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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
Employment Based Immigration:
Analysis of EB Related Provisions of the
Immigration and Nationality Act (Part 2)
Bradley D !aier
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cto$er 3% 23/Copyright Schwabe, Williamson & Wyatt. 2014. All rights reserved
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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BA"ED 8I"A 9A5E4RIE"Visa Bulletin
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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BA"ED 8I"A 9A5E4RIE"September 2014 September 2013
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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U.S. Immigration law currently provides for a varietyof nonimmigrant (nonpermanent) guest worker visa
categories (8 C.F.R. 214.2). The categories thatare most commonly used include:
E-1/E-2 Treaty Trader/Investor
H-1B Specialty Occupation
L-1 Intracompany TransfereeO-1 Extraordinary Ability or Achievement
P-1 Professional Athletes and Entertainers
TN Treaty National
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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U.S. Immigration law currently provides for a varietyof nonimmigrant (nonpermanent) guest worker visa
categories (8 C.F.R. 214.2). Other less usedcategories include:
H-2B Temporary or Seasonal Workers
J-1 Exchange Visitor
R-1 Religious Worker
Other: B-1 Visitor For Business
F-1 International Student
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
4eneral 9onsiderationsGather info and analyze:What is job/purpose?
Nationality?
Timeframe? (Border app or premium processing)?
U.S. entity involved?
Size of entities in terms of # of employees and revenue.
Applicant and his/her credentials.
Current/prior immigration status (keeping in mind time limitations on somecategories).
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#
INA 101(a)(15)(H)(i)(b)/8 C.F.R. 214.2(h).
Timing considerations due to limited numberof visas and tied to fiscal year. There are65,000 H-1B visas available per year + an
additional 20,000 set aside for holders ofU.S. earned masters degrees.
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
Total: 76,743
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Demand
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Demand
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#
Position must involve a specialty
occupation as defined by INA 214(i)(1)and 8 C.F.R. 214.2(h)(4)(ii), as requiring:Theoretical and practical application of a body ofhighly specialized knowledge, and
Attainment of a bachelors or higher degree inthe specific specialty (or its equivalent) as aminimum for entry into the occupation in theU.S.
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#To qualify, employer must demonstrate that:A bachelors or higher degree or equivalent is normallythe minimum requirement for entry into the occupation;
Degree requirement is common in the industry in parallelpositions among similar organizations OR the particularposition is so complex or unique a degree is required;
Employer normally requires a degree or equivalent; OR
Nature of specific duties are so specialized or complexthat knowledge required to perform the duties is usuallyassociated with a particular degree.
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#Key additional requirements:Employee must possess the required degree (or
equivalent).Employer must be willing to pay the requiredwage (higher of actual wage or prevailing wage)free and clear.
Employer must obtain certified Labor ConditionApplication from DOL before filing with USCIS.
Employer must provide notice of hiring toaffected work force or bargaining representative.
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#
Key additional requirements (cont.):
There must be a true employer/employee relationship.
Employer must pay for reasonable cost of transportationback home if employee terminated early.
There must not be a strike or lock out in place.
No test of labor market required but may not displace aU.S. worker or adversely affect the wages and/or workingconditions of U.S. workers.
Visas must be available. Timing (and luck) are key.
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#Hypothetical 1:
Josies Garage is relatively small with only five employees total. Josie
currently employs Peter, a citizen of Australia and recent graduate from
PSU with a degree in finance and accounting. Shes been employing Peter
based upon his post-graduation temporary Employment Authorization
Document that is valid for another six months. Hes also a skilled auto
mechanic. Shed now like to employ him full-time. Hes told her that she
should be able to get an H-1B for him. Do you agree?
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#Hypothetical 1:
Josies Garage is relatively small with only five employees total. Josie
currently employs Peter, a citizen of Australia and recent graduate from
PSU with a degree in finance and accounting. Shes been employing Peter
based upon his post-graduation temporary Employment Authorization
Document that is valid for another six months. Hes also a skilled auto
mechanic. Shed now like to employ him full-time. Hes told her that she
should be able to get an H-1B for him. Do you agree?
Assuming a qualifying position, what if H-1B visas were gone for the year?
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#
Hypothetical 2:
Excelsior Inc. is a medium sized software development company based in
Seattle. The companys biggest client is Microsoft. Bhanu is a citizen of
India and one of the companys software engineers. She received an
undergraduate degree and masters degree in computer science from a
university in India. Shes currently working for the companys subsidiary in
India. The company would now like to employ her in the U.S.
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#
Hypothetical 2:
Excelsior Inc. is a medium sized software development company based in
Seattle. The companys biggest client is Microsoft. Bhanu is a citizen of
India and one of the companys software engineers. She received an
undergraduate degree and masters degree in computer science from a
university in India. Shes currently working for the companys subsidiary in
India. The company would now like to employ her in the U.S.
Start up phase without a lot of capital? Employees putting in sweat equity.
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
+3B Brief vervie#
Hypothetical 2:
Excelsior Inc. is a medium sized software development company based in
Seattle. The companys biggest client is Microsoft. Bhanu is a citizen of
India and one of the companys software engineers. She received an
undergraduate degree and masters degree in computer science from a
university in India. Shes currently working for the companys subsidiary in
India. The company would now like to employ her in the U.S.
Start up phase without a lot of capital? Employees putting in sweat equity.What if parent company was Indian?
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
Employment Based Permanent
ResidenceEMPLOYMENT-BASED PREFERENCES
First:Priority Workers: 28.6% of the worldwide employment-based preference level, plusany numbers not required for fourth and fifth preferences.
Second:Members of the Professions Holding Advanced Degrees or Persons ofExceptional Ability: 28.6% of the worldwide employment-based preference level, plus any
numbers not required by first preference.
Third:Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level,plus any numbers not required by first and second preferences, not more than 10,000 of
which to "*Other Workers".
Fourth:Certain Special Immigrants: 7.1% of the worldwide level.
Fifth:Employment Creation: 7.1% of the worldwide level, not less than 3,000 of whichreserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside
for investors in regional centers by Sec. 610 of Pub. L. 102-395.
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
Employment Based Permanent
Residence
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
Employment Based Permanent
Residence
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
Employment Based Permanent
Residence
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
BA"I9 6ABR 9ER5I;I9A5IN
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
BA"I9 6ABR 9ER5I;I9A5IN
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
BA"I9 6ABR 9ER5I;I9A5IN
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
BA"I9 6ABR 9ER5I;I9A5IN
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
BA"I9 6ABR 9ER5I;I9A5IN
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
BA"I9 6ABR 9ER5I;I9A5IN
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
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Schwabe, Williamson & Wyatt| Portland, OR | Bend, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington, DC
!atter of >a?arian
Kazarian v. U.S. Citizenship and Immigration Services, 580 F.3d 1030(9th Cir. 2009).
Kazarian v. U.S. Citizenship and Immigration Services, 596 F.3d 115(9th Cir. 2010).
Rijal v. U.S. Citizenship and Immigration Services, Case No. C10-709RAJ, U.S. District Court, Western District of Washington, February
22, 2011).
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Sh b Willi &W | P ldOR | B dOR | Sl OR | S l WA | V WA | W hi DC
5han@ yo
Bradley Maier is an attorney with the Northwest law firm of Schwabe, Williamson & Wyatt where
he focuses on business immigration and customs law and compliance. He assists foreign and
domestic companies with a wide variety of immigration matters to acquire foreign talent and key
personnel. He also advises companies regarding I-9 compliance and U.S. customs. A native
Oregonian, he attended Lewis & Clark Law School, Reed College and Portland State University.Before law school, Mr. Maier directed immigration counseling programs for two local non-profits
as an Accredited Representative. His professional accomplishments have been recognized by
Chambers USA, Oregon Super Lawyers, and the Daily Journal of Commerce. Mr. Maier is an
active member of the American Immigration Lawyers Association (AILA) and served as Chapter
Chair of the Oregon Chapter between 2010 and 2012.