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Top 3 Mistakes You Must Avoid in Your H-1B Application

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Discover the Missteps that Can Sabotage Your H-1B Visa Approval. In these slides and video, you will learn: ✔The critical facts that determine your eligibility for an H-1B visa and the information you MUST include in your application ✔Common problems that can occur after H-1B approval and how to prepare for and resolve them ✔Tips and tools you can use to manage your H-1B visa process smoothly ✔Important deadlines and timelines you need to know so you can avoid unnecessary delays ✔How to document your company's need for and ability to support the offered position ✔How to properly classify your position to meet Department of Labor wage requirements ✔Updates on the H-1B visa compliance requirements to help you manage your visa properly ✔And more....!
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  • 1. & THOMPSON JANUARY 28, 2016 Top 3 Mistakes You Must Avoid in Your H-1B Application COWLES & THOMPSON, PC
  • 2. Presenters Ann Massey Badmus Attorney at Law Angela M. Lopez Attorney at Law COWLES & THOMPSON, PC
  • 3. • Ask Questions Anytime? • Use your Q&A pane on your screen to type and send your questions. ? • Questions will be answered during the Q & A session.? COWLES & THOMPSON, PC
  • 4. Mistake #1 FAILING TO PROPERLY DOCUMENT AND PROVE ELIGIBILITY COWLES & THOMPSON, PC
  • 5. H-1B Nonimmigrant Visas A nonimmigrant (temporary) visa that allows a non-citizen to be employed in the United States for up to 6 years in a “specialty occupation” for a specific employer (“petitioner”). COWLES & THOMPSON, PC
  • 6. 1 Specialty Occupation 2 Employee Qualifications 3 Employer-Employee Relationship 4 Valid Job Offer and Company 5 H-1B Cap-Exemption COWLES & THOMPSON, PC
  • 7. What is a Specialty Occupation? An occupation that requires highly skilled specialized knowledge and A bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation COWLES & THOMPSON, PC
  • 8. Detailed Job Description Daily duties and percentages of time spent on duties Similar positions in the industry or in your business Proof of Specialty Occupation COWLES & THOMPSON, PC
  • 9. Organizational chart with job descriptions of other positions Expert opinions and reports Professional associations Proof of Specialty Occupation (cont.) COWLES & THOMPSON, PC
  • 10. Proof of Specialty Occupation (cont.) COWLES & THOMPSON, PC Department of Labor Online Wage Survey – www.flcdatacenter.com
  • 11. Employee Qualifications Have completed a U.S. bachelor’s or higher degree (or its foreign equivalent) or Have education, training, or experience in the specialty equivalent to the completion of such degree (3:1 rule) and Possess full state licensure if required to practice in the state of employment COWLES & THOMPSON, PC
  • 12. Proof of Employee Qualifications Diplomas and Degrees Employment Experience Letters Credential Evaluation or Expert Opinion Professional License, if applicable COWLES & THOMPSON, PC
  • 13. Employer- Employee Relationship Employment Contract/Offer Letter Employee Manual/Benefits Summary Performance Review Client Contracts/Work Orders Pay Records/W-2/Work Schedule COWLES & THOMPSON, PC
  • 14. Proving Valid Job Offer and Position Federal Tax Returns Unemployment Tax Reports Organizational Charts Payroll Records Company History COWLES & THOMPSON, PC
  • 15. http://fedgov.dnb.com/webform Validation Instrument for Business Enterprises (VIBE) Program VIBE allows USCIS to electronically receive petitioning company information from D&B Business activities Financial standing, e.g. credit rating Number of employees, both on-site and globally. Relationships with other entities Type of office, e.g. single office Type of legal entity. Company executives. Date of establishment Current physical address. COWLES & THOMPSON, PC
  • 16. H-1B Cap Exempt Categories Employers Universities/Colleges Non-profit affiliates of universities/colleges Government or non-profit research facilities Employment For profit employment at universities or their non-profit affiliated facilities Physicians Physicians who received government-sponsored J-1 waivers of two year home residency requirement
  • 17. Proving H-1B Cap-Exemption Higher Ed Public or Non-profit Associate degree or higher Proof of Accreditation Non-Profit & Affiliated w/Higher Ed 501(c)(3) exemption letter Agreement with Higher Ed, e.g. Clinical Training Supporting letter from Higher Ed Third-Party Employment Agreement with Higher Ed or Non-Profit Affiliate Org Supporting Letter from Exempt Facility Educational or non-profit purpose COWLES & THOMPSON, PC
  • 18. Proving H-1B Cap-Exemption (cont.) As of March 2011, USCIS will honor previous determinations of cap exemption if employer provides: A copy of the previously approved cap-exempt petition (relevant pages of the Form I-129 and pertinent supplements); A copy of the Form I-797 approval notice (issued after June 6, 2006) for the affiliation-based cap exempt petition; or Documentation previously submitted with a petition in support of the claimed cap exemption. COWLES & THOMPSON, PC
  • 19. Mistake #2 FAILING TO OBSERVE TIMELINES AND DEADLINES COWLES & THOMPSON, PC
  • 20. H-1B Numerical Limitations - “H-1B Cap” Quota of 65,000 new H-1B visas per fiscal year (except Free Trade Act (FTA) nationals) 20,000 per fiscal year for persons who hold US Master’s degrees or higher Applies to first-time H-1B or previously cap- exempt H-1B employees
  • 21. February Prepare petition April 1 Apply for H-1B April 7 Lottery cutoff May 1 Acceptance or Rejection Notices July Decision Notices 2017 FY H-1B Cap Timeline
  • 22. Prepare Now Consult with an immigration attorney. Gather necessary documents and information. Prepare and conduct final review of H-1B petition. File H-1B petition on April 1. COWLES & THOMPSON, PC
  • 23. Cap-Gap Timelines for F-1 Students Prevents gap between F-1 expiration and H-1B start date, in most cases. If student has active OPT, can work until September 30, 2016 and remain in U.S. until H-1B decision is made. If H-1B approved, student can continue or resume work using H-1B visa. If H-1B denied, 60 day grace period begins on date of denial. If student has expired OPT and H-1B is filed before expiration of 60 day grace period, student can remain in U.S. until H-1B decision. No work authorization during this period. If H-1B is approved, student can begin work. If H-1B denied, student must leave the U.S. COWLES & THOMPSON, PC
  • 24. H-1B Renewal Timeline Employer must submit renewal petition before current H-1B visa expires. Employee can continue to work up to 240 days after H-1B visa expires as long as renewal petition filed timely. Premium processing available Recommended: Apply for six months before visa expires or request premium processing if H-1B approval is needed for driver’s license renewal, travel plans, or other reasons. COWLES & THOMPSON, PC
  • 25. H-1B Amended Petitions 8 CFR 214.2 – amended petition required for any material changes. You must file amended petition before changes occur. Change in number of work hours, i.e. full-time to part-time Change in duties from one specialty to another Change in place of employment requiring a new LCA per 22 CFR 655.734 Cowles & Thompson, PC
  • 26. Mistake #3 FAILING TO PREPARE FOR INTERNATIONAL TRAVEL AND GOVERNMENT AUDITS COWLES & THOMPSON, PC
  • 27. International Travel Visa Processing at U.S. Embassy (www.usembassy.gov) Administrative Processing Delays Petition Returns COWLES & THOMPSON, PC
  • 28. USCIS Audits Random Selection Unannounced Employer Site Visit Email Demands for Documents COWLES & THOMPSON, PC
  • 29. Potential Consequences of Negative Findings Denial of Pending Petition Notice of Intent to Revoke Previously Approved Petition Revocation of Previously Approved Petition Criminal Penalties Civil Fines COWLES & THOMPSON, PC
  • 30. Preparing for a USCIS Site Visit Step 1 Review the H- 1B petition Step 2 Prepare compliance evidence file for inspector Step 3 Identify company representatives who will meet with auditors Step 4 Establish site visit procedures for reception, clients, and H- 1B employee Employers Take these steps immediately after the approval of your H-1B petition to prepare for a surprise site visit from the USCIS. COWLES & THOMPSON, PC
  • 31. Legal Notice The information provided in this presentation is general in nature and should not be relied upon for specific situations. Because each case is different, you should consult with an experienced immigration attorney for your specific situation. COWLES & THOMPSON, PC
  • 32. Questions? Comments? Assistance? Cowles & Thompson 901 Main Street, Suite 3900 Dallas, Texas 75202 214-672-2000 Telephone 214-672-2020 Facsimile immigration@cowlesthompson.com www.cowlesthompson.com www.ctimmigrationlaw.com COWLES & THOMPSON, PC
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