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

INSZOOM Immigration Conference 2015
Empower Employees for Immigration Compliance
Copyright © INSZoom Immigration
Conference

Navigating the
H-1B VISA Maze
OCTOBER 2015
Conference

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.
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IMMIGRATION DRIVES INNOVATION
IMMIGRATION DRIVES SUCCESS
PUTTING THE RIGHT
PEOPLE
Right
People
IN THE RIGHT PLACESRight
Places
WITHIN THE RIGHT TIME
FRAME
Right
Time
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Legal Notice
Terms of Use
Usilaw 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.
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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 SESSION
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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
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H-1B Visas
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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 minimum
of 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 visitorCopyright © INSZoom Immigration
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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 Cap
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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
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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).
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… 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
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… 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
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What Should an H-1B Petition Include
• G-28 Attorney Representation Form
• I-129 and H Supplements
Forms
Certified Labor
Condition Application
Support Letter
• Educational Evaluation
• Educational Degree Certificates / Transcripts
• Professional Certifications
• Passport Copy
• Other Relevant Documentation
Supporting
Documentation
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…(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
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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. ”
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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?
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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) firms
where hires are placed at one of
the above 3 types of entitiesCopyright © INSZoom Immigration
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Simieo Policy Memorandum
To 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 Simeio
Solutions, 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
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REASONS FOR H-1B RFEs
Specialty
Occupation
Employer
Employee
Relationship
Educational
Evaluation
Itinerary of
Services
In- House
Employment
End Client
Project
Documentation
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Ideal H-1B CAP Petition Timeline
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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
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THANK - YOU
SOLUTIONS * SERVICE * SUCCESS
Anindita Chowdhury
Managing Attorney
P: 1.202.618.4540 F: 1.202.618.4543 anindita@usilaw.com
www.usilaw.com
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CONTACT INFO:
Anindita Chowdhury
10220 River Road, Suite 207
Potomac, Maryland 20854 USA
202 618 4540 T
202 618 4543 F
anindita@usilaw.com
INSZoom.com, Inc.
2603 Camino Ramon, Suite 375
San Ramon, California 94583 USA
925 244 0600 T
Sales@inszoom.com
Conference

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

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