H VISA PRESENTATION
I.
Introduction
II.
H-1B (Mike)
III.
H-1C (Mike)
IV.
H-2 (Kate)
V.
H-3 (Kate)
VI.
H-4 (Mike)
---------------------------------------------------------------------------------------------------
H VISAS
Source:
INA 1952
Types of H visas:
(a) H-1B (Professionals) [annual limit]
(b) H-1C (Nurses in shortage areas) [annual limit]
(c) H-2A (temp or seasonal agricultural workers)
(d) H-2B (Temp nonagricultural workers in short supply) [annual limit]
(e) H-3 (trainees)
(f) H-4 (Spouse and minor children accompanying a principal H worker
or trainee)
Procedure:
Ø Certified prerequisite application documents may need to be filed
simultaneously.
Ø Must be filed by “United States Er” at BCIS service center with
jsn over the place of employment. (WHICH ONE FOR OREGON??????)
Er can use “Premium Processing Service” to
expedite BCIS’s handling of the I-129. Er
pays $1,000 premium processing fee and files I-907.
BCIS must respond w/in 15 days or else
refund fee automatically.
Ø
Can be filed with
H-1B or while petition is pending.
Ø
Also, if BCIS makes a
request for evidence the 15 day period is refreshed when response submitted.
Ø
H-1B petitioner must
file Labor Condition Application (LCA), form ETA-9035, with DOL. Must be certified by DOL and submitted with
petition.
Ø
H-2 petitioner must
file a temporary Application for Alien Employment Certification, form ETA-750
Part A, with the DOL. Must be approved
and filed with petition.
Ø
H-3 petitioner is
exempt from prerequisite application.
COS: Possible if
a.
the petitioner is
lawfully in the US in another nonimmigrant status, or
b.
may request BCIS
notify a US consul abroad of approval of the visa petition if the alien is
outside the US.
Petitioner
Inside US & COS or EOS granted - I-797A with tear-off I- 94.
Petitioner
Outside US – I-797B w/ tear-off consular notification card.
Ø
Alien must present
form at US consulate to obtain visa.
Also required to submit DS-156, Nonimmigrant Visa Application(NVA), to
obtain the visa from the consul.
Ø
Note, all male NVA’s
must also file DS-157, Supplemental NVA.
4a. Arrival (Aliens)
Ø H-4 derivative beneficiaries will need to apply for H-4 visa stamp
with the form DS-156 and the principal’s original form I-797, or the principals
Form I-94 showing lawful admission to the US in H status.
4b. Already Admitted alien
a. I-94 may be issued as part of the Form I-797A approval notice
(issued in the status and for the duration requested on the petition).
Ø Note, if already admitted alien departs US they will need to take
I-797 and H visa stamp in order to return to the US.
Ø However, possible exception to this departure rule if it is a
short trip to Mexico or Canada less than 30 days.
5. Extensions
Similar procedure
a. Er files I-129 + H Supp + Petitioners statement showing that the
basis fro the classification continues to exist.
Ø If original filing required prerequisite applications that process
must also be followed for extensions.
b. Timing matters
i.
If extension request submitted
before initial status expires = up to 240 continued employment with the
same employer while awaiting BCIS decision.
Ø Consider relation to Portability Rules, AC21.
ii.
If submitted after
PORTABILITY RULES
Source: AC21.
Effect:
Allows certain aliens (who have previously had an H-1B visa or H-1B status)
to “port” and begin working for a new employer as soon as the new employer
files the H-1B petition with the BCIS.
Conditions:
1. Has been lawfully admitted to US
2. Subsequent to such admission, has not worked w/o permission
3. On whose behalf an er has filed a nonfrivilous petition for new
emp prior to the expiration of authorized stay.
Ø Anyone who meets these criteria may accept new emp prior to
authorization of authorized stay.
Ø Means ee who is out of stauts b/c he or she lost the H-1B
authorized emp may “port” and ACC new emp when the new H-1B petition is filed
Ø Portable emp lasts only until the petition is adj.
Ø Also, note, that it is not always necessary to file LCA at time of
petition relating to portability.
PN: If no petition has been filed prior to expiration
of the authorization date the ee CANNOT
work. No extension is possible. And
they will have to leave the US to obtain a new visa.
---------------------------------------------------------------------------------------------------
H-1C (NURSES)
Source: HR 441, the Nursing Releig for
Disadvantaged Areas Act (1999).
Effect:
Allows 500 new H-1C visas annually until it expires on June 13, 2005. Also allows AC of Commission on Graduates of
Foreign Nursing Schools (CGFNS) certificates.
PN: At midnight your glass slipper with shatter
unless you kiss the prince beforehand ie get your application in before 6/13/05.
Procedure:
1. DHHS designated “Health Professional Shortage Areas” must file
labor attestation with the DOL ($250 fee)
Alternatives:
In
some cases, nurses may also be able to use H-1B, H-3, or TN status.
---------------------------------------------------------------------------------------------------
H-1B (WORKERS IN SPECIALTY OCCUPATIONS)
History: Have become more difficult to obtain in recent years due to
complicated procedures, especially regarding the Labor Condition Application
(LCA).
What is a “Specialty Occupation”?
Defined
in the statute as “an occupation that requires
(a) Theoretical and practical application of a body of highly
specialized knowledge, and
(b) Attainment of a bachelor’s or higher degree in the specific
specialty (or equivalent) as a minimum for entry in to the occupation in
the US.”
Criteria: One or more of the following must be met
1. A bachelor’s or higher degree or its equivalent is normally the
minimum requirement for the position;
2. The degree requirement is common to the industry, or in the alt,
the position is so complex or unique that it can be performed only by an
individual with a degree;
3. the Er normally requires a degree of its equivalent for the
position; or
4. 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 BA or higher degree.
Ø Required degree must be in specialty field. Ie, can’t used PE Major as basis for
computer science job at Intel.
Ø Liberal Arts degrees may be denied H-1B status.
Ø Also, if position is typically staffed by persons with Business
Adm degrees the petition may be challenged.
Qualifying for the Specialty Occupation:
Beneficiary
will generally need:
1. Full state licensure (if required for practice in state)
Ø
Interim permits may
also be used.
Ø
Some jobs like
pharmacist can cut both ways. In
pharmacy = license. As researcher = no
license. Same for lawyers, accountants,
architects, doctors, and engineers.
Ø
Note, not all
licensed positions are “specialty occupations.”
2. Completion of US BA or higher degree (or its foreign equivalent)
in the specific specialty or a related field, or
Ø
Degree and level (ie
BA, MS, PHD) required will depend on the specialty.
Ø
Foreign degrees
should be evaluated by a competent, independent credentials evaluator to
certify their U.S. degree equivalence.
3. education, training, or experience in the specialty equivalent to
the completion of such degree.
Ø
An aggregate of
courses at a University can satisfy this requirement even if the individual did
not obtain a specific degree in this area.
Ø
Also note that math
or engineering degree may apply to several occupations.
Ø
Experience requires
showing of “progressively responsible positions relating to the specialty.”
*
Special requirements may apply to foreign physicians.
Equivalency Standard
Showing permitted through
a.
an evaluation by a
college official authorized to grant credit for training and/or experience n
the specialty;
b.
the results of
college-level equivalency examinations of special credit programs; or
c. cert or registration from nationally recognized professional
assoc(s).
d.
Also, 3-for-1
Rule. 3 years of specialized training
and/or work experience may wholly substitute for a BA.
* Note, 3-1 will not substitute for MS, or
PHD.
* MS can be substituted by BA+5 years in
specialty.
* No substitute at all for PHD.
Labor Condition Application (LCA)
Pre-req
to H-1B approval.
Burden on Er:
1. Must contain 4 standard attestations
a. It is paying and will continue to pay to the H-1B ee wages that
are at least
i.
the actual wages paid
to others with similar experience and qualifications for the specific job, or
ii.
the prevailing wage
for the occupational classification in the area.
* Whichever is greater, based in info
at time of filing. Also applies regarding benefits.
Ø
Determination of
prevailing can be based on state workforce agency, published wage survey for
the occupation in the area of intended emp, or reliance on another legit source
of wage data. Very controversial. Why? Rapidly changing labor market.
Ø
Prevailing wage = 95%
of the determined wage.
Ø
Academic jobs follow Hathaway
Rule where wage need only meet what is paid at similar institutions and not
on the private market.
b. It will provide working conditions for H-1B ee that will not
adversely affect the working conditions of workers similarly employed in the
area.
c. There is no strike or labor dispute at the place of emp.
Ø
Er must notify the
Employment and Training Adm (ETA) w/in 3 days
if one arises.
d. It has
i. Provided notice to bargaining rep (if any); or
ii. It has posted notice of filing in at least 2 conspicuous locations
at the place of employment for a period of 10 days.
Ø
Notice must include
information that (1) H-1B nonimmigrants are sought, (2) the number er is
seeking to emp, (3) occupational classification, (4) wage or wage range
offered, (5) period of emp, (6) location(s), and (7) that the LCA is available
for public inspection. Also must
contain info re where to file complaints re LCA (with DOL).
Ø
Alternative option is
to send on-time electronic notice.
2. Must document compliance with the LCA reqs in a public access
file.
Ø
Ers who are H-1B
dependent or willful violators must make additional attestations and retain
additional documentation.
Ø
Single LCA may be
filed for multiple positions.
PN:
LCA should be filed over the internet b/c it results in nearly instantaneous certification by
DOL.
File
should include:
1.
Copy of LCA
2.
Doc of wage to be
paid to the H-1B (offer letter or other)
3.
Explanation of system
used to set the actual wage
4.
Copy of prevailing
wage from source used
5.
Copy of notice to
unions (if app) or postings
6.
Summary of benefits
plan offered to H-1B showing that it is the same offered to US workers.
7.
Copy of certified LCA
with signature of H-1B ee as proof of receipt
Files that may need to be incl