Workshop session 1 fundamental h-1_b strategies and concepts_anindita chowdhury

INSZOOM Immigration Conference 2015Empower Employees for Immigration Compliance

Copyright © INSZoom Immigration Conference

Navigating the

H-1B VISA MazeOCTOBER 2015


Anindita Chowdhury and USILAW

• Founder and Managing Attorney of Usilaw, Inc. (20+ yrs. of experience)

• J.D. (Washington College of Law, American University, Washington, D.C.); M.A. Government (Lehigh University, Pennsylvania); B.A. (Loreto College, Kolkata, India)

• Usilaw, Inc. specializes in Global Corporate Immigration and has in-depth expertise in the full range of Employment and Immigration Visas. Our concentration is on the United States but we have significant experience in other countries, including Canada, Australia, Singapore, China and India, among others.

• Corporate Clients: Global 1000 companies, mid-tier companies, and start-ups (IT, Consulting, Manufacturing, Green Technologies, Oil and Gas, Mining, Government Contracting, Professional Services and Education.

• The key Usilaw Differentiators:

– SOLUTIONS: Highly customizable, scalable and integrable system with proven Processes and Methodologies.

– SERVICE: Responsive and Accountable. “Pitbull” for our customers.

– SUCCESS: Almost 100% success rate. For one client who uses 3 law firms Usilaw was only firm with 100% success of EB-1 (C) petitions.


IMMIGRATION DRIVES INNOVATIONIMMIGRATION DRIVES SUCCESS

PUTTING THE RIGHT PEOPLE

Right People

IN THE RIGHT PLACESRight Places

WITHIN THE RIGHT TIME FRAME

Right Time


Legal Notice

Terms of UseUsilaw has provided this presentation as a service to companies and / or company representatives for information, education, and communication. This presentation should not be used as or in place of legal advice. Unless specifically noted otherwise, all content of this presentation (not including the Greats Seals of the United States and some photos and illustrations) is the property of Usilaw and is protected under copyright laws. You may view, and use content from this presentation solely for your personal, noncommercial use and provided that you keep intact all copyright and other proprietary notices. However, you may not use, modify, transmit, republish, upload, or distribute in any way the content of this presentation for public or commercial purposes, including the text, images, and graphics, without the written permission of Usilaw. While Usilaw uses reasonable efforts to include accurate and up-to-date information in this Presentation, it makes no warranties or representations as to the accuracy or completeness of the information in this presentation. Usilaw shall not be liable for any damages or injury (including, but not limited to, any special, indirect, incidental, or consequential damages) resulting from your reliance on any information provided in this presentation.

Legal Information

The information presented in this presentation “Navigating the H-1B Maze" is for information purposes only. This information does NOT constitute legal advice, and should NOT serve as the basis for any legal decision by you. Please consult with an attorney should you have questions regarding information contained in the presentation.


Today’s Schedule

AGENDA

PRIMER ON U.S. CORPORATE IMMIGRATION

INTODUCTION TO H-1B VISAS

H-1B ISSUES – LCAS, PAF ETC.

WHAT SHOULD AN H-1B PETITION INCLUDE?

SPECIALTY OCCUPATION

RIGHT TO CONTROL

H-1B TRANSFERS

SIMEIO POLICY MEMORANDUM

RELEVANT ISSUES

FAQs FOLLOWED BY OPEN DISCUSSION / Q&A SESSIONCopyright © INSZoom Immigration

Conference

Corporate Immigration – A Primer

• Corporate Immigration is welcome in the United States• Worldwide welcome mat talent

• Fierce rivalry for brains

• U.S. Government Policies• Nation of Immigrants

• An Ecosystem of Support• Clear Rules and Regulations

• Transparency


H-1B Visas


Visas – For Temporary Workers

• Temporary Employment Visas are for Individuals who want to enter the United States for employment lasting a fixed period of time, and are not considered permanent or indefinite

Types of H Visas Requirements and Restrictions

Persons in “Specialty Occupation.” Generally requires a minimumof a Bachelor’s Degree or equivalent.

H-2A For temporary or seasonal agricultural work. Limited to citizens or nationals of designated countries

H-2B For temporary or seasonal non- agricultural work. Limited to citizens or nationals of designated countries

H-3 Trainee or Special Education visitor Copyright © INSZoom Immigration Conference

Visas

• Non-immigrant visa under the Immigration and Nationality Act, Section 101(a)(15)(H)

• Work in a specialty occupation. Requires a higher education degree or its equivalent– “Specialty Occupation” means the theoretical and practical application

of a body of highly specialized knowledge– H-1B work-authorization is strictly limited to employment by the

sponsoring employer

• The duration of stay is initially three years, extendable to six years– If Labor Certification or Immigrant Visa Petition is pending can be further

extended

• USCIS is authorized to approve only 65,000 H-1B visa petitions per fiscal year (which starts on October 01)– Additional 20,000 Visas are reserved for students who have a Master’s or

Higher degree from an accredited U.S. University– Only Foreign Nationals filing an H petition for the first time are subject to

the H CapCopyright © INSZoom Immigration

Conference

Visa Considerations

• A H-1B Visa petition has to be preceded by a Labor Condition Application (LCA) that has to be filed with the Department of Labor– LCA demonstrates employer is paying the “required wage”

for the position in the geographic region where the job is located• Required wage for the position is the higher of the "actual wage" that

is paid to other employees in this position or the "prevailing wage” (job and geography based)

– LCA takes approximately 4-5 business days to processCopyright © INSZoom Immigration Conference

Visa Considerations

• H-1B Visas are employer, location and job specific– If an employee moves to a new location a new amended H

petition has to be filed to ensure that the required wage is being paid

– If an employee gets a promotion or changes job duties, a new amended H petition has to be filed

• Spouses and Dependents of H Visas are entitled to H-4 Visas. H-4 Visas holders are generally not allowed to Work in the United States. Exception: Effective May 26, 2015 -Spouses on H-4 visas are eligible for employment authorization if the principal H-1B beneficiary has an approved I-140 immigrant petition or has been granted H-1B status (AC-21 sec 106).


… Visa Considerations

LCA Posting Requirements

• Creation of a Public Access File (PAF)

• PAF includes copy of Prevailing Wage, Confirmation of Posting, Copy of Form 9035 (LCA), Actual Wage Memo, Wage Rate Statement, Summary of Benefits

• Notice of LCA filing must be posted at two conspicuous locations at the job site for 10 consecutive business days


… Visa Considerations

• H-1B “Bench Pay”

• H-1B Withdrawal Issues

– Notification to USCIS

– If terminated, employees on an H Visa have to be offered costs of return transportation


What Should an H-1B Petition Include

• G-28 Attorney Representation Form

• I-129 and H SupplementsForms

Certified Labor Condition Application

Support Letter

• Educational Evaluation

• Educational Degree Certificates / Transcripts

• Professional Certifications

• Passport Copy

• Other Relevant Documentation

Supporting Documentation


…(Contd.) What Should an H-1B Petition Include:

Support Letter

• Information about petitioning organization

• Job title and job duties (meets the criteria of Specialty Occupation)

• Employee – Employer Relationship / Right to Control

• Itinerary of Services


SPECIALTY OCCUPATION

In order to meet the standards of a Specialty Occupation the USCIS has laid out four criteria out of which at least one has to be met:

• “A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;

• The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;

• The employer normally requires a degree or its equivalent for the position; or

• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree. ”


RIGHT TO CONTROL

• Employer – Employee Relationship (Right to Control) guided by Neufeld Memo [Jan. 2010]

• Determined largely by whether the Employer controls the means and manner in which the work is performed

• Questions asked by the USCIS:1. Does the H1B petitioner supervise the H1B employee / worker and is such supervision off-site or on-site?2. If the supervision is off-site, how does the H1B petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner? 3. Does the petitioner have the right to control the work of the H1B worker on a day-to-day basis if such control is required? 4. Does the petitioner provide the tools or instrumentalities needed for the H1B worker to perform the duties of employment? 5. Does the petitioner hire, pay, and have the ability to fire the H1B employee? 6. Does the petitioner evaluate the work-product of the H1B worker, i.e. progress/performance reviews? 7. Does the petitioner claim the H1B employee for tax purposes? 8. Does the petitioner provide the H1B worker any type of employee benefits? 9. Does the H1B employee use proprietary information of the petitioner in order to perform the duties of employment?10. Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business? 11. Does the petitioner have the ability to control the manner and means in which the work product of the H1B worker is accomplished?


H-1B Transfers and Extensions

• H-1B Transfer - Portability– Beneficiary’s can work upon the filing of transfer petition– 240 Day Rule

• Re-Capture of unused H-1B time– Six-year total includes time in H-1B status

• Filing of H-1B extensions under AC 21– AC21 §104(c)

• Beneficiary of an employment-based petition who is eligible for permanent residence (with approved Labor Certification and I-140) but for per-country limits may obtain extension of H-1B status until adjustment of status is decided

– AC21 §106(a)• Renewal in 1 year increments of H-1B status for beneficiaries of

employment based petitions when 365 days have elapsed since labor certification application or immigrant petition was filedCopyright © INSZoom Immigration

Conference

Cap Exempt H-1B Employers

• A not for profit institution of higher education

• A not for profit entity related or affiliated to an institution of higher education

• A not for profit research organization or a governmental research organization

• Certain for-profit (e.g. consulting/contracting) firmswhere hires are placed at one of the above 3 types of entitiesCopyright © INSZoom Immigration

Conference

Simieo Policy MemorandumTo Amend or Not to Amend

• July 21, 2015 USCIS Policy Memorandum on when an H-1B employer must file an amended petition following the precedent decision in the Matter of SimeioSolutions, LLC

• New Labor Condition Application = Need to file an amended petition

Before April 9, 2015 no amendment needs to be filed if an LCA is in place. If that is not the case then amendment is required and must be received by USCIS no later than January 15, 2016

April 10, 2015 to August 18, 2015 amendment is required and must be received by USCIS no later than January 15, 2016

August 19, 2015 Amendment needs to be filed before work begins at new location


REASONS FOR H-1B RFEs

Specialty Occupation

Employer Employee

Relationship

Educational Evaluation

Itinerary of Services

In- House Employment

End Client Project

Documentation


Ideal H-1B CAP Petition Timeline


FAQs

Q: When can one start filing for the H Visas?A: The USCIS starts accepting petitions from April 1. It has to accept petitions for the first five business days. If more than 65,000 petitions are filed within that period, a lottery is implemented and only 65,000 cases are accepted

Q: What is H Portability?A: H-1B holder can change their employer and start to work for a new employer on the date that the USCIS receives the H-1B transfer petition submitted by the new employer on behalf of the H-1B petitioner. Beneficiary will be in status for 240 days pending approval of new petition.

Q: If one is already on a H-1B Visa and wants to move to a new employer, is that person subject to the H Cap?A: No, as long as the person has not run out of H-1B time restrictions

Q: Is a person on a L, H-4 Visas, EAD applying for H-1B status subject to the H-1B Cap?A: Yes


THANK - YOU

SOLUTIONS * SERVICE * SUCCESS

Anindita ChowdhuryManaging Attorney

P: 1.202.618.4540 F: 1.202.618.4543 [email protected]


CONTACT INFO:

Anindita Chowdhury

10220 River Road, Suite 207Potomac, Maryland 20854 USA 202 618 4540 T202 618 4543 [email protected]

INSZoom.com, Inc.

2603 Camino Ramon, Suite 375San Ramon, California 94583 USA925 244 0600 T

[email protected]


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Date post:	23-Jan-2017
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