Monday, January 23, 2012

Getting From F1 to OPT to H1B Visa Status

The goal of most International students after they graduate is to remain in the USA to gain work experience relevent to their degree studies. The H1B visa program is designed for and made available to F1 students to achieve this goal. The USCIS even introduced a seperate H1B quota (allocation of H1B visas) for International students.

F1 students can transfer / change status directly from F1 to H1B by obtaining a suitable H1B sponsorship position with an H1B sponsor company. However, many students choose (or find themselves requiring) to use the OPT visa program as an interim measure in the overall process of getting to H1B visa status. 

The H1B visa confers temporary worker status on the person who holds the visa. This visa is used to hire a foreign national who is a professional for a temporary period of time. H1B positions often appear at institutions of higher learning, but can be offered by any employer who needs the services of a person in a specialty occupation who holds at least a four-year degree or the equivalent in experience. Generally, three years of experience is equivalent to one year of education.

H1B status is initially granted for a maximum period of three years, but it can be extended for up to six years. This six-year maximum remains in effect no matter how many employers the foreign national has over this time period.
~ An H1B visa holder may also work part time.

The important thing for the H1B applicant to show is that the employee will be earning the ‘prevailing wage’ for that position in that geographic location. Prevailing wage varies by geographic location and is determined by the county where the H1B worker will be working.

Once the H1B visa is approved, the person can only work for the position stated on the H1B petition. If the person wishes to change employers, the new employer must file a new petition. An applicant may begin working for a new employer as soon as the new employer has filed their petition and subsequently received the official receipt from the USCIS.

Since the H1B status is employment based, this status will immediately end if the employment is terminated. If the alien changes employers, the new employer must file, and the BCIS must have received, the new petition before the date of termination of employment. If the alien is unable to procure employment before termination, he must return to his or her country of origin. The original employer is obliged to pay the alien’s airfare back to his or her country, but this provision will not be enforced by the BCIS. This is considered a contract matter between the alien and the now former employer.

Once a student finds an employer willing to sponsor him/her for an H1B visa, the petition can be filed. The USCIS offers expedited processing, known as Premium Processing for H1B cases. The USCIS guarantees review of the cases submitted within 15 calendar days of receipt of the application. This Premium Processing costs an additional $1000 in addition to the already steep filing fees of $1130, but it is in the person’s best interests to pay this extra fee. Without Premium Processing, adjudication of the application could take anywhere from six months to three years.

In addition to the requirement that the employer pay the prevailing wage to the H1B visa holder and the responsibility for paying airfare home should the position be terminated, the employer is responsible for posting a Notice of H1B filing for ten days at each work site where the alien will work. The employer must also maintain all conditions in the Labor Condition Application and the petition, including payment of the stated salary.

H1B petitions can be submitted up to six months prior to the date of employment in the case of new petitions. In the case of extensions of H1Bs, the petition should be filed within six months before expiration of the initial H1B visa as the process can take four to six months to complete.

In order to receive approval for an H1B visa, the employer must first demonstrate to the USCIS that it will be paying the applicant at least 95% of the prevailing wage. This is demonstrated with the Labor Condition Application (“LCA”). The employer is also required to make certain attestations. These attestations include the fact that the employment of H1-B workers will not adversely affect the work conditions of U.S. workers, that when the LCA was filed, there was no strike, and that the H1B worker will be given a copy of the LCA.

If the employer has over 50 employees, the employer is H1B dependent if at least 15% of the workforce is comprised of H1B visa holders. If the employer has 26-50 employees, the employer is H1B dependent if it employs more than 12 H1B workers. If the employer has 25 or fewer employers, the employer is H1B dependent if it employs more than 7 H1B workers. If the employer is H1B dependent, it has to make certain additional attestations not required by non-H1B dependent employers.

The H1B dependent employer must attest that it has not and will not displace a United States worker during the period from 90 days before the H1B visa petition is filed until 90 days after it has been filed. The employer must also attest that it has taken good faith steps to recruit United States workers for the job and that they have offered it to any United States worker who applied that was at least as qualified as the H1B visa holder.

Once approved, the LCA is valid for three years. Once the LCA is approved, the petition needs to establish that the employer has a legitimate need for a specialty occupation worker, that the position offered is a specialty occupation and that the applicant is qualified for the position.

Newer and smaller companies may have a harder time establishing their need as the USCIS usually requires tax returns and payroll records in order to show that it is able to pay the applicant.

Establishing that the position is a specialty occupation is generally straight-forward in the case of a graduate from an accredited United States institution of higher learning. Complications may arise when the position is not so easily categorized as a recognized specialty occupation for BCIS purposes. In a case where the nature of the position is not obvious, many types of evidence may be produced to establish that the position requires a person with a four-year degree. This may include evidence of past employees in this position with four-year degrees or evidence that similarly situated companies routinely hire persons with four-year degrees for this type of position.

Establishing the qualifications of the alien should NOT be difficult in the case of a graduating F1 visa holder. By definition this person has been involved in a field of study at an accredited United States university and a Credential Evaluation will most likely not be necessary. An alien with only an Associate’s Degree may still be able to demonstrate that he or she is qualified for an H1-B visa if he or she also has six years of experience in the field. In a case such as this, a Credential Evaluation will be necessary. The attorney you hire can refer you to a Credential Evaluation firm.

It is becoming commonplace since 9/11 for the USCIS to ask for additional evidence in most applications for any type of visa. For H1Bs, these Requests for Evidence (“RFEs”) have typically asked for the same sort of evidence. The BCIS will want to see a detailed description of the work done by the alien, including specific job duties, the percentage of time to be spent on each duty, the level of responsibility of the alien, hours per week of work, types of employees supervised and the minimum education, training, and experience necessary to do the job. The BCIS will also want the employer to explain why the work done requires the services of a person who has a college degree or its equivalent in the occupational field. |
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Typically, an H1B RFE will ask the employer to provide evidence of the position requirements in one of four ways:
1.
The employer can show that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry in the particular position for the petitioner’s industry by providing evidence that the petitioner and its competitors normally require a degree for the position offered.
2. The employer may also offer evidence that the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree by providing evidence that the petitioner’s competitors normally require degrees for closely related positions. Or the petitioner may show a more detailed explanation of the duties.
3. The employer may also offer evidence that this particular employer normally requires a degree or its equivalent for the position by providing employment histories including names and dates of employment of those employees with degrees previously in that position.
4. The employer may also offer evidence that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher by showing a more detailed description of the duties.
Once the employer has satisfied the BCIS that the position offered is a specialty occupation, that the alien has the qualifications, and that they are able and will be paying the prevailing wage, the H1-B is granted. At this point, the alien will be entitled to work for up to six years in the United States with this visa.


GETTING FROM F1 to H1B TO GREEN CARD
Once the F1 student has changed his or her status to that of H1B, he or she may wish to adjust his or her status to that of lawful permanent resident, or green card holder. A green card can be obtained by sponsorship by the H1B visa holder’s employer, or another one. If the person wishes to apply for the green card, and the employer is willing to sponsor him or her, he or she should apply for the Labor Certification with the Department of Labor as soon as possible.

~ Green Card processing through Labor Certification can take up to a few years to process.

~ Reduction in Recruitment (“RIR”) is a process that can theoretically speed this process up; however, the reality since 9/11 is that the BCIS is approving less and less applications for RIR.

RIR is a process wherein Labor Certification can be obtained if the employer has conducted a good faith effort to recruit United States workers for a period of six months prior to the filing of a labor certification and failed to find a qualified United States worker. The Department of Labor may rely on the employer’s efforts to forego recruitment under its supervision.

The Department of Labor provides a four-prong test for establishing a good RIR case.
~ If the employer can show that the job offered is in one of those occupations for which there is little or no availability of qualified United States workers,
~ there are no restrictive requirements,
~ that they meet the prevailing wage and
~ that the employer has shown adequate recruitment through sources normal to the occupation and industry within the previous six months, then the Department of Labor may approve the RIR.

If the RIR fails to be approved, as is becoming more frequent, the case does not fail. The case merely falls back in place and treated as any other case, thus taking years to complete. For this reason, it is prudent on the part of the H1-B visa holder to apply for the green card as early as possible.

Once the employer has received an approved Labor Certification, the employer may apply to the BCIS with the form I-140. The alien’s spouse and children may be included in the petition. Processing time at this stage can take three to eight months. Once the I-140 is approved, the next step is for the alien to apply for Adjustment of Status. Once application is made for Adjustment of Status, the alien and his or her spouse and children will receive work authorization within 90 days.

The alien will have an interview for the green card within six months to three years. Once the interview is successfully completed, the alien and his or her family will receive their green cards and become lawful permanent residents of the United States.

(Information sourced from H1base portal )

With Regards
Vijay Paul
ALTUS TECHNOLOGIES INC
Phone : 703.310.7053 Ext 1011 | Direct Line : 703.434.3256 | Fax : 703.738.7745

2 comments:

  1. There are many ways to apply green card: through employment, a family member or marriage. Individuals who have already obtained a green card may require the green card to be replaced, renewed or perhaps it is time to remove the conditions on your Conditional Green Card issued based marriage. Immigration Direct guides you through the Green Card process making it simple, secure and affordable.

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