The FY2014 H-1B Cap: What You Need To

Know About H-1B Processing and Trends

February 20, 2013

Murali Bashyam and Ame CoatsBashyam Spiro & Coats LLP – Immigration Law Group

www.bashyamspiro.com

This Internet seminar is intended solely to provideinformation to the public. Nothing in this webinarshould be taken as legal advice or legal opinion forany individual case or situation.

The information is offered for general information and

educational purposes only.

The participation in this webinar does not create anattorney-client relationship.

TODAY’S OBJECTIVES

Basic Overview of the H-1B Visa

H-1B Cap Numbers

H-1B Cap Exempt Organizations and Strategies

F-1 Cap Gap for Students

NEUFELD MEMO and the “Employer-Employee” Relationship

Are there Alternatives to the End-Client Letter?

Changes in Work Location and H-1B Amendments

Visa Processing and 221G

Questions

Basic Overview of the H-1B Visa

Specialty OccupationHighly Specialized DutiesAttainment of a “Specific” Bach. Degree or

equiv.

Qualified Professional

Temporary (up to 6 years with exceptions)

H-1B Cap Numbers

65,000 Regular Cap (Minus 1400 Chile; 5400 Singapore)

20,000 US Advanced Degree Cap

New H-1B: File April 1st for October 1st Start Date

When Will the H-1B Numbers Run Out? – FY2012 (November); FY2013 (June); FY2014?

Exempt From The Cap – 1) Transfers, 2) Extensions, 3) Previously Been Counted Against the Cap

H-1B Cap Exempt Organizations and Strategies

Working “at”: Institutions of Higher Education or Related or Affiliated

Nonprofit Entities Nonprofit Research Organizations Government Research Organizations

Ex. Sometimes Private Schools have Formal Affiliations with Universities and Are Cap Exempt

Ex. Are You a Private Employer and the H1B Worker will be Working ‘at’ an Institution of Higher Education? Cap Exempt.

F-1 Cap Gap for Students

F-1/J-1 (and Dependents) Who Timely File H-1B C/S Application Can Remain in the US Until the October 1st H-1B Start Date Even if Status Expires Before That Date

File C/S During Grace Period – Can Remain in the US But Cannot Work

File C/S Before OPT Expiration Date – Both Status and OPT Extended Until October 1st

NEUFELD MEMO and the “Employer-Employee” Relationship

January 2010: USCIS issued a memo clarifying what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification.

Who Does it Impact?

H-1B beneficiary/employee working at a third-party (end-client) worksite. (Ex: IT consulting and other staffing industries)

Owner-Employees of Companies (Must show ‘independence’ through Board Resolutions etc.)

The End-Client Letter

USCIS Required from End-Client in Third Party Placement Cases

Letter Must Address Project, Term, Duties, Requirements and Right of Control

Sometimes End-Clients Do Not Want to Give Letters…

Which Begs the Question….

Are there Alternatives to the End-Client Letter?

KIND OF………

Alternatives to the End-Client Letter

No Perfect Solution or Alternative

If Already Placed at End-Client – Badges, Emails from Client Confirming Company Policy, Work, Project Etc.

Direct Client – Vendor Agreement and PO

Sometimes Affidavit

Very USCIS Officer Specific

Changes in Work Location and H-1B Amendments

Fallacy: A Change in Work Location Requires only a new Labor Condition Application (LCA)

If New LCA Is Required for a New Work Location; Must File H-1B Amendment with USCIS

USCIS Site Visits – Officer Visits Location on I-129 Petition; Denials After Site Visits with new LCA but No Amendment

Blog - http://www.bashyamspiro.com/immigration-meditation/2012/03/08/h-1b-amendments-the-times-they-are-a-changin’/

Visa Processing and 221G

221G – Consular ‘Requests for Evidence’

More Frequent in India for IT Professionals

What Can They Request?

END-CLIENT LETTER Company Financials Employee Roster List, With Titles, Duties, Status and Salary Everything You Have Already Submitted To Them!

How Long Does it Take to Receive Decision?

Pre-Plan Before A Trip

QUESTIONS?Please Type Your Question into

the Chat Box on the Webinar Panel…

THANK YOU!

Murali Bashyam – murali@bashyamspiro.comAme Coats – ame@bashyamspiro.com

Call us at: 919-833-0840