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Post image for H1B With Cap Exempt and Off Site Employment Issues Approved for Pharmacist Korean Beneficiary and Healthcare Staffing Firm Petitioner in Cleveland Ohio

CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early April to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license.

When our client contacted us, the numerical cap for H-1B visas for fiscal year 2014 was about to be reached. We could not process this case under the regular cap time frame given the short amount of time we had to prepare for the application. Our client was very disappointed and thought they would have to wait until April 1, 2014. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue). At that point our client thought it was impossible to file.

We told our client that we can argue that they are qualified for some of the exemption provisions of the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding their eligibility despite off-site employment.

We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on April 19, 2013 via premium processing.

However, the USCIS California Service Center issued a Request for Evidence (RFE) on May 2, 2013 and requested Petitioner to demonstrate that the prospective places of employment for Beneficiary are truly non-profit organizations under the interpretation of the immigration laws for cap-exempt organizations. After we received the RFE request, our office prepared the response and argued that the prospective places of employment for Beneficiary are non-profit medical research organization and Beneficiary’s work will be similar to Pharmacists of those hospitals.  We submitted the name, address, and contact information of supervisors of each Pharmacy where Beneficiary will be placed.  We filed this Response to the RFE on June 14, 2013.

After our Response to RFE was received by the USCIS, our client’s H-1B application was approved on June 21, 2013.  She can now work for her employer for three years on an H-1B starting June 21, 2013.

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The first step in an employment petition is the labor certification process.

Certifying What

Today this is done through PERM (Program Electronic Review Management), culminating in an online ten-page submission of Form 9089 that is preceded by a bunch of steps in the labor certification process. The PERM labor certification is issued by the Department of Labor (DOL), in which the Employment and Training Administration (ETA) of the DOL, certifies that:

  • There are noUSworkers who are able, willing, qualified, and available to accept the job
  • At the prevailing wage for the particular position being certified
  • In the location (county and state) of the intended employment, and
  • That hiring the foreign beneficiary will not adversely affect the conditions and wages of similarly employedUSworkers

Form 9089

The form is done online at http://www.plc.doleta.gov. Here, employers or, as in most instances, their attorneys, fill out Form 9089. Take note that there are many steps prior to filling out this form, which will be discussed below. The advertising phase takes at least two months. The employer must register for the PERM system and also register their respective attorneys into a sub-account. The information obtained in the advertising phase, particularly the dates and medium of advertisement, are but some of the information needed in Form 9089.

This is a 10 page form (at the time of this writing) that was established on March 28, 2005. This is also savable and eventually filed by hitting a submit button with a pin number that is emailed to you after you register.

You obtain a priority date upon filing PERM. This priority date will be a reference in determining if and when an adjustment of status application can be filed, or if consular processing could be initiated.

This form, upon certification, would then be mailed to you in a hard copy blue textured paper, where the employer, attorney, and beneficiary have to sign. This is then submitted in its original signed form together as one of the supporting documents for the I-140 Petition.

Validity

The Labor Certification is valid for a period of 180 days.

This means that the I-140 must be filed within that time, or else the Labor Certification would lose its validity. It’s actually best to prepare most of the I-140 documents – form, ability to pay documents, foreigner qualification such as degrees and past experience letters – while waiting for the Labor Certification to be approved, so that by the time the Labor Certification is received, you can move on to simply have the respective parties sign and then file the I-140.

The I-140 would then come back with a priority date that coincides with the Labor Certification filing date, which as mentioned earlier, gives you that priority date as point of reference to determining, in conjunction with the monthly Department of State visa bulletin, whether you can file for adjustment of status or initiate consular the immigrant visa consular processing steps.

Pre-Filing and Recruitment

The PERM application itself is an online application of ten pages or so. You fill it out, press submit, and you wait.

But it is not that part that takes the most time. The form itself for practitioners is not the meat of PERM/ LCA applications. But  it’s those steps that precede the actual filing of the application – the recruitment process, plus the registration process.

The registration process involves registering the company for PERM (unless they are already registered). The employer can do one themselves if they are filing it, but most of time, they register and then create a sub-account for the attorney. This results in a user name, passport, and a pin number which would later be used for the last step in fling the PERM application, where you have to enter the pin to confirm submission.

The prevailing wage request is also one of the first steps. You could not even fill out the PERM application itself because a page or so is dedicated to the information you’d obtain from the prevailing wage request.

It’s good to do the prevailing wage prior to the ads, as some of them may require the proposed salary, and you want to make sure the proposed salary is at least equivalent to or over the prevailing wage.

The next steps in the recruitment phase are as follows:

  • Two print advertisements (two consecutive Sunday ads, or one Sunday ad and one professional journal ad if applicable)
  • Job order from the SWA (State Workforce Agency) for 30 days or more
  • On-site job posting for 10 consecutive business days
  • For professional occupations (those that require at least a BS degree), at least three additional recruitment methods from the following ten:
    • Job fairs
    • Headhunter agencies
    • Employer’s website
    • Radio or TV ads
    • Trade or professional journals
    • On-campus recruiting
    • Job posting other than employer’s
    • Employee referral program with incentives
    • Campus placement office
    • Local or ethnic newspapers

The recruitment must occur within the 30-180 period before filing PERM, except for one of the “3 of 10” which can happen within 30 days of filing.

A lot of advertising entities could be hired to do these advertisements, including ADNET (www.adnet.com).

Summary of Steps 

Below is a short step by step summary of the steps for the labor certification process.

  1. Prevailing Wage Request. This is one of the first steps because some of the advertisements would require the wage. You would get the prevailing wage, level, request number, and the code for the position. Take note that you can request a certain code or position, but then the DOL would give you a different one based on the job description you provide. This sometimes is tough because you may be shooting for a Job Zone 5 EB-2 position but they would provide you with a Job Zone 4 position.
  1. Job order.  Can only file 60 days from when the job order is posted. Record the job order date.
  1. Internal Job Posting. This must be signed, must have the DOL address, and must have the date of the postings among other information.
  1. Recruiting. This is where the 2 Sunday Ads (or 1 plus professional journal) plus the “3 of 10 above” (if professional) ads should take place. This could take place earlier also, but it’s good to start with the prevailing wage request to see the required salary for the position.
  1. Registration. Employer should register for PERM. They may also create a sub-account for the attorney.
  1. Form. Employers or their attorneys, while waiting for the “60 day period from the job order or 30 days from the last ad, whichever is later” timeframe, could start filling out the Form based on whatever steps have been done. This would save  time, and allow the preparer to ask the respective parties any information that may be needed for the form itself, such as previous employers and their contact information, relevant details about their past experience and degrees, etc.
  1. Submission. Complete the form, enter pin, and click submit.

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Post image for Tech Giants, Private Prisons Big Players On Immigration Reform

As the country anticipates the overhauling of our immigration policy, different industries are doing its best to influence the specific of the policy. Big tech firms and private prisons are just some of the industries who are vigorously showing their interest in immigration reform.

Big tech firms such as Microsoft, Facebook and Intel want to see an increase in the number of available visas for highly skilled immigrant workers. Also showing great interest in immigration reform are those who build detention facilities housing illegal immigrants in the country. Companies such as Corrections Corporation of America are pushing heavily on lawmakers to take tough stances on the matter.

Although it is tough to track how much each lobbyist would spend for their interests to be heard, it has been reported that Microsoft spent $8 million for their lobbying efforts last year and even contributed $814,645 to President Obama during his re-election campaign. Intel, on the other hand, spent $3.7 million and Facebook didn’t mind spending $3.9 million in their lobbying efforts. These companies filed not less than eight reports.

Source: CNN.Com

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Post image for H-1B Cap Gap Period and Employment for OPT F1 Students (Practical Training)

This is another post in our H-1B series. Other posts are:

We also have a page on our H-1B success stories.

So you’re an F-1 student on Optional Practical Training (OPT). You just came off graduation. You were in this stressful period trying to look for a job. And you got it. Something related to your degree.

So this bought you a year.

You work hard hoping your employer petitions you form an H-1B. The quota was still open when you started in, let’s say, June. You were hoping that they sponsor you for an H-1B in that fiscal year, before the quota closes, while your OPT is still valid.

But that was not the case.

You still work for the employer close to a year a later, still working hard, then finally they decide to petition you for an H-1B on April 1, a couple of months or so from the expiration of your OPT.

You’ve heard of this thing called the cap gap. You wonder what it means. What happens to your immigration status between the expiration of your OPT and October 1?

Below are some FAQs around the topic of the cap gap.

Can I stay in theUSduring this cap gap period? Yes.

What is my status? F-1.

But my OPT card expired, will I get an OPT extension card? If not, what is my proof that my F-1 is extended? You’d have to go to the ISO officer of the school you had your most recent I-20, and have them reissue the I-20 with an OPT extension mark, which essentially extends your F-1 status.

Can I continue working? Yes you can, and you in fact should, because the validity of your OPT is also conditioned on certain periods that you should be working for a company doing a job related to your field or degree.

Okay. I know I can stay and I know I can continue to work, but during that gap, will I continue to get paid, or do I wait until October 1 before I get paid? I often get this question. You should continue receiving your salary from your employer during this period. They are allowed to. Your OPT was extended.

What about my driver’s license, can I extend it? If so, how long? Honestly, that’s the tricky part as some BMV admin people are used to the actual card – EAD cards or OPT / EAD cards. But, and this is a hassle because you have to go there again at some point, they should extend your DL up to at least September 30. Yes, it’s a hassle, because you go through that and pay the fees to get a mere 3 – 4 month extension on your card. But unfortunately that’s the case. I went through it myself when I was on OPT before.

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Post image for On H1B Visa Quotas, Cap, Processing Times, and OPT Cap Gap

A lot of inquiries come our way regarding the dates involved in H-1B petitions, particularly a couple of OPT folks whose employers are petitioning them for an H-1B. Confusions about the filing date, their status upon “approval”, and when the H-1B kicks in are often topics of inquiry. So here are some dates and timeframes. I’ll explain each below.

  • April 1.
  • 3-4 months.
  • Premium Processing.
  • Cap Gap.
  • October 1.

There is a quota every year for H-1B issuances, unless the employer is exempt from this quota, which is another topic in and of itself.

65,000 is the quota, with an extra 20,000 for those with advanced degrees.

April 1 of each year is the first date that an H-1B could be filed (could be sent the day before, as long as it gets to CIS on April 1). From there the quota gets filled. Some 5 or 6 years ago, the quota was filled in a day. In 2009 though, it wasn’t filled until 2010. So it depends on the economy and hiring needs of companies.

The H-1B processing time is about 3 to 4 months regular processing (you can do premium processing and the H-1B will be adjudicated in about a week, barring RFEs). So if an H-1B petition is filed in April 1, approval on average should be July or August.

The confusion starts there.

Other non-immigrant visa change of status applications, including B1/B2 tourist or F-1 student status for example, upon approval, you will be in that particular status. Not for H-1B initial filings (unless there’s an exemption). That’s what confuses people.

For H-1Bs, in initial filing cases, especially for those who are in OPT whose H-1B petitions were filed in April 1 or early in the quota opening, H-1B status kicks in on October 1 even though the H-1B petition was approved earlier. In fact, on the H-1B petition approval (which goes to the employer and / or the employer’s attorney), October 1 would be the start date the H-1B status kicks in even though the “approval date” is earlier.

So what if the OPT expires before October 1?

That’s where the cap gap rule comes in.

The cap gap allows OPTers to remain employed, remain in status, and be permitted to continue getting paid on their OPT jobs. So let’s say you’ve been working for Company A on OPT and Company A petitions you in April 1. Your OPT expires June15. From June 16 to October 1, because of the cap gap (assuming your employer still wants to employ you), you can stay in the US and work for Company A until September 30. Your status will still be under F1.

Then in October 1, your H-1B status kicks in.

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Post image for Possible Start-Up Visas Would be Huge for Foreigners and the US

Foreigners who wish to start up a business in the US can’t do so. They either have to shell out 500,000 or 1 million dollars for the investors visa, or go be petitioned by an employer, be stuck for up to or even over 6 years, get a green card, quit after some time, before they can open up their business. This has been an issue for advocates of immigration reform since a lot of foreigners are entrepreneurial. In fact a big percentage of businesses in the Stats are started by foreigners.

The issue of employment though may provide a common ground for those who used to be against it, and those who are for it.

Employment has been a concern that the U.S.—known by many as the land of opportunity—has been experiencing for years now. For the past few years, the country has had increased employment as one of its goals since more and more citizens are without jobs. And withincreasing population in the country, unemployment is becoming one of its major concerns.

But contrary to what some citizens in the country believe, having immigrants in the country is not always an added problem. In fact, according to a Kauffman Foundation report, those foreign-born entrepreneurial types entering the country could create a huge number of jobs for everybody. This report is backed by what the National Foundation for American Policy reported showing that immigrants co-founded almost half of the top 50 top venture capital start-up ideas for 2011.

With the ongoing overhaul of our immigration system, it should be inevitable that a start-up visa would be passed. It benefits both the ambitious foreigner and the United States as well.

Source: The Next America

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Post image for For H-1B Visas, Is a Bachelors Degree Enough for Approval?

Immigration lawyers often get this inquiry from non-immigrants with a bachelors degree:

“I have a bachelors degree, can I apply for an H-1B?”

Or

Someone from an employer calls and asks:

“My niece (or nephew) has a degree, can I sponsor her (him), I own a store (or a restaurant, or any other business).”

On both instances, the proper answer is “it depends”. I can be technical actually and say the answer to the first question is always no because the REAL PETITIONER IN H-1BS IS THE EMPLOYER, not the beneficiary. In fact the employee does not even sign the I-129 forms.

A degree is just part of the equation. And yes, there is even a provision that allows for “degree equivalence” to be used for H-1Bs if your experience or combination of education and experience is evaluated by an accredited evaluating party as one equivalent to a Bachelors degree in the United States.

A Bachelors degree is simply part of the equation.

An H-1B analysis involves some sort of a triangle that has to be interconnected.

One. The Company.

Two. The POSITION. The most important part.

Three. The degree.

The focus is often on one and three, but to me, it is the position that is important.

The main inquiry: Does the position require the bachelors degree (or the advanced degree) that the beneficiary has?

Okay, let’s take the restaurant example.

Does a small restaurant with 3 employees really need the manager to have a bachelors degree? Can we prove it?

What about a restaurant with more employees but with just one branch, but which holds several banquets and mini-conferences?

What if other similarly sized restaurants (in size and scope) require a bachelors degree, can we use that as an argument?

And so you go through that same inquiry for each entity and each position and each degree for every situation. So oftentimes, even if the employer wants to petition someone, and if that someone has a bachelors degree, the inquiry does not stop there. The kind of business, the kinds of position, and the kind of degree must all relate to each other.  It’s that connectionwhich determines the plausibility of a certain H-1B petition.

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Durbin: Odds Are Good for Immigration Reform

by JP Sarmiento on January 24, 2013

Post image for Durbin: Odds Are Good for Immigration Reform

On the advent of President Obama’s reelection inauguration, Senator Richard “Dick” Durbin stated that he was optimistic the Senate might pass a comprehensive immigration reform bill. Senator Durbin holds substantial influence in the Senate, as he holds the Senate Majority Whip position, the second highest position in the Democratic Party leadership in the Senate.

The possible immigration bill might have the DREAM Act included. If this happens, college in the U.S. will soon be affordable for illegal immigrants who have always wanted the opportunity. Work permits will also be possible for a lot of illegal immigrants who qualify, which could allow them to obtain driver’s licenses, state IDs, and social security cards.

Durbin even believes that Republicans might already be rethinking their position on immigration. The 2012 election could be the reason why the realization came about. The support of the Hispanic community and Republicans is very important in any possibility of immigration reform. The result of the previous election shows how votes from the Hispanic community can have an impact, and the value and influence immigration reform has on the elections.

Source: NBCChicago.com

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U.S. Immigration Policy Hurting Entrepreneurship

by JP Sarmiento on January 14, 2013

Post image for U.S. Immigration Policy Hurting Entrepreneurship

Forbes recently had an opinion article by Bill Aulet and Matt Marx addressing how  US Immigration Policy is hurting entrepreneurship. The article was based on their thoughts on their students in MIT, one of the premier universities in the world. They in particular drew from what they saw from the opportunities or lack thereof for the international students.

In their entrepreneurship class at MIT, many of the students are international, and they need theU.S.government’s permission to work in the country. They will be left with two options; leave theUnited Statesand build their company back in their home country or look for a company who can sponsor them to get a shot at an H-1B visa. These options will not allow these students to start their own company in theUnited States.

Although Bill and Matt believe that these non-U.S. citizen students may hope to get their visa extended for “optional practical training”, the chances of them getting their H-1B visa so they can start their company to grow big enough to be recognized as a legitimate enterprise are not that great.  They have to work for someone first, and they can only hope that the employer who hires them would eventually petition them not just for an H-1B visa, but eventually also for their green card. Should they get their green card later on and quit the company after at least 6 months, only then can they start their business. That whole process, from graduation to eventually putting up a business, could take over 6 years.

Bill Aulet and Matter Marx pointed out that not all innovation-driven entrepreneurs are born American citizens. There are students, like those at MIT, who are potential drivers for economic prosperity and can create more job opportunities in the country. But the current immigration policy is hurting the chances of these promising, non-U.S. citizens.

USCIS Director Alejandro Mayorkas addressed a group of MIT students and promised to aid entrepreneurs as much as possible even with the existing strict immigration laws and policies.

Bill Aulet and Matt Marx believe that it would help the USCIS to aid foreign entrepreneurs if they consider three things; consider the potential of immigrants to build companies and job opportunities, appreciate their talents, and understand the advantages of startups on how they move fast and more responsively to economic challenges.

Source: Forbes.com

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2012 Showed an Increase In Immigration Audits

by JP Sarmiento on December 27, 2012

Post image for 2012 Showed an Increase In Immigration Audits

The U.S. Immigration and Customs Enforcement have increased their efforts in auditing companies who have illegal immigrants on their payrolls. Those companies who have been caught have been issued severe fines. From 2009 to 2012, the total amount of fines have already increased by almost $13 million; which is a far-cry from the $1 million average prior to 2009.

As much as the U.S. government would want to improve the country’s immigration system, advocates are not as happy about this trend. One of the impacts of these audits is the unavailability of workers for certain jobs.  Mass layoffs have already happened for several companies and outsourcing has been a priority for some, leaving many US workers unemployed anyway.

Source: JournalNow.Com

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