Alan Lee's Talk At Rutgers University On January 27, 2008 - H-1B
Issues (Part 1 of 6). Published in Sing Tao Weekly on 2/17/08
By Alan Lee, Esq.†‡
(The following is an edited version of the talk given by Alan
Lee, Esq., before the Rutgers University Chinese Students and Scholars
Association on January 27, 2008. Most changes were made to improve
the readability of the talk)
Good afternoon. Thank you for taking the time to come out here
for this talk. Thank you also to the Rutgers Chinese Students and
Scholars Association and Mr. Cheng Gao for inviting me today. I'd
like to talk about H-1Bs, labor certifications, national interest
cases, and outstanding researchers and professors.
Do you know what is the coming difference between an immigration
lawyer and a tax accountant? Does anybody know? [Audience members
says "Lawyers make more money". Laughter]. That's very
good. The other answer is because the majority of many immigration
lawyers' work will be done by April 15th for every year that we
keep the annual cap of the H-1Bs. I assume that I'm talking to mostly
students who have either graduated with one degree or not graduated
or are going for Ph.D.s and wish to stay here after the time of
their graduation. The first thing that happens is that you are offered
a period of optional practical training for you to stay here for
another year. And during that one year, you of course try to find
a way to stay unless the situations in your home country are desirable
for you to go back. Usually the way that people stay is through
the H-1B. Now we have a problem with the H-1Bs and that is that
U.S. immigration policy does not allow enough of them. In the past,
we have had open quotas for H-1s, and then we started having the
closure of the H-1Bs. At a certain time, we had about 115,000 per
year, and now of course the number has gone down drastically.
Now, what is an H-1B? An H-1B is a specialty occupation visa, and
a specialty occupation is one that requires theoretical and practical
application of a body of highly specialized knowledge in fields
of human endeavor including, but not limited to, architecture, engineering,
mathematics, physical sciences, social sciences, medicine and health,
education, business specialties, accounting, law, theology, and
the arts, and which requires the attainment of a bachelor's degree
or higher in a specific specialty, or its equivalent, as a minimum
for entry into the occupation in the United States. My favorite
analogy on an H-1 is that you cannot have a professor cleaning out
a broom closet and saying that this is an H-1B occupation. Neither
can you say that an individual who is going to be teaching college
classes is qualified if all he has is a grade school diploma. You
need to be able to match the degree to the field of endeavor. There
are H-1B applications that are recognized as having no problems
- an accountant in the accounting field; an architect in the field
of architecture. A questionable case, however, might be an accountant
who is doing market analysis; or an architect who decides that he
wants to be a programmer. And when I say he, I'm sorry, I really
mean he or she. I mean, don't take it the wrong way, ladies. It's
just easier if I use one pronoun. Now there are problems with people
who do not have degrees from four year colleges. For example, if
you have a degree from a three year college. What to do? In that
case, you might have to have added experience. To Immigration, three
years of experience = 1 year of education. So if you have a person
who has three years of college and three years of experience, that
might make out a four year degree in the field to Immigration. By
the same token, if you come back to the prior example that I gave
of the accountant who is doing market research analysis, perhaps
if he had experience on top of the degree, that combination might
qualify him for the job in question for H-1B purposes. In the past,
we have managed these type of situations which are not clearly eligible
but in which the people had experience in addition to their schooling.
I recall one in which the person had a degree in one field and wanted
to go into another field and another year or two of experience in
the other field. We were able to tell Immigration successfully that
the person qualified through the combination.
What about the employer's qualifications? You can have that same
accountant with the bachelor's degree in accounting, and he comes
to me and says, "Mr. Lee, I'd like to do my H-1B with a trading
company with two people in it and I'm going to be the third."
Normally I would tell that person that he is going to have a problem
with Immigration because the company is probably not qualified even
if the trading company has about a million dollars in sales and
net income of approximately $50,000. Immigration may say "We
don't really see it. We don't see the need for you to hire an accountant.
Why don't you just go out and hire an outside accountant where you
can pay him $2000-3,000 a year to take care of your accounting instead
of paying $20,000 or $30,000 to work part time/full-time - it just
doesn't make a lot of sense." And so these are some of the
things that we have to take into account when we start to think
of whether the people are going to be able to make it with their
H-1Bs. We like people to be able to make it with their H-1Bs. Why?
Because among other things the cost. It is very high these days.
If you have a company with 25 or less full time employees, the total
cost to Immigration is $1,570. That's just the filing fee. And if
you have a company with 26 and more full-time employees, that's
$2320 that goes to Immigration. No one really wants to fail with
that type of case. The other situation that we see is the person
that comes and says, "Mr. Lee, I'd like to incorporate my own
company and for that company to sponsor me for the
H-1." Well, the first thing that I would tell him is that that
is not a qualified situation because an H-1B is supposed to be for
an employee and not for an owner to sponsor himself. Then the person
says that "Gee, I don't have to have part of the stock myself;
my friend can have the stock. Then we come back to the other question
- how are we qualified with one, two or three employees, and the
answer usually is "no". Of course, we do have some situations
that we like that are small. For example, a computer person who
might be working in a computer consulting company with only five
people in it. That is a situation that looks OK. How about that
accountant in an accounting firm with three or four people in it?
To Immigration, that probably looks OK. They can see that these
are the types of cases that make sense. Other than that, some of
these other cases - they don't make an awful lot of sense at all.
Now we move on to the cap issue. As we know, there are not a lot
of H-1Bs out there. What is the number for 2008? Actually, we don't
know yet. We know that bachelor's and anyone else except U.S. advanced
degree holders have somewhere in the area of 65,000. But we don't
know really exactly how many. I can tell you that last year it was
65,000 minus the 6800 that had to go to the Singapore/Chile Free
Trade Agreement people (those are the H-1B1s) plus the amount that
they gave back because the Singapore/Chile people only used up about
a thousand. So what was the equation? Last year, it was 65,000 -6800
+ 5800, and that was a number of people who got new H-1B visas except
for advanced degree holders on October 1, 2007. I would assume that
this year we're going to see about the same thing because there
are not a lot of people who were applying under the Singapore/Chile
FTA. Other than that, there are another 20,000 that go to U.S. advanced
degree holders - people with master's or Ph.D. degrees from the
United States. This is not a Ph.D. or a master's degree from China.
[inaudible question from the audience]. Just the United States.
So if you have a masters or Ph.D. from Mexico, that's not going
to help. Where are we insofar as the cap is concerned? Obviously
you want to put in your H-1 paperwork right on the first day. That's
April 1st. For your information, that's Tuesday. I mean, you have
to be aware of these things. It's a Tuesday. As everyone knows,
last year everything was sold out on the first day. If you waited,
you had no chance at all unless you were a U.S. advanced degree
holder. Immigration just put the cases in the electronic barrel,
spun them around, and picked out numbers. Luckily we got most of
our people in, but I along with every other lawyer in town and elsewhere
who do a sizable number of H-1Bs missed some people. If you only
did one or two H-1Bs, you might have got them in, but if you did
a number of them, in the electronic spin barrel you weren't going
to get all of your people. For masters degree holders, looking at
the way that it's been going in the past - two years ago, the cap
was good until July 26th; in 2007, it only lasted until April 30th.
So where is it going to be this year? Well, you can see that the
time is growing shorter, and so the advice of course is to file
on April 1st. It may be that the cap will hold up for a week, maybe
two weeks. But if you're thinking that it will last another month,
you're probably mistaken.
What filings are exempt from the cap? Universities are nice. If
the university is going to hire you, that's exempt. Also nonprofits
that are related to institutes of higher education; government research
organizations; and nonprofit research organizations. Those are all
good. If you're being sponsored by one of them, you don't have to
worry about the cap. Other people who are exempt from the cap are
people who already have an H-1 and are extending or transferring
to another organization. Also there's a little quirk that Immigration
is thinking of correcting later this year involving persons working
for institutes of higher education or other exempt organizations
and then decide that they want to take concurrent employment with
an outside organization that is cap subject. In the meantime, that
application can still be done.
What do you do if you miss the cap? Try again next year? [Laughter].
If you miss, a lot of people go back to school. For example, they
take on another degree program. Other people try to take other avenues.
If they're really good at something, they can maybe qualify for
an O-1 (outstanding type of person). Some people might be hired
by an organization that wants to send them out of the United States
for about a year to their related operations and then bring them
back under an L-1. An L-1 is not cap subject, by the way. L-1s are
for intracompany transferees - a company hires you and then says
to you, (because this is becoming more common) "We like you
but there's no H-1B cap this year - how about if you work for us
a year in Singapore and then afterwards we bring you back under
an L-1." That might work out. So it's not the end of the world
if you miss the cap.
The filing process. When should the employer file? Well, that's
April 1st. I'm just following the outline (the outline was given
to audience members before the talk and is available on our website
at www.Immigration@AlanLeeLaw.com). The employer should file all
cases on April 1st if possible. With the U.S. advanced degree holders,
they may be able to a hold on for a little while but certainly not
long. Use of private couriers? We strongly encourage all employers
to use them. Using other types of organizations like the U.S. Post
Office - that's not guaranteed to get your package there on time.
The two day rule for April 1st: Immigration's rule for April 1st
is that if the entire quota is filled up on April 1st, then it will
take in all of the petitions that it receives on April 2nd, and
put them all in the same barrel. That's probably because they think
that some people might be using the U.S. Post Office and might not
be able to get their packages there on April 1st. What should the
employer file? The employer has to file all the forms, the H-1B
data collection sheet, I-129, I-129 supplement for H-1s, copy of
the labor condition application (LCA), qualifications of the person,
company letter describing what the job is all about, stuff about
the organization itself (that might be very helpful to Immigration
in its determination), and proof that the person is in status -
possibly a copy of the I-94, I-20 forms, and practical training
card. What happens if you miss the form? Well, you missed the case.
Because if you miss the form, Immigration will probably send the
case right back to you. And if they send it back to you, that's
the end of the case given the time sensitivity of the H-1Bs. What
happens if the case is missing documents? If you're missing documents
such as a transcript, diploma, or I-94, Immigration will probably
send a request for further information to the employer asking for
the stuff instead of denying or rejecting it. That's usually not
the death of the case. What about the effect of a missing signature?
It gets bounced right back to you. I mean, Immigration is not going
to take any cases in which the petition forms are not signed by
the employer. And so if the employer is missing the signature on
the I-129 or one of the two signature places of the I-129 supplement,
that case of course is going to be returned.
Why should an employer not allow applicants to do an H-1B application
by themselves? Liability, that's why. A lot of students and others
persons, they think to themselves that they might be able to skip
the attorneys fees if they do all the work themselves and let the
employer sign all the papers and and just file it in. Well, what's
the problem? The problem is always employer liability when this
is done. Usually the only thing that applicants are able to do is
to find the prevailing wage for the area and stick it in there,
complete the LCA and get it certified, and send it with the H-1B
paperwork. However, what happens if the employer was actually an
H-1B dependent company? Such a company is one that has up to 25
employees with 8 H-1Bs, or 26-50 employees with 13 H-1Bs, or 50
+ employees with 15% H-1Bs. If that's the case, then the employer
has to actually recruit for the job. If recruitment is missing,
that is a violation of the LCA provisions. That puts an employer
under possible fines and penalties. They could be both civil and
criminal. Other things that have to be done in an LCA - if a person
trying to do it himself finds the prevailing wage in the area, did
he find the prevailing wage of the company? Because the Labor Department
is not only looking for the wage outside, but the average wage for
the occupation inside the company for the a job that the H-1B is
going into. If you're getting paid less than other people in the
office who are doing the same job, that may be a violation. Also
what about documentation of the dates of posting? Most people who
are doing their own H-1s -- they don't do that. Is there a package
for public examination? Usually there's not one. And so if the Labor
Department walks in and asks the employer, "Where's the package?",
and the employer just shrugs and produces nothing, then the employer
has a lot of liability.
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