Category: Employment visas

How Do I Find an H1b Employer?

How do I find an employer who’s willing to sponsor me for an H1B employment visa?

Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. We get this question a lot. We’ve a lot of foreign nationals who are either working or are going to school and about to graduate and they wonder, “How can I find an employer who’s willing to sponsor me for a work visa?” Of course you have to recall that generally foreign nationals are not allowed to work in the United States, but there is a visa called an H1B employment visa that’s available for people that work in specialty occupation. One thing to keep in mind is that not every job is eligible for a work visa. You have to have a degree in most cases or a very high set of specialized knowledge, but generally that’s going to be reflected in a bachelor’s degree or a master’s degree and you are going to have to be in a field that generally requires a degree in that field. So not every job has the eligibility for an H1B visa.

But let’s suppose that you’re working in a field that does qualify for an H1B and you want to find an employer who’s willing to sponsor you. I think the biggest thing to keep in mind is that the H1B process is hard, it’s expensive, and it’s complicated. A lot of employers haven’t been through the process before, so if you are a foreign national and you’re going to need an H1B employment visa, that might be a lot for employers to overcome or to get their mind around all the hoops and hurdles that they have to jump through in order to get you an employment visa. What I like to tell people is that you should look to see where people have sponsored before, and you want to find employers who are willing to sponsor you for an H1B. The way I think that you do that is you find people that have sponsored for H1B visas before. They’ve been through the process. They know the hurdles. They know the headache, and if you’re an outstanding enough candidate, they’re going to be willing to do it for you.

The way that I tell people to find that is a great website called myvisajobs.com, www.myvisajobs.com. If you go to that website you can search by company names, you can search by geographical regions, you can search by job, and you can see who has sponsored people in my field for an employment visa. It’s really a great tool. There is a basic version that’s free, and there’s an expanded version if you subscribe. You can find all the employers in your area who sponsored in your specific field. I think this is really important, it really cuts down on you wasting your time with an employer who may not be willing to sponsor you. Sometimes employers just don’t want to do it. They throw their arms up and they say, “We’re not doing it.” I think you’re really banging your head against the wall if you’re trying to start from scratch with an employer who’s never been through it. It’s not to say that it can’t be done but I just think your chances are going to be much greater.

You might also consider downloading our free book and you can get that. It’s called the “Staying Here Book.” It’s a guide for foreign nationals on how to find a job, and it really provides a lot of the tips and tricks that we like to tell our students and people who are interested in staying in the United States. You can download that for free. If you go to www.stayingherebook.com and you can download that book for free.

Definitely make sure that you’re searching in the right areas, make sure that you’re networking, find out from your friends what employers are sponsoring, find out from other people in your industry. You want to follow them on LinkedIn. You want to connect with them on social media. You want to see who are the movers and shakers in your field, and you want to learn a way to get to know them. You don’t necessarily want to bum-rush them for a job in particular, but instead to ask them what are the trends you’re seeing in the industry, who are the people that hiring, do you think it makes sense for me to reach out to this person or that person. You really want to have a network of advisors who are not people that necessarily are going to hire you, but are willing to give you good advice and to let you know about the field.

If you have any questions about this, about the H1B employment process, or about how to talk to your employer about sponsorship for an H1B, be sure to give us a call at 314-961-8200. You can download that book again at www.stayingherebook.com or you can email us at info@hackinglawpractice.com. We’ll be sure to get back to you. If you liked this video, please click the like button and share it with your friends. Also if you want to get updates as to our YouTube channel or Facebook videos, make sure you subscribe so that when we update with new videos, you’re the first one to know about it. Thanks a lot. Good luck with the job search. Have a great day.

USCIS Announces Steep Filing Fee Increases

The United States Citizenship and Immigration Services USCIS has announced an increase to many of the fees associated with filing for immigration benefits in the United States.  This is the first fee increase in six years.

The increase goes into effect on December 23, 2016.

The average fee increase is 21 percent.

The biometric fee for all applicable applications will remain $85.

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Naturalization and Citizenship

The cost to naturalize (N-400) in most cases will increase from $595 to $640 (with the biometrics fee, this amount will be $725).

One slight tweak to the filing fee requirement is that applicants with income greater than 150% but not more than 200% of the federal guidelines will pay a reduced fee of $405, including biometrics.

The naturalization fee waiver will remain available to lawful permanent residents who receive public assistance or have incomes under 150% of those poverty guidelines.

The fee for form N-600, the application for a certificate of citizenship, will increase almost 100% – from $600 to $1170.  This form is generally used for lawful permanent residents who became citizens as a matter of law, usually because their custodial parent became a citizen before they turned 18 years old.

Family-Based Immigration

The fee for an I-130 relative petition, which includes spouse petitions, will increase from $420 to $535.

Adjustment of status (I-485) application fees will go up from $985 to $1140.  So with biometrics, the total adjustment of status fee will go from $1140 to $1225.

Applications for a travel document (I-131) will increase a lot – from $360 to $575.

Employment-Based Immigration

Petitions for non-immigrant workers in the H-1b category will increase from $325 to $460 (in addition to the $750/$1500 training fee and $500 fraud prevention and detection fee).

Non-immigrant visas in the L category will also increase to $460 with the $500 fraud prevention and detection fee).

A petition for an immigrant worker for an immigrant visa (green card) – the I-140 – will increase from $580 to $700.

An application for employment authorization (EAD), the I-765, will increase from $380 to $410.

Silicon Valley University Stripped of Ability to Recruit Foreign Students

Last week, Immigration and Customs Enforcement revoked authorization previously extended to Herguan University for recruiting international students.  The Silicon Valley university has been popular with foreign students from India.

ICE estimates that the school has 240 foreign students, 180 of them from India.

Herguan University is a for-profit university.

herguanu1

Last year, former Herguan University Chief Executive Officer pleaded guilty to filing false immigration documents with the Department of Homeland Security.  He served time in a California prison after pleading guilty to submitting more than 100 false documents to DHS while enrolling international students.  He also paid a fine of $700,000.

Students enrolled at Herguan have until January 11, 2017 to either leave the U.S. or transfer to another college or university.  If one of those actions are not completed in that time period, the students’ records will be terminated in the Student and Exchange Visitor Information System and they will be considered out of status.

Students who have not yet entered the U.S. will not be admitted into the U.S. with the Herguan-issued Form I-20.

ICE is requiring Herguan to notify each of their active and inactive students of the school’s loss of the ability to issue Form I-20s.

In March of 2014, a federal jury convicted the head of another for-profit California university – Tri-Valley – on charges of visa fraud, money laundering and harboring an alien.  Susan Su allegedly charged foreign nationals millions of dollars in exchange for false documents that would allow the students to stay and work in the United States.

With this university being located in Silicon Valley, we suspect that the university was really a front to provide IT workers to tech companies in the Bay Area.  With the high demand for talent and the limited number of legal options – namely, our nation’s broken H-1B visa program – it appears that some of the students at Herguan were probably working through the Curricular Practical Training program.  It seems likely that the students were not fulfilling all of their educational requirements associated with their F1 student visas.

Students who have questions regarding Herguan University are advised to contact an immigration lawyer and/or the SEVP Response Center (SRC) at 703–603–3400.

 

 

 

What does USCIS mean when they say that a job must be in a specialty occupation for an H1b visa?

One of the first things that you should know about H1b visas is that not all jobs qualify for H1b employment visas.  
 
In order for an H1b to be available, the job must be a specialty occupation.

What is a specialty occupation?

Specialty occupations require a theoretical and practical application of highly specialized knowledge.   This typically involves a showing that the position requires a bachelor’s degree or higher, that such a degree is common in the industry, that the employer normally requires such a degree, and that the job duties are so specialized that the requirements of the job are usually associated with that degree.  The employee’s background and qualifications must also track the job duties in the offered position.

Visa

The foreign worker must either:

  • (1) hold a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited institution;
  • (2) possess a foreign degree determined to be an equivalent to a U.S. bachelor’s;
  • (3) have any required license to practice the occupation (like an architect, surveyor or physical therapist); or,
  • (4) have education, specialized training, or progressively responsible experience that is equivalent to completion of a U.S. bachelor’s degree and have recognition of progressively responsible expertise through job promotions within that field.

The U.S. Citizenship & Immigration Service sometimes requests additional evidence that the position sought qualifies for the specialty occupation classification.  These requests for evidence can be long, burdensome and very specific.

The best way to minimize the chances of a request for evidence on the specialty occupation issue is to provide documentation with the initial filing that the job is properly considered a specialty one.  This can involve affidavits, surveys, letters from similar employers and other evidence from industry hiring customs.

If you are wondering if your occupation qualifies as a specialty occupation, feel free to email us at info@hackinglawpractice.com or call us at (314) 961-8200 and we’d be happy to set up a time to discuss. 

Convictions in Texas H1B visa fraud case

A pair of brothers that hired H-1B workers have been found guilty of breaking federal law on November 12.  The six day long trial took place in the U.S. District Court in Dallas.  The brothers, Atul Nanda and Jiten Nanda, are each facing conviction of one count of conspiracy to harbor illegal aliens and conspiracy to commit visa fraud and four counts of wire fraud.  Dibon Solutions, an IT consulting group owned by the Nanda family, is involved in the case.  Their indictment was filed by the United States in 2013.  

They could potentially face 20 years in prison and fines up to $250,000.  Their sentencing date has yet to be set.  

The U.S. claimed that the Nanda brothers had recruited foreign citizens and represented H-1B visa workers with the intention of working at Dibon Solution’s office in Texas.  They went on to say they “did not have an actual position at the time [the foreign workers] were recruited,” and that the employees actually were providing their services to third-party companies.  

DOJ

The government further said, “paid for time spent working at a third-party company and only if the third-party company actually first paid Dibon for the workers’ services.”

“The conspirators falsely represented that the workers had full-time positions and were paid an annual salary, as required by regulation to secure the visas,” the government said about the conviction.  

The investigation was conducted by the U.S. Department of Homeland Security, DHS’s Immigration and Customs Enforcement Agency, and the U.S. Department of State.  The government claimed that Dibon Solutions were given “a labor pool of inexpensive, skilled foreign workers.”  This scheme was found to be profitable.  They went on to say, “required minimal overhead, and Dibon could charge significant hourly rates for a computer consultant’s services.”

The Nanda brothers “earned a substantial profit margin when a consultant was assigned to a project and incurred few costs when a worker was without billable work,” said a government report.  

No such thing as an H1B transfer?

There’s no such thing as an H1B transfer.

What?

I am Jim Hacking, immigration attorney practicing law throughout the United States and based here in St. Louis Missouri. We have a lot of visitors through our website and people who send us emails or call the office wanting to know how to transfer their HIB from one employer to another. We also get contacted by employers who want to hire someone who already has an approved HIB. We felt we’d make this video to clear up some of the misconceptions between the whole HIB transfer issue. The reason I put the transfer in air quotes is because there’s not truly a transfer. You’re not transferring anything from one employer to another. What is really happening is a new HIB visa is being applied for.

Why is this important and how does this impact the international worker? Well, you’re probably familiar with HIB lottery. Every year, too many people applied for not enough visa. In 2015, there were 225,000 visa applications for only 85,000 spots. We’re talking now about the cap-subject HIB visa. HIB visas for the most part if you’re working outside of an institution of higher learning, if you’re working for a private employer, you’re going to be subject to the cap. People who make it through the cap and get an approved HIB, they hold something that’s very valuable. Sometimes those people with valid HIB visas want to transfer their job from one employer to another. They want to know if they can bring their HIB visa with them and more importantly do they have to go through the lottery.

That’s the real thing that’s different about someone transferring in. They’ve already made it through the lottery. That spot that they hold transfers with them and that’s why the HIB is very valuable for them. If an employer comes across someone who has an approved HIB and is working for another employer, they can file a new I-129 petition to get a visa for the person. They still have to go through all the processes and paperwork that are attached to an HIB. In many ways, the HIB transfer is a whole new HIB application. The only difference being that they don’t have to go through the lottery. They don’t have to wait until April 1st to apply. They don’t have to wait until October 1st to start.

If you’re going from a cap-subject employer to another cap-subject employer and you’ve already been approved for an HIB, then you’re going to be able to “transfer” that visa from one employer to another. Now one thing to keep in mind is that a lot of times employers who sponsor people for HIBs will have employment contracts. There will be language in the contract that may or may not govern the transfer itself or the leaving of the employee from the first employer to the second employer. You need to be very careful about that and you need to talk to an attorney in your state that can help you interpret the contract that you may have signed associated with your HIB visa. Putting contractual issues to the side for a minute, you do have the ability to take that HIB visa with you.

An HIB transfer is something that has a lot of appeal to employers too because that freeze them up to find workers during the course of the year when they maybe particularly busy. They may need to hire someone in a pinch. If someone has already gone through the process of getting an HIB, then in many ways, they’re way ahead of the game because the employer only has to go through the paperwork of filing. That filing entails filing a whole new LCA with the Department of Labor. That takes about 10 days. Then if the employer is smart and pays for premium processing, they should be able to get all their paperwork through the immigration service in about 3 weeks or so.

We recently had an HIB transfer and the whole thing took altogether about 24 hours, so we are really happy with that. We file a strong application and the paperwork was all done correctly. The process went very smoothly. These are the things that employers need to think about. These are the things employees need to think about. An employer who’s hiring away an HIB, employer should be careful not to tamper with the employment contract. You don’t want to open yourself up to a lawsuit from the first employer. I’m really surprised that there aren’t more problems between initial employers and secondary employers. I think that’s an area that might develop in litigation and might be right for problems.

If you have questions about the HIB transfer process, if you’re concerned about it, feel free to give us a call at 314-961-8200. You can always email us at info@hackinglawpractice.com. If you like this video, do me a favor and subscribe to our videos on the YouTube channel. That way you’ll be updated whenever we shoot a new video. If you like this video, give us a like. We’d really appreciate it and it helps us get out the read to other people who might like to learn about HIB visas, transfer and all the rest of immigration. Thanks a lot and have a great day.

H1b Fraud detection – Random Site Visits

USCIS has publicly claimed that as one-in-five H-1B applications were either fraudulently filed or included violations of the program itself.  This has led to a significant increase in the amount of anti-fraud investigations by the agency.  These investigations usually involve surprise site visits to the offices of U.S. H-1B employers.  

Many of these investigations are conducted by the Office of Fraud Detection and National Security (FDNS).  This office was created in 2004 to make sure that immigration rules and regulations were being followed. According to the USCIS, FDNS’ primary mission is to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts to make sure that our immigration system is not being abused.

The FDNS conducts random, unannounced onsite inspections as part of the expansion of its Administrative Site Visit and Verification Program, which started in 2009. The agency hires private contractors to send “investigators” out to conduct site visits to H-1B employers to verify if the foreign-born employee is working at the employer and performing the work as outlined in the H-1B petition. The FDNS investigators seek to confirm the identities of both the H-1B employer and the visa beneficiary in order to make sure that both the company and the worker are complying with the conditions of the H-1B visa.  

USCIS

The objective of the unannounced site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the agency has uncovered both technical violations of the law to outright fraud, with the most common violation being the employer’s deliberate or accidental failure to pay the prevailing wage to the international employee.

The investigations are referred to as compliance reviews and are designed to compare information contained in the I-129 petition with the facts on the ground.  The site inspectors verify the information submitted with the petition and that the employer actually exists, take photographs, review documents, interview company personnel and interview the beneficiary.  After the site visit, the FDNS officer issues a Compliance Review Report, which becomes part of the employer’s record.  If fraud is indicated, further investigation may be conducted or the case may be referred to U.S. Immigration and Customs Enforcement.

USCIS issues proposed STEM OPT extension rule

On October 19, 2015, the Department of Homeland Security (“DHS”) published a proposed new rule covering an extension of the Optional Practical Training (“OPT”) program for students working in Science, Technology, Engineering and Math (“STEM”) fields.  The agency previously issued a STEM extension rule, but that rule was challenged in federal court for alleged defects in the “notice and comment” provisions of federal rulemaking laws.  The federal judge presiding over that legal challenge gave the government time to issue this proposed new rule.

The proposed rule is named Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.  The public will have 30 days to provide input with DHS regarding how the rule might be improved.

OPT allows foreign students to work for U.S. employers for up to 12 months, while maintaining valid F-1 status, after graduation.  Due to the high demand for H-1B visas, the STEM Extension benefits employers and foreign workers by giving them additional opportunities to apply for the H-1B lottery in more than one year.

EAD

STEM Extension

The new rule would allow F-1 students working in STEM fields to obtain an OPT extension of 24 months.  Thus, a STEM student could conceivably work for up to three years in valid F-1 status after graduation.  This represents an increase from the 17 month extension contained in the prior rule.  As before, STEM students would only be allowed to work for employers who have enrolled in the E-Verify employment eligibility verification program maintained by USCIS.

Unemployment Expansion

Under the current rule, the F-1 student can only accrue 90 days of unemployment during an initial 12-month grant of OPT.  This would remain the same.  Under the proposed rule, however, STEM OPT students would be allowed 60 days of unemployment during the 24-month period, which represents an increase from the current rule of only 30 days while on the extension.

Prior STEM Degrees

DHS proposes to allow F-1 students who previously used a STEM OPT work authorization to enroll in another STEM academic program and receive an additional 24 month STEM OPT extension.  In addition, students in F-1 status who graduate from a non-STEM degree program and only receive the 12 month grant of OPT would be eligible to use a previously-awarded STEM degree as a basis for the STEM Extension if the job directly relates to the previously obtained STEM degree.

Protections for U.S. Workers

Under the proposed rule, U.S. employers would have to verify under oath certain statements.  These statements include (1) that the employer has sufficient resources and supervisory personnel to provide appropriate mentoring and training, (2) that the employer will not terminate or lay off any full or part time U.S. workers as  a result of providing the STEM OPT to the F-1 student, and (3) that the job offered will assist the student in obtaining practical training.

Mentoring and Training

If the employer wants to sponsor the STEM Extension, the new rule requires that a Mentoring and Training Program be put in place.  Evidence related to the mentoring and training would have be be provided to the F-1 student’s Designated School Official at their college or university.

Same terms of Employment

The employer would have to provide compensation, hours and duties that it provides to similarly situated U.S. workers.  STEM OPT workers would have to work at least 20 hours per week.

Site visits

The proposed rule makes clear that DHS has the discretion to visit employer’s work places to make sure the program requirements are being satisfied.

Accredited schools only

STEM OPT extensions would only be available from schools that are accredited by an accrediting agency listed with the U.S. Department of Education.

We will continue to monitor these proposed changes to the STEM Extension.  The deadline for public comment is November 18, 2015.

Jim Hacking is an immigration lawyer based in St. Louis, Missouri.  Jim assists employers in hiring foreign workers and obtaining the necessary work authorization for those workers.  He is also passionate about educating employers and foreign workers regarding the entire immigration process.  Jim may be reached at jim@hackinglawpractice.com.  

Download a PDF of this article here – OPT STEM Extension

EB-1 Petition Approved for Rolla, Missouri Scientist

On July 1, 2015, we filed a petition for an alien worker (I-140), a leading scientist from Rolla, Missouri.  We are happy to report that – with premium processing – the case was approved in seven days and without a dreaded request for evidence.  This is the first step towards obtaining lawful permanent resident status.

This interesting case involves a PhD. who specializes in nanotechnology and metals.  He filed for an EB-1 visa for aliens of extraordinary ability.  This case was a self-petition, which means no employer was involved.

In most employment-based immigration cases, an employer is required to file a PERM application with the Department of Labor before filing the visa petition with USCIS.  But for a rare number of workers, the law allows them to self-petition without an employer and without going through the expensive and time-consuming PERM process.  To qualify for the exception, the alien has to satisfy at least three out of ten listed criteria and the standard is very stringent.

Our office is frequently contacted by scientists, researchers, educators and others who believe that they may qualified for this extraordinary path to lawful permanent resident status.  We turn down the vast majority of cases after having a heart-to-heart with the potential applicant.  The standard is very, very high and most people just don’t have the credentials necessary to prevail.

visa

One significant factor in determining whether these cases get approved is who will write letters in support of the person seeking to obtain the EB-1 visa.  If the potential applicant only has letter writers from a close circle of friends or from people that they studied or worked with, the application is unlikely to succeed.  To prevail, the person really needs world-class individuals in the field to write strong letters of support.

This is why we agreed to take this case.  The client had an impressive publication, teaching and presenting history.  But more importantly, the people that he had writing letters for him were the tops in the field and were both academics and industrial leaders.  We filed what we thought was a strong application and apparently USCIS agreed.

Now our client will need to file for adjustment of status.  We will get working on that shortly.

If you have questions about employment-based visas or would like for us to evaluate your credentials to see if you have a good chance of success, please contact us at (314) 961-8200.

Immigration Attorney convicted of $579,000 fraud scheme

New York immigration attorney Marijan Cvjeticanin was convicted of nine counts of mail fraud after a one week trial in U.S. District Court.  The jury deliberated 2 hours before finding Cvjeticanin guilty.

Cvjeticanin worked at the immigration firm of Wildes & Weinberg, P.C., first as a paralegal and then as an attorney.  He was responsible for preparing Department of Labor certifications and applications for permanent residency for foreign workers.  Firm clients included Automatic Data Processing, Inc. (“ADP”) and Broadridge Financial.

The PERM application process requires that job postings be published in the largest daily newspaper in the area in which employment would occur.  Unbeknownst to his law firm or to the clients, Cvjeticanin created a fictitious company to handle the publication of the classified ads.  But he never ran the ads.  Instead, he fabricated false advertisements and submitted them to the immigration service so as to suggest that the ads had been properly placed.

A routine email audit at Wildes & Weinberg revealed that Cvjeticanin had been running the fictitious company.  A subsequent investigation showed that ADP and Broadridge had paid nearly $579,000 for advertisements related to the PERM process for their employees.  False ads had been generated suggesting that they had been placed in Computer World magazine, as well as the New York Times, the Boston Globe and other newspapers around the country.

Cvjeticanin faces 20 years in prison and a $250,000 fine on each of the nine counts.  Sentencing is scheduled for late August.

Ex-immigration attorney Marijan Cvjeticanin
Ex-immigration attorney Marijan Cvjeticanin