The Coveted H1b

The Coveted H1B: The Coveted H1B: Convincing the Employer Convincing the Employer

to Sponsorto Sponsor

Presented by:Presented by:David A.M. Ware, attorney at lawDavid A.M. Ware, attorney at law

www.david-ware.comwww.david-ware.com. . [email protected]@david-ware.com800 537 0179800 537 0179

Offices Across the Gulf South: National PracticeOffices Across the Gulf South: National Practice

http://www.david-ware.com/

mailto:[email protected]

What is An H1B Anyway?What is An H1B Anyway?

• It is the principal immigration status It is the principal immigration status available for persons temporarily available for persons temporarily working in professional level jobs working in professional level jobs (“specialty occupations”) in the US.(“specialty occupations”) in the US.

• It generally requires that the employee It generally requires that the employee have at least a four year degree or have at least a four year degree or equivalent AND equivalent AND that the position require that the position require a minimum of a bachelor’s degree.a minimum of a bachelor’s degree.

What is An H1B Anyway?What is An H1B Anyway?

• It is commonly used by international It is commonly used by international students, who are first given a one students, who are first given a one year period of year period of optional practical optional practical training (OPT),training (OPT), if an F student, or 18 if an F student, or 18 months months academic training (AT) academic training (AT) if a J if a J (exchange visitor) student.(exchange visitor) student.

• Ideally the OPT or AT should segue Ideally the OPT or AT should segue seamlessly into the work visa.seamlessly into the work visa.

What Are the Other What Are the Other Parameters of the H1B?Parameters of the H1B?• Employment is limited to the employer(s) who Employment is limited to the employer(s) who

petition(s) for the student. May hold more than petition(s) for the student. May hold more than one H1B at same time.one H1B at same time.

• Employment is generally limited to six years Employment is generally limited to six years with ALL employers (unless employment-with ALL employers (unless employment-based PR begun by end of 5based PR begun by end of 5thth year). year).

• Employment must be directly related to Employment must be directly related to degree program.degree program.

• H1B’s are limited by strict fiscal year quotas.H1B’s are limited by strict fiscal year quotas.• The H1B beneficiary may have “dual intent”.The H1B beneficiary may have “dual intent”.

What Are the Employer’s What Are the Employer’s Obligations in the Process?Obligations in the Process?• Must agree to employ beneficiary as set out in Must agree to employ beneficiary as set out in

the petition (no fraud!).the petition (no fraud!).• Must need the services of the student (no uncles Must need the services of the student (no uncles

with corner stores!).with corner stores!).• Must agree to pay higher of Must agree to pay higher of actualactual or or prevailingprevailing

wage.wage.– Actual wage: wage paid to other similarly employed and Actual wage: wage paid to other similarly employed and

similarly qualified workers at same worksite.similarly qualified workers at same worksite.– Prevailing wage: weighted mean or median wages for Prevailing wage: weighted mean or median wages for

similar positions in geographic area of employment.similar positions in geographic area of employment.– Basically, this means that a Basically, this means that a competitive competitive wage must be wage must be

offered.offered.

Employer’s Obligations?Employer’s Obligations?

• Must be no strike or lockout.Must be no strike or lockout.

• Must notify other workers of terms of job (10 Must notify other workers of terms of job (10 day posting or letter to union).day posting or letter to union).

• Must agree to pay certain fees to USCIS:Must agree to pay certain fees to USCIS:– ACWIA fee: $1500; $750 if 25 or few FT employees.ACWIA fee: $1500; $750 if 25 or few FT employees.– Exemptions: K-12, higher ed, affiliated entities, Exemptions: K-12, higher ed, affiliated entities,

teaching hospitals, non profit teaching hospitals, non profit research research organizationsorganizations and government and government research research organizations.organizations.

– Anti fraud fee: $500. No one exempt.Anti fraud fee: $500. No one exempt.

Employer’s Obligations?Employer’s Obligations?

• Must agree to employ H1B only in Must agree to employ H1B only in geographic location(s) set out in geographic location(s) set out in labor condition application.labor condition application.

• Must agree to pay return Must agree to pay return transportation to country of transportation to country of nationality if H1B terminated (but not nationality if H1B terminated (but not enforceable).enforceable).

What’s Filed and When?What’s Filed and When?

• First is Labor Condition Application. Filed First is Labor Condition Application. Filed electronically with Department of Labor.electronically with Department of Labor.

• Next is H1B Petition, together with LCA, Next is H1B Petition, together with LCA, evidence of qualifications, and description of evidence of qualifications, and description of job, filed at Vermont Regional Service job, filed at Vermont Regional Service Center of USCIS.Center of USCIS.

• If employee maintaining lawful status in US, If employee maintaining lawful status in US, status is changed to H1B, along with family status is changed to H1B, along with family members.members.

• If outside US, or traveling following change If outside US, or traveling following change of status, must obtain H1B visa at US of status, must obtain H1B visa at US consulate.consulate.

What Are the Pitfalls I Should What Are the Pitfalls I Should Know About?Know About?

• Horrible quota problems!Horrible quota problems!– Currently H1B’s are limited to about 85,000.Currently H1B’s are limited to about 85,000.

~58,200 for those with no US earned ~58,200 for those with no US earned Master’s.Master’s.

--20,000 for those with US earned Master’s or --20,000 for those with US earned Master’s or higher.higher.

~6,800 reserved for H1B1 for citizens of ~6,800 reserved for H1B1 for citizens of Chile, Singapore (unused numbers “fall Chile, Singapore (unused numbers “fall back” during first 45 days of new FY).back” during first 45 days of new FY).

Quota PitfallsQuota Pitfalls

• Exempt from the quota are persons Exempt from the quota are persons already counted against it in H status, as already counted against it in H status, as well as persons who work in higher ed well as persons who work in higher ed and affiliated entities, non profit and affiliated entities, non profit researchresearch and government and government researchresearch organizations, and physicians granted a organizations, and physicians granted a waiver of the two year home residence waiver of the two year home residence requirement for J’s. Note that most govt. requirement for J’s. Note that most govt. entities and non profits are NOT exempt entities and non profits are NOT exempt from quotas.from quotas.

Current Quota StatisticsCurrent Quota Statistics

• FY 2007 non-Master’s quota of 58,200 exhausted FY 2007 non-Master’s quota of 58,200 exhausted 5/26/06.5/26/06.

• New non-Master’s quota opened 4/1/06, New non-Master’s quota opened 4/1/06, for for employment beginning on or after 10/1/06employment beginning on or after 10/1/06..

• FY 2007 US Master’s quota exhausted 7/25/06. FY 2007 US Master’s quota exhausted 7/25/06. • Petition can be made for FY 08 numbers Petition can be made for FY 08 numbers

beginning 4/1/07, beginning 4/1/07, for employment to begin on or for employment to begin on or after 10/1/07.after 10/1/07.

• Thus, as soon as practicable after beginning Thus, as soon as practicable after beginning OPT/AT employment, employer and MUST begin OPT/AT employment, employer and MUST begin H1B petitioning process.H1B petitioning process.

Quota Pitfalls?Quota Pitfalls?

Major problem arises when OPT or AT will Major problem arises when OPT or AT will end prior to the beginning of H1B petition end prior to the beginning of H1B petition approval, plus the student’s (60 day) or approval, plus the student’s (60 day) or EV’s (30 day) grace period.EV’s (30 day) grace period.

In years prior, Legacy INS generally In years prior, Legacy INS generally published “gap rule” allowing J’s and F’s to published “gap rule” allowing J’s and F’s to maintain status during this period, remain maintain status during this period, remain in the US, but not work.in the US, but not work.

For several years: NO GAP RULE.For several years: NO GAP RULE.

Quota ExampleQuota Example

• Li Li’s F 1 OPT began May 15, 2006 and Li Li’s F 1 OPT began May 15, 2006 and ends May 14, 2007. She finds a suitable ends May 14, 2007. She finds a suitable job and the company petitions for her job and the company petitions for her H1B on April 1, 2007. Since the FY 07 H1B on April 1, 2007. Since the FY 07 (10/1/06 to 9/30/07) for US Master’s (10/1/06 to 9/30/07) for US Master’s recipients ran out on 7/25/06, her recipients ran out on 7/25/06, her employer asks for a visa number from employer asks for a visa number from the new FY 08 quota for work beginning the new FY 08 quota for work beginning 10/1/07.10/1/07.

Quota QuandariesQuota Quandaries

• But Li Li thus will have a gap in status from But Li Li thus will have a gap in status from 7/14/07 (end of 60 day grace period) until 7/14/07 (end of 60 day grace period) until 10/1/07.10/1/07.

• What’s she to do?What’s she to do?– CAN’T WORK after 5/14/07!CAN’T WORK after 5/14/07!– Apply for change of status to B 2? (logistics issues)Apply for change of status to B 2? (logistics issues)– Apply for change of status to dependant (if Apply for change of status to dependant (if

married)married)– Apply for admission to a new program and new I Apply for admission to a new program and new I

20 for Fall 2006? (money and intent issues)20 for Fall 2006? (money and intent issues)– Leave the US? (all sorts of issues)Leave the US? (all sorts of issues)

Any Solution in Sight?Any Solution in Sight?

• Included in comprehensive immigration Included in comprehensive immigration legislation which has passed the Senate is a legislation which has passed the Senate is a provision to recapture 30K H1B numbers from provision to recapture 30K H1B numbers from each year beginning in 1991. each year beginning in 1991.

• Fees would increase for such recaptured Fees would increase for such recaptured numbers.numbers.

• House has not yet passed such a measure House has not yet passed such a measure because of opposition to legalizing because of opposition to legalizing undocumented workers. H provision may undocumented workers. H provision may pass as stand-alone bill some time in the pass as stand-alone bill some time in the spring.spring.

Pitfalls: Make Sure the Position Pitfalls: Make Sure the Position Requires a Degree, Pays PW, Requires a Degree, Pays PW, Really ExistsReally Exists• Many beginning positions in business do not require a Many beginning positions in business do not require a

degree: eg, sales, management trainee slots.degree: eg, sales, management trainee slots.• Many entry level jobs pay partly or solely on Many entry level jobs pay partly or solely on

commission. Commission or sales bonuses generally commission. Commission or sales bonuses generally cannot be included in the wage computation.cannot be included in the wage computation.

• Beware of “make work” or make believe jobs from Beware of “make work” or make believe jobs from friends or relatives. Pay stubs, W 2’s will be required friends or relatives. Pay stubs, W 2’s will be required when you go abroad for visa issuance, apply for future when you go abroad for visa issuance, apply for future immigration benefits!immigration benefits!

• Also beware of fly-by-night consulting companies Also beware of fly-by-night consulting companies which may “bench” you until they place you in a job.which may “bench” you until they place you in a job.

Analysis: Does Job Require a Analysis: Does Job Require a Four Year Degree?Four Year Degree?• Does the job require the application of theoretical Does the job require the application of theoretical

and practical knowledge typically acquired in a and practical knowledge typically acquired in a relevant four year degree program?relevant four year degree program?

• Has the employer consistently required a Has the employer consistently required a minimum of a Bachelor’s in particular major(s) for minimum of a Bachelor’s in particular major(s) for position? Or is the requirement simply an position? Or is the requirement simply an employer preference? Or is the employer simply employer preference? Or is the employer simply making up the requirement to get you an H1B?making up the requirement to get you an H1B?

• What are industry standards for this type of job? What are industry standards for this type of job? Check ads on internet, DOL’s Check ads on internet, DOL’s Occupational Occupational Outlook HandbookOutlook Handbook..

• Is the salary commensurate with a professional-Is the salary commensurate with a professional-level position?level position?

Pitfalls: Entry Level Business Pitfalls: Entry Level Business PositionsPositions

• Example 1: JoExample 1: Joᾶᾶo is offered a management o is offered a management trainee position at Hometown Bank. He is trainee position at Hometown Bank. He is told by the HR Director that for 18 months, told by the HR Director that for 18 months, he will cycle through all departments of the he will cycle through all departments of the bank, and at the successful completion of bank, and at the successful completion of this period, will become a Mortgage Loan this period, will become a Mortgage Loan Analyst, at a salary of 60K. During the Analyst, at a salary of 60K. During the training period, he will only be paid 25K. Ms. training period, he will only be paid 25K. Ms. HR says that all prior trainees have HR says that all prior trainees have possessed an MBA.possessed an MBA.

• Can JoCan Joấoấo get an H1B to begin his training? get an H1B to begin his training?

Pitfall: Entry Level PositionsPitfall: Entry Level Positions

• Emine is offered a “Sales Associate” Emine is offered a “Sales Associate” position at Needless Markup department position at Needless Markup department store. Her salary will be 20K. She is told store. Her salary will be 20K. She is told that sales associates are often promoted that sales associates are often promoted from within, and that with her academic from within, and that with her academic background (MBA, BS in Fashion background (MBA, BS in Fashion Merchandising), she could soon rise to Merchandising), she could soon rise to Buyer or even Sales Manager.Buyer or even Sales Manager.

• Can Emine get an H1B with this offer?Can Emine get an H1B with this offer?


• Arvind has an MBA and BSME. He is offered Arvind has an MBA and BSME. He is offered a job as “Technical Sales Associate” by a a job as “Technical Sales Associate” by a company which manufactures elevators. He company which manufactures elevators. He is to sell to international customers, as well is to sell to international customers, as well as to assist them with after sale technical as to assist them with after sale technical questions regarding the company’s questions regarding the company’s products. His salary will be 40K. He is told products. His salary will be 40K. He is told that eventually he could rise to Regional that eventually he could rise to Regional Sales Manager or Technical Sales Manager.Sales Manager or Technical Sales Manager.

• Does this offer hold H1B possibilities for Does this offer hold H1B possibilities for Arvind?Arvind?


• Georgi has a wealthy friend who wants to open a Cesare Georgi has a wealthy friend who wants to open a Cesare Paciotti shoe store franchise on Madison Avenue in New Paciotti shoe store franchise on Madison Avenue in New York.York.

• He has known Georgi for several years and is the only one He has known Georgi for several years and is the only one he trusts to run the store. With shoes retailing from $400 to he trusts to run the store. With shoes retailing from $400 to over $1000, the friend wants the highest possible level of over $1000, the friend wants the highest possible level of service for customers.service for customers.

• Georgi will have a build out budget of $1 million; 20 full and Georgi will have a build out budget of $1 million; 20 full and part time employees, inventory worth $1.5 million, and an part time employees, inventory worth $1.5 million, and an annual turnover of $5 million.annual turnover of $5 million.

• Georgi will manage personnel, devise marketing Georgi will manage personnel, devise marketing campaigns, manage inventory, prepare financial campaigns, manage inventory, prepare financial projections, and oversee the entire operation. His salary will projections, and oversee the entire operation. His salary will start at 80K.start at 80K.

• H1B for Georgi?H1B for Georgi?

Pitfall: Checking Out the Pitfall: Checking Out the “Buyer”, ie, the Employer “Buyer”, ie, the Employer Seeking Your ServicesSeeking Your Services• Before the interview: Research the Before the interview: Research the

company. If officers or other employees company. If officers or other employees are listed in literature or on website, are listed in literature or on website, see if there are obvious immigrants see if there are obvious immigrants among high ranking personnel.among high ranking personnel.

• Try to identify, beforehand if possible, Try to identify, beforehand if possible, who will be conducting your interview who will be conducting your interview and his/her function in company.and his/her function in company.

Pitfall: Meeting the “Buyer”Pitfall: Meeting the “Buyer”

• When meeting the interviewer, ask for his When meeting the interviewer, ask for his or her card, if available, and look at it or her card, if available, and look at it carefully. Note the person’s title, and what carefully. Note the person’s title, and what that implies about his or her function.that implies about his or her function.

• You will find that functional managers and You will find that functional managers and others within your area of expertise may others within your area of expertise may have a very different point of view than have a very different point of view than persons with a recruiting or human persons with a recruiting or human resources function.resources function.


• Persons who actually manage or Persons who actually manage or carry out work in your area are carry out work in your area are usually most concerned with the usually most concerned with the applicant’s skills, drive, and ability to applicant’s skills, drive, and ability to really get the job done.really get the job done.

• Recruiters and HR people often are Recruiters and HR people often are more concerned with process, rules, more concerned with process, rules, and “filling holes” in the company.and “filling holes” in the company.


• If the interviewer is recruiter/HR, try to find If the interviewer is recruiter/HR, try to find out who you’d actually be working for or out who you’d actually be working for or who runs the office/division where the who runs the office/division where the opening exists.opening exists.

• In this way, if you are rebuffed, you may be In this way, if you are rebuffed, you may be able to contact the manager directly, or use able to contact the manager directly, or use networking to do so, to try to overcome the networking to do so, to try to overcome the interviewer’s objections to hiring you. This interviewer’s objections to hiring you. This is particularly the case if told “We don’t is particularly the case if told “We don’t sponsor for work visas.”sponsor for work visas.”


• If confronted with “we don’t sponsor”, after If confronted with “we don’t sponsor”, after you identify the function of the individual, you identify the function of the individual, then try to find out WHY.then try to find out WHY.

• Sometimes the individual doesn’t know, the Sometimes the individual doesn’t know, the policy was established by someone “who’s no policy was established by someone “who’s no longer with the company”, etc.longer with the company”, etc.

• If you decide to bypass the interviewer, and If you decide to bypass the interviewer, and try to “go inside” the company, it’s very try to “go inside” the company, it’s very important to know the “why” of the “no important to know the “why” of the “no sponsor” rule.sponsor” rule.

Pitfall: Know Your “Buyer”Pitfall: Know Your “Buyer”

• All companies have different styles, rules, and All companies have different styles, rules, and methodologies with respect to hiring.methodologies with respect to hiring.

• Some Some strictly strictly hire through recruiters/HR.hire through recruiters/HR.• Others hire “top down”; that is, by managers/bosses Others hire “top down”; that is, by managers/bosses

directly identifying/hiring talent, or directing others to do directly identifying/hiring talent, or directing others to do so.so.

• Others hire “bottom up”, by requiring relatively new hires Others hire “bottom up”, by requiring relatively new hires to go on recruiting trips.to go on recruiting trips.

• Finding out how the company recruits is very useful before, Finding out how the company recruits is very useful before, or even during, the interview.or even during, the interview.

• If you decide to try to “go inside” the company after being If you decide to try to “go inside” the company after being rebuffed, this has to be done with great care, and should rebuffed, this has to be done with great care, and should usually be done through contacts you have made.usually be done through contacts you have made.

• But, persistence often pays off.But, persistence often pays off.

Pitfalls: Overcoming “Buyer’s” Pitfalls: Overcoming “Buyer’s” ObjectionsObjections• Employer thinks the process “will get them in Employer thinks the process “will get them in

trouble with immigration” (not unless they have trouble with immigration” (not unless they have otherwise shady practices or lie in the otherwise shady practices or lie in the paperwork).paperwork).

• Employer doesn’t want to reveal financial Employer doesn’t want to reveal financial information to USCIS (IRS has already reviewed information to USCIS (IRS has already reviewed this information; USCIS not a tax enforcement this information; USCIS not a tax enforcement agency; neither you nor attorney need see agency; neither you nor attorney need see information; can be provided in sealed envelope).information; can be provided in sealed envelope).

• Employer thinks they have to pay legal fees (not Employer thinks they have to pay legal fees (not unless this would push employee below required unless this would push employee below required wage).wage).

Pitfalls: “Buyer’s” Pitfalls: “Buyer’s” ObjectionsObjections• Employer thinks “it’s too much trouble, Employer thinks “it’s too much trouble,

paperwork” (a few signatures, a ten day paperwork” (a few signatures, a ten day posting, no advertising; attorney can simplify posting, no advertising; attorney can simplify process).process).

• Employer worries about posting the Employer worries about posting the employee’s wage (post a range!).employee’s wage (post a range!).

• Employer feels they receive enough resumes Employer feels they receive enough resumes from US workers; no need to apply for a from US workers; no need to apply for a foreigner (didn’t they ever hear of the foreigner (didn’t they ever hear of the immigrant work ethic?; try to identify immigrant work ethic?; try to identify immigrants within the company).immigrants within the company).

Pitfalls: “Buyer’s” Pitfalls: “Buyer’s” ObjectionsObjections• Employer worries that sponsorship may Employer worries that sponsorship may

constitute contract of employment (no, but constitute contract of employment (no, but if they’re worried, do a memo of if they’re worried, do a memo of understanding both sign).understanding both sign).

• Employer worries that employee is later Employer worries that employee is later going to ask for PR and leave the company –going to ask for PR and leave the company –they’ve been burned before (Sign a “one they’ve been burned before (Sign a “one way” contract; employee has to repay legal way” contract; employee has to repay legal fees if leaves before a certain date; but fees if leaves before a certain date; but employer retains right to “employ at will”).employer retains right to “employ at will”).

Pitfalls: “Buyer’s” Pitfalls: “Buyer’s” ObjectionsObjections• Employer doesn’t want to pay Employer doesn’t want to pay

ACWIA and fraud fees and wants ACWIA and fraud fees and wants employee to pay them.employee to pay them.

– There are penalties for employee There are penalties for employee payment of ACWIA fee.payment of ACWIA fee.

– No apparent penalty for employee No apparent penalty for employee paying fraud fee.paying fraud fee.

• These fees are less than what the These fees are less than what the employer would pay a recruiter.employer would pay a recruiter.

Pitfalls: Buyer’s ObjectionsPitfalls: Buyer’s Objections

• Employer doesn’t want to pay required Employer doesn’t want to pay required wage and wants to have “side deal” with wage and wants to have “side deal” with employee to pay less or pay part in employee to pay less or pay part in commissions/bonuses.commissions/bonuses.– There are severe penalties, including back pay, There are severe penalties, including back pay,

fines up to $5000 per incident, and prohibition fines up to $5000 per incident, and prohibition from petitioning for any employment based from petitioning for any employment based nonimmigrant/immigrant for up to two years for nonimmigrant/immigrant for up to two years for this practice.this practice.

– Pay stubs, W 2’s are often requested at visa Pay stubs, W 2’s are often requested at visa interviews, and in connection with applications interviews, and in connection with applications for immigration benefits.for immigration benefits.

Are there H1B Alternatives?Are there H1B Alternatives?

• TN (Treaty NAFTA) for citizens of Canada TN (Treaty NAFTA) for citizens of Canada and Mexico only. Occupations listed at 8 and Mexico only. Occupations listed at 8 Code of Federal Regulations Sec. Code of Federal Regulations Sec. 214.6(c) generally require a minimum of 214.6(c) generally require a minimum of Bachelor’s degree. But MBA’s beware: Bachelor’s degree. But MBA’s beware: “Management Consultant” is carefully “Management Consultant” is carefully scrutinized; generally must be scrutinized; generally must be independent contractor. TN given in one independent contractor. TN given in one year increments; requires residence year increments; requires residence abroad (no dual intent).abroad (no dual intent).

H1B Alternatives?H1B Alternatives?

• H1B1 visa for Chile, Singapore: very H1B1 visa for Chile, Singapore: very similar to normal H1B, except similar to normal H1B, except granted in one year increments, granted in one year increments, requires residence abroad (no dual requires residence abroad (no dual intent).intent).

• E 3 for Australian citizens; again very E 3 for Australian citizens; again very similar to H1B; minimum Bachelor’s, similar to H1B; minimum Bachelor’s, dual intent ok; spouses may work.dual intent ok; spouses may work.

H1B AlternativesH1B Alternatives

• E 1/E 2: if your country of nationality has an E 1/E 2: if your country of nationality has an trader/investor treaty with US, investment of trader/investor treaty with US, investment of as little as 50K in a job-creating business can as little as 50K in a job-creating business can mean a visa for life, work permit for spouse.mean a visa for life, work permit for spouse.

• L 1A/L 1B: if you were employed by a L 1A/L 1B: if you were employed by a company abroad for at least a year before company abroad for at least a year before coming to the US, and they wish to employ coming to the US, and they wish to employ you in US; work permit for spouse.you in US; work permit for spouse.

• R-1: possible if job offer has a significant R-1: possible if job offer has a significant religious component.religious component.

H1B Alternatives?H1B Alternatives?

• There are many other nonimmigrant There are many other nonimmigrant visa classifications, some of which may visa classifications, some of which may be appropriate to recent graduates in be appropriate to recent graduates in rare situations. These should be rare situations. These should be explored with an experienced explored with an experienced immigration attorney.immigration attorney.

• If your employer does not have an If your employer does not have an immigration attorney, choose with care!immigration attorney, choose with care!

The Coveted H1B: The Coveted H1B: Convincing the Employer Convincing the Employer

to Sponsorto Sponsor

Presented by:Presented by:David A.M. Ware, attorney at lawDavid A.M. Ware, attorney at law

www.david-ware.comwww.david-ware.com. . [email protected]@david-ware.com800 537 0179800 537 0179

Offices Across the Gulf South: National PracticeOffices Across the Gulf South: National Practice