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.

 


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2008 Alan Lee, Esq.

 

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