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January is already upon us, Happy New Year! The first few months of a New Year are always busy ones in our office as companies begin to consider candidates for spring hiring. Despite the economic downturn, we are aware that employers will continue to require the services of highly skilled foreign nationals to accomplish their business goals and objectives. The timing is dictated largely by the academic calendar, but also by the realities of the H-1B visa. As many of you know, the H-1B visa is the most common method for many companies to hire foreign nationals , and the number of H-1B visas that are available has been inadequate in the past few years.
Therefore, we wanted to remind you that new H-1B applications should be applied for on April 1, 2009 for an October 1 start date. While we will make every effort to accommodate any last minute hiring decisions, we urge your company to examine such hiring decisions as soon as possible in the new year. Our office is happy to begin preparing H-1B applications in January, so please do not hesitate to contact us. We also wanted to take this opportunity to refresh our client companies on some of the details of the H-1B visa, as well as other visa status options and changes in the law (such as STEM OPT extensions) which may benefit you in hiring foreign nationals. We hope that this will provide a useful starting point as you examine your spring hiring decisions. However, as always, we encourage you to call or email us directly to discuss any interested candidates. Please see the following:
For employment in the US:
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H-1B: This is for those foreign nationals that will work in a "specialty occupation". The occupation must typically require the attainment of at least a Bachelors Degree in a particular field, or its equivalent, and the foreign national must have a Bachelors Degree or its equivalent. The number of H-1Bs available each year is very limited at 65,000 for the entire country. Please note that as with last year, there is a special allotment of 20,000 H-1B numbers “set aside” for those with applicants with a MS degree or higher from a US university. Nonetheless, last year they ran out in the first week of filing (starting on April 1, 2008) for all available H-1B numbers. In light of this, our office urges your company to consider contacting us as early as January with any anticipated hires that you may want to obtain an H-1B so that we may file on the first available date in April 2009. Please note that despite this early filing date, a new H-1B would not authorize employment earlier than October 1, 2009.
The H-1B “cap” does not apply to certain “exempt” institutions: primarily institutions of higher education and certain non-profit organizations affiliated with those institutions. These employers can therefore file new H-1B petitions at any time.
Another exception exists for those foreign nationals that currently or previously held H-1B status within the past six years with another private employer in the US. Such applicants may not be subject to the number and timing limitation and can “transfer” H-1B’s more quickly.
Finally, citizens of Chile and Singapore have a separate allotment of H-1B “numbers” and these continue to be available for the current fiscal year.
Spouses of H-1B’s are entitled to H-4 status, but this status does not confer work permission. Processing time for those applications filed in April will likely be several months, although a company may elect “premium processing” for faster adjudication (15 days) for an additional $1,000 filing fee. Basic filing fees for this category vary greatly depending on the size of the employer, and how many H-1B extensions (if any) have previously been obtained, but are often over $2,000 for new H-1B cases.
A more detailed overview of the H-1B process may be found on our website at
http://costariccio.com/h_1b_visa_status.html.
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Extension of F-1 Student Employment Authorization “EAD” (OPT) for Students with “STEM” degrees that are employed by E-Verify Employers
F-1 students who have completed a Science, Technology, Engineering, or Mathematics (STEM) degree (bachelor’s, master’s, or doctoral degree) and who work for an employer that has enrolled in the E-Verify program* at that location, may extend the maximum period of OPT (Optional Practical Training) from 12 months to 29 months.
This essentially allows an eligible student to remain in legal (and work-authorized) status long enough to try to file two annual H-1B petitions (in the event that the first year’s application is not selected.) A student must have received a degree in one of the following fields: Computer Science Applications, Actuarial Science, Engineering, Engineering Technologies, Life Sciences, Mathematics, Military Technology or Physical Sciences. The STEM degree list is posted on http://www.ice.gov/sevis. They also be employed with employers currently enrolled and in good standing with USCIS’ E-Verify employment verification program.* Students who wish to extend OPT must do so through their University. Please note that these “STEM” OPT extensions also create additional reporting burdens for both the student and the employer, most notably that an employer is obligated to report to the school within 48 hours after student leaves employment with that employer.
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L-1A/L-1B: L-1status for foreign nationals that have had one year of full-time employment outside the U.S. within the preceding three years with a parent, affiliate or subsidiary of the US company. They must intend to work in the US as a manager or executive (L-1A) or person with specialized knowledge (L-1B). Under the current law there is no maximum number“cap” of L1’s and therefore they may be applied for at any point in the year at which the foreign national has met the requisite year with the qualifying organization abroad. Spouses are entitled to L-2 status and work permission. The USCIS filing fee is $320 (+ $300 if family members). The company may elect “premium processing” for faster adjudication (15 days compared to current processing of several months) for an additional $1,000 filing fee.
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O-1: Available to applicants who have “extraordinary ability” in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who are coming temporarily to the United States to continue work in the area of extraordinary ability. Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. In order to qualify the applicant must furnish evidence to show that he or she has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. The USCIS filing fee is $320 (+ $300 if family members). The company may elect “premium processing” for faster adjudication (15 days compared to current processing of several months) for an additional $1,000 filing fee.
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E-1/E-2: Available to applicants who are nationals of any of the countries with which an appropriate treaty of commerce and navigation exists, who is coming to the U.S. to carry on substantial trade (E-1) , principally between the U.S. and his own country, or to develop and direct the operations of an enterprise in which he has invested (E-2), or is actively in the process of investing, a substantial amount of capital. Treaties which provide for trade and investment (E-1 and E-2 status) exist with France, Germany, Austria, Ireland, Italy, Japan, Korea, Spain, Sweden, Switzerland, and the United Kingdom, among others.
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E-3: Like an H-1B (professional job/ professional worker) reserved only for citizens of Australia. The total number is limited, but this limit has never been reached so availability is not expected to be a problem. Can be processed in the US through a change of status application, or applied for directly at a US Consulate. Spouses are not required to be Australian, and are entitled to work in the US. The USCIS filing fee (if applied in the US) is $320 (+ $300 if family members). Please note that premium processing is not yet available for this category, and there is no “portability” between employers as there is with H-1B’s upon receipt of a petition. Therefore the fastest route to starting employment may often involve having the foreign national travel to a consulate outside the US instead of filing a petition in the US.
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TN (Trade Nafta): Available to Canadian or Mexican citizens that come to the US to work in a specified set of occupations which are listed on the North American Free Trade Treaty. This includes Accountants, Engineers, Scientists, Research Assistants and Scientific Technicians, among others. With very limited exceptions, requires the applicant to possess a Bachelor’s degree or higher in a related field. For Canadians, the initial application can be done at a US port of entry (border crossing point or international airport), as no prior petition approval by the Immigration Service or visa stamp by a US consulate is required for entry. (Mexican nationals, in contrast must plan on obtaining a visa stamp at a US consulate and planning the timing accordingly, before entry in TN status.) For both Canadians and Mexicans, if they are in the US in another legal status they may be eligible to file an application for change of status in the US without the need to travel. This category was recently amended to allow for admission periods in three year increments (as opposed to previously only year by year). Renewable without explicit limit, however, the applicant is deemed to possess only “temporary intent” and hence change of status to an H-1B may be recommended if a greencard is pursued. The USCIS filing fee is $320 (+ $300 if family members), if processed in the US, or less than $100 for Canadians that process at the border.
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For training in the US:
- J-1: Issued to exchange visitors participating in an exchange program approved by the U.S. Department of State as a student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill. J-1 status may be issued for a maximum of 18 months. For private companies, J-1’s are usually brought in to serve as trainees to gain the knowledge of how the US company functions, with the idea to bring this knowledge back to the foreign country at the end of their training program. This visa is strictly limited to training, and is not suitable for employment in the US. Before approving the admission of the foreign national, a very detailed training plan must be written by the host company in the US to evidence that training and not employment will take place. The costs will depend on which private agency is selected to sponsor the training.
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For temporary visits while remaining employed by the affiliate / parent/ subsidiary abroad:
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B-1: Visitors for Business. To allow foreign nationals that are employed by the company abroad to enter the US for a short period (up to six months) to engage in training or other activities that could ultimately benefit the foreign employer. They are not to engage in employment to benefit the US company during their stay, and must only be paid by the foreign company during their stay.
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Visa Waiver Program / Visitors for Business:
Nationals of certain countries can enter without an actual visitors visa stamp under the visa waiver program for the same purposes. Such “Visa Waiver Program” travelers may seek entry to the U.S. for up to 90 days (with no extension of time possible). Effective January 12, 2009, all visitors to the U.S. on the Visa Waiver Program must first obtain an advance “travel authorization” via the Electronic System for Travel Authorization (“ESTA”) via
https://esta.cbp.dhs.gov and submitting the required information. The Visa Waiver program is open to citizens of the following countries: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, United Kingdom, and Uruguay.
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In addition to these nonimmigrant categories, there are several other circumstances under which foreign nationals may obtain an Employment Authorization Document which would authorize them to work for you. Most notably, foreign nationals that have applied for the last step in the greencard process (“adjustment of status”) are eligible for an EAD. These may be granted in one or two year increments and are renewable until a decision is made on the greencard. In light of several year processing timeframes on some greencard cases (especially for nationals of China and India) it is becoming increasingly common for foreign nationals to move to new employers using an EAD card before their greencard is approved. We would always advise a consultation with our office before making such a hiring decision. Nonetheless, in certain cases it can be a viable alternative to applying for a nonimmigrant status such as H-1B for a prospective employee.
Please note that this list of nonimmigrant categories is NOT exclusive. There are some highly specialized categories such as “I” visas for the foreign media, and “R” visas for religious workers, which are not covered here. We simply wish to provide this list to summarize some of the more common options that our client companies may have, as a starting point for contacting immigration counsel. As always, if you have a candidate that you wish to hire, feel free to email or call our office for a complementary evaluation of the visa options and fees. We are happy to make the determination of an appropriate visa category for you after asking some simple questions.
Finally, a reminder for all new hiring, that as of February 2, 2009, the new I-9 Employment Eligibility Verification Form should be used. The new form and instructions (please review carefully as some changes to the acceptable documents have been made) can be downloaded from the Immigration Service website (www.uscis.gov).
[*E-Verify is a free web-based system into which select employee information is input after completion of the Form I-9 record. E-Verify electronically compares information contained on the Form I-9 with records contained in Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to help employers verify identity and employment eligibility of newly-hired employees. Although all employers may use the system, it has become mandatory in some states (not yet in MA) and
will be mandatory for those employers that accept many federal contracts awarded after January 15, 2009 as well as for existing federal contracts which may be modified after that date to include this requirement. However, because of the advantages of STEM OPT extensions, even employers that are not federal contractors may find enrollment in E-Verify beneficial in their hiring decision this year.]
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