensions possible if in certain stages of the permanent residence process 3 Specialty Occupation Criteria (must meet at least one) Position normally requires a bachelor s degree or higher Degree requirement is common to the industry in similar positions and organizations Employer normally requires a degree Duties associated with a degree or higher because they are so specialized and complex 4 March 15-16, 2018 Page 2 of 8
Qualified Individual Education must = at least a U.S. bachelor s degree Combined education and experience to meet degree requirement? Three years of progressive experience = one year of education 5 Labor Condition Application (LCA) File with Department of Labor Prevailing wage Pay must be higher of prevailing wage or employer s actual wage for similarly employed workers Employer posting requirement at worksite Within 30 days of LCA filing Two conspicuous locations for 10 business days Public Access File 6 March 15-16, 2018 Page 3 of 8
H 1B Cap To work in H 1B status, a petition must first be filed, selected, and approved under the cap. 65,000 Regular Cap 20,000 Master s Cap Must be filed during first five business of April 7 H 1B Six Year Limit Six year limit only counts time spent inside the U.S. Includes time spent in L 1 status Recapture time spent physically outside the U.S. H 1B extensions beyond six years Three year extensions until priority date current with approved immigration petition (I 140) One year extension if PERM Labor Certification or I 140 pending for more than 365 days 8 March 15-16, 2018 Page 4 of 8
H 1B Petition Filing Procedure File LCA 7 days for DOL to certify Prepare I 129, I 129H, and I 129DC Supporting documents Beneficiary s education, passport, and evidence of current status Company marketing materials (possibly financial documents) Premium processing? Adjudicated within 15 days of receipt Mail to correct USCIS service center 9 H 1B Change of Employer Currently employed in H 1B status 60 day grace period may be applied by USCIS May begin working once an H 1B petition is filed by new employer on behalf of beneficiary Best practice: filed = receipt notice received Premium processing? If company does not normally PP, is there a business need (i.e., upcoming travel, expiration of current H 1B)? 10 March 15-16, 2018 Page 5 of 8
Other H 1B Petitions & Start Date H 1B Cap Beneficiary may begin working in H 1B status on October 1 st or when the petition is approved, whichever happens later. H 1B Extension (same employer) Beneficiary may continue working while petition is pending for up to 240 days beyond current expiration. Extension can be filed up to 6 months in advance of current expiration. H 1B Concurrent Employment Beneficiary may begin working once concurrent employer s H 1B petition is filed. 11 Consular Processing When to file consular processing? Beneficiary outside the U.S. Beneficiary unable to change status or change employer Additional time considerations for consular processing Visa appointment and issuance Administrative processing 12 March 15-16, 2018 Page 6 of 8
International Travel Must have valid H 1B visa to enter or reenter Possible exception automatic visa revalidation for travel to Canada or Mexico (and only Canada or Mexico) for less than 30 days I 94 Admit Until Date should always match validity end date (or 10 days after) of H 1B approval notice (Form I 797) Early passport expiration most common reason for shortened I 94 Avoid travel while H 1B petition is pending 13 Dependent Family Members Spouse and children under 21 eligible for H 4 status File I 539 if dependents are in U.S. Apply for H 4 visa at consulate if dependents are outside U.S. Must have: original marriage certificate, copy of H 1B spouse s approval notice, and evidence H 1B spouse is maintaining status (i.e., recent paystubs) H 4 spouse may apply for employment authorization document (EAD) card if H 1B spouse has an approved I 140 14 March 15-16, 2018 Page 7 of 8
Permanent Residence Process 1. PERM Labor Certification Best practice start before the beneficiary s 4 th year in H 1B status 2. I 140 Immigrant Petition Priority date once approved Beneficiary keeps priority date as long as I 140 petition is not revoked by USCIS under 8 CFR 204.5(e)(2) (i.e., fraud or misrepresentation, invalidation of PERM, material error) Beneficiary may receive H 1B extensions beyond 6 year limit if priority date not current I 140 not subject to automatic revocation if withdrawn by I 140 petitioner after 180 days 3. I 485 (Green Card Application) 15 Some Considerations Ch Ch Ch Changes Material change to the position Job duties or responsibilities Worksite outside metropolitan statistical area Changes to corporate structure Mergers, acquisitions, etc. Termination of employment Who is doing the terminating? Employer obligations Notification to USCIS and DOL 16 March 15-16, 2018 Page 8 of 8