Understanding H-1B and O-1 Options for Post-Doctoral Students
The H-1B visa is a standard work visa for professionals with quotas, limitations, and opportunities for extension. Certain employers are exempt from the lottery system, such as higher education institutions and non-profit organizations. Spouses and children of H-1B holders can benefit from H-4 status, allowing for education and, under certain conditions, employment opportunities. Additionally, other nonimmigrant work visas like E-1, E-2, E-3, and L-1 offer similar benefits for spouses.
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Basic nonimmigrant options: H- 1B and O-1 options for post- doctoral students Eileen Chun-Fruto eileen@chunfrutolaw.com 213-674-0599 1
Basics of the H-1B Know that the H-1B is the standard work visa for professionals o 85,000 & 2 Lotteries (65,000 available H-1Bs each fiscal year plus an additional 20,000 H-1Bs for advanced degree graduates of US universities and colleges) o An H-1B quota number is reserved for you upon petition selection/acceptance Remember that the H-1B is limited to a specific employer, job position, location o You can change H-1B employers but will need a new petition for each employer o Inform your attorney early on if you will change work locations/your job duties change substantially because your employer must report these changes to CIS Given in maximum increments of 3 years but can be less than 3 years depending on length of job offer Limited to 6 years with a few exceptions Can extend beyond 6 years if your green card case has been pending at least 1 year before your 6th year expires 2
H-1B CAP EXEMPTION (Not subject to the lottery) 4 TYPES OF EMPLOYERS: Institutions of higher education Non-profit entities which are related to or affiliated with institutions of higher education: a nonprofit entity shall be considered to be related to or affiliated with an institution of higher education if [t]he nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education . . . for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education. Non-profit research organizations Government research organizations
Spouse and Children Spouse and children eligible for H-4 status o Can attend school either part-time or full-time o Some H-4 dependents may now apply for employment authorization if the H-1B primary visa holder meets certain requirements Other nonimmigrant work visas that allow spouses to obtain employment authorization are E-1, E-2, E-3 or L-1 status An H-4 spouse can also hold separate, independent work visa, such as an L-1A, O-1, or H-1B, in his or her own right An H-4 spouse becomes eligible for an employment authorization document when the H-1B spouse has an approved I-140 or the H-1B spouse has been granted an extension beyond their 6th year H-1B. (Note that the current administration is looking to change the regulation that allows for this benefit.) 4
H-1B Cap Usage FY2012-FY2019 FY 2019 cap remained open until April 7, 2018 190,098 petitions were received FY 2015 - cap remained open until April 7, 2014 172,500 petitions were received FY2014 cap remained open until April 5, 2013 124,000 petitions were received FY 2018 cap remained open until April 7, 2017 199,000 petitions were received FY2013 cap remained open until: o Regular cap: June 11, 2012 o Master cap: June 7, 2012 FY 2017 cap remained open until April 7, 2016 over 236,000 petitions were received FY2012 cap remained open until: o Regular cap: November 22, 2011 o Master cap: October 19, 2011 FY 2016 - cap remained open until April 7, 2015 nearly 233,000 petitions were received (FY 2008 was the last time H-1Bs were capped out in the first week) 5
BASIC H-1B Requirements Need a U.S. Employer o Normally cannot be self-employed o Can be full or part-time o Salary must be prevailing wage for occupation and location o Employer must pay government filing and legal fees o Can have more than one employer but each must file separate H-1B petition Need a Job Offer which qualifies as a Specialty Occupation o Must be Professional in nature o Usually Requires a Bachelor Degreeor higher o Typical H-1B occupations: engineer, scientist, accountant, architect, etc. o H-1B employment starts October 1 of each year 6
How many times do I have to compete in the H-1B Quota? Just once! If you are counted in an H-1B quota then you do not have to compete in the quota for 6 years What if I leave the US before my 6 years are up and want to come back for H-1B employment? You are allowed to re-enter the US to complete your 6 years of H-1B time if you did not exhaust the full 6 year period before leaving the US What happens if I lose my job? H-1B workers now have a 60-day grace period to leave the US or to change employers if they are terminated before the end of their validity period. There are limitations. 7
Basics of the O-1A Visa for Extraordinary Ability in the fields of science, education, business, or athletics Must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of: (A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or (B) At least three of the following forms of documentation:
(B) At least three of the following forms of documentation: ( 1 ) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; ( 2 ) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; ( 3 ) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; ( 4 ) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; ( 5 ) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field; ( 6 ) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media; ( 7 ) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; ( 8 ) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
Meeting the Standard for EA in Science, Education, Business, Athletics The position itself does not require extraordinary ability Extraordinary ability of the individual means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. (8 CFR 214.(o)(3)(ii) Requires an advisory opinion by a peer group (a group or organization which is comprised of practitioners of the alien's occupation). If there is a collective bargaining representative of an employer's employees in the occupational classification for which the alien is being sought, such a representative may be considered the appropriate peer group for purposes of consultation. Different legal standard for EA in Arts and Entertainment and Motion Picture
O-1 Petition Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities A written advisory opinion(s) from the appropriate consulting entity or entities Affidavits, contracts, awards, and similar documentation must reflect the nature of the alien's achievement and be executed by an officer or responsible person employed by the institution, firm, establishment, or organization where the work was performed Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability
Planning ahead for the greencard case If you plan on staying in the United States long-term, need to plan ahead It can take from 2 to 5+ years to obtain Permanent Residence depending on the preference category and your place of birth o Some nationalities, e.g. India and China, have much longer wait times Can have H-1B status for 6 years, but more time is possible IF your green card application is filed before you enter the 5th year o Possible to change to another nonimmigrant visa category after 6 years in H-1B status (if otherwise eligible) 12
Thank You! Presented by Eileen Chun-Fruto Eileen@chunfrutolaw.com 213-674-0599 CHUN FRUTO LAW CORPORATION 155 N. Lake Ave., 8th Floor Pasadena, CA 91101 Disclaimer: This presentation is for general education purposes only and is not intended as legal advice. Questions about specific immigration matters should be presented in confidence to a qualified immigration lawyer. 13
