ALTERNATIVES TO H 1B. A few types of visas for H 1B contingency planning:

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1 ALTERNATIVES TO H 1B Lisa Ellis Ellis Immigration Law LLC, Seattle Tifani Parrilli Parrilli Renison LLC, Portland A few types of visas for H 1B contingency planning: Training visas Visas tailored to occupation and/or nationality Visa requiring very high skill level File for PR Directly wo NIV March 15-16, 2018 Page 1 of 12

2 B 1 Business Visitor Clear intent to continue foreign residence US entry temporary Further international commerce or business Payment to B-1 should generally be abroad Services performed are not ones which US worker would need to be hired for/not inherently part of US labor market and are not primarily benefiting US entity Visa or VW? Authorized B 1 activities 9 FAM Negotiating contract, litigation, consulting with clients or business associate B 1 in lieu of H 1 B 1 in lieu of J 1 B 1 in lieu of H 3 B 1 in lieu of R 1 Personal/domestic servants of USCs temporarily assigned to US Professional athletes who receive no salary, only tournament money Alien member of BOD of US corporation coming for a board meeting Alien coming to install equipment pursuant to a contract of sale March 15-16, 2018 Page 2 of 12

3 E 3 Specialty Occupation Limited to Australian Professionals Specialty Occupation. 9 FAM (E) Theoretical and practical application of knowledge B.A. or higher Other requirements LCA (and not re used from H 1B) Professional licensing, if required Level of expertise Job itself qualifies Intent to depart Work for any employer Not limited to employment for trade and investment Valid for 24 months and renewable indefinitely E 3D Spouse can work E 3 and H 1B side by side courtesy of E-3 Visa H-1B Visa Available for temporary entry to Available for temporary entry to work in a specialty occupation ie work in a specialty occupation ie requiring a tertiary educational qualification requiring a tertiary educational qualification Requires US employer to sponsor Requires US employer to sponsor Available only to Australians (10,500 Available to all nationalities (65,000 per fiscal year) per fiscal year) Spouses (who do not have to be Australian citizens) are entitled to work in the US Generally spouses are not entitled to work in the US, except in certain circumstances Can be renewed indefinitely (in two Generallyear increments) years valid for a maximum of six The sponsoring employer must file a Labor Condition Application (LCA) The sponsoring employer must file a with the US Department of Labor Labor Condition Application (LCA) and an I 129 Petition with US with the US Department of Labor Citizenship and Immigration Services (USCIS) March 15-16, 2018 Page 3 of 12

4 H 1B1 Specialty Occupation (Chile and Singapore) Requirements identical to specialty occupation professional under the H 1B category, except alternate credentials allowed in the occupations of: Disaster Relief Claims Adjuster Management Consultant Agricultural Managers (Chile only) Physical Therapists (Chile only) 9 FAM (E) H 1B1 Not a Duck 6,800 available H1B1 visas each fiscal year (1,400 from Chile and 5,400 from Singapore) No I 129 Petition required unless C/S, E/S, COE Requires LCA annotated as H 1B1 Chile or H 1B1 Singapore Requires the I 129 FT Supplement No $500 Fraud Fee required Issued in 1 year increments, no 6 year limit Portability NOT applicable Presumption of immigrant status March 15-16, 2018 Page 4 of 12

5 H 2B Temporary Non Agricultural Employment Brief Checklist Beneficiary is citizen of eligible country. See USCIS.gov H 2B page H 2B visa number available. See Cap Count at unitedstates/temporary workers/h 2b non agricultural workers/cap count h 2bnonimmigrants Offer of full time employment Includes training others Includes setting up a business Professional, skilled, or unskilled DOL uses O*NET to determine if requirements for job are normal Does not include permanent employment Temporary Need types and validity: One time occurrence: up to 3 years Seasonal: up to 1 year Peakload: up to 1 year Intermittent: up to 1 year Prevailing Wage Determination ETA 9141 Certified ETA 9142 temporary labor certification with SWA job order H 2B Calendaring File prevailing wage up to 1 year in advance valid at time of job order posting Register with DOL days before date of need. (20 CFR ) Concurrently submit job order and temp Labor Certificate w/ supporting docs days before date of need (20 CFR ) Recruitment (20 CFR ) Complete within 14 days of Notice of Acceptance Accept U.S. worker referrals/applications until 21 days before date of need Standard: no willing, able and qualified U.S. workers available Advertising requirements(20 C.F.R ) Newspaper 2 ads including 1 Sunday Contacts to former U.S. workers, if applicable Post job in conspicuous location Additional recruitment by CO Recruitment Report Employer signs on date of acceptance March 15-16, 2018 Page 5 of 12

6 H 3 Nonimmigrant Trainee Proposed training not available in home country Beneficiary will not be placed in position which is in the normal operation of the business and in which citizens and resident workers are regularly employed Beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training Training will benefit the beneficiary in pursuing a career outside the US A Training Program may not be approved if it: Deals in generalities with no fixed schedule, objectives, or means of evaluation; Is incompatible with the nature of the petitioner's business or enterprise; Beneficiary already possesses substantial training and expertise in the proposed field of training; Is in a field in which it is unlikely that the knowledge or skill will be used outside the US Will result in productive employment beyond that which is incidental and necessary to the training; Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the US; Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student. 8 CFR 214.2(h)(7) March 15-16, 2018 Page 6 of 12

7 H 3 Notes: Period of Stay: up to 2 years (up to 18 months for special education exchange visitor, regs allow for 50 spec ed visas per year) No E/S, C/S, or readmission to H or L after the 2 years, unless physically present outside of US for 6 months. Approval of PERM labor certification is grounds for denial of E/S. Multiple beneficiaries allowed if same training duties and same dates B 1 may be available for training program if beneficiary receives remuneration abroad J 1 trainee requirements Trainee, Training, and Training Plan: B.A.; professional certificate + 1 year work exp. outside U.S. or 5 years work exp. outside U.S. At least 21 yrs old with residence abroad Fluent in English with sufficient funds Training objective is learning and cultural Adequate supervision Trainee to attain skills without displacing U.S. workers March 15-16, 2018 Page 7 of 12

8 212(e) requirement and J Waivers 9 FAM 402.5(L) When it may apply Government funding Skills List Graduate medical education or training Grounds for 212(e) waiver No objection Conrad 30 Exceptional Hardship Interested State Agency O/P Extraordinary Ability, Athletes, Entertainers O 1A Extraordinary Ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim O 1B Demonstrated record of extraordinary achievement in the motion picture or television industry O 2 Persons accompanying or assisting an O 1 artist or athlete for a specific event or events O 3 Accompanying spouses and children. No employment. 8 CFR 214.2(o)(l)(i) March 15-16, 2018 Page 8 of 12

9 Athletes, Entertainers, Culturally Unique Artists P 1 Internationally recognized athletes and group entertainers P 2 Artist/Entertainers as part of Reciprocal Exchange Program P 3 Artist/Entertainer in Culturally Unique Program P 4 Accompanying spouses and children. No employment. 8 CFR 214.2(p)(1)(i) O & P Tips: Do not mix and match criteria from O 1A, O 1B Arts, or O 1B MPTV Beneficiaries have no grace period after termination (but see 8CFR214.1(l), effective 1/17/17) Negative consultation letter does not prevent approval; it can be overcome by evidence Beneficiary cannot translate their own publications for O 1 petitions; they must be "certified" translations USCIS wants the entire article translated, not just the abstract Resources: VSC National Stakeholder Minutes 9/15/17: AILA Doc /30/17 Open House at the California Service Center (CSC); AILA Doc (Posted 10/3/17) Index for I 129 O and P Consultation Letters 3/14/17: AILA Doc USCIS guidance memorandum entitled Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classification; AILA Doc (Dated 11/20/09) March 15-16, 2018 Page 9 of 12

10 Agent Petitions When filing an agent petition, explain the agent relationship. If the agency relationship does not fall under the categories listed in the regulations, explain the relationship to the Service with as much detail as possible. If a performer changes agents, no deference will be given to the previous O petition because a new petitioner is a change in circumstances deference does not apply. Itineraries/contracts: Provide all contracts and itineraries for the requested validity dates. USCIS indicated that the contracts/itineraries should contain phone numbers, and that they can/will call the venue/employer. Itineraries should also contain beneficiary's duties. If requesting time that starts before contract date or goes beyond contract dates, explain why you are requesting such time. R 1 Religious Workers Valid 501(c)(3) letter for religious organization Religious denomination (9 FAM ) Member of same religious denomination in U.S. for 2 yrs immediately preceding filing Types: Non minister and minister R 1 currently available to both Religious non ministers (professional or non professional) Vocation Occupation Duration: 5 years with recapturability 1 year abroad to re enter in R status March 15-16, 2018 Page 10 of 12

11 A few key differences between R 1 ministers and non ministers Minister Theological education and ordination, if required by denomination Meet ministerial qualifications of church or organization Duties must primarily involve activities with rational relationship to religious calling of clergy in the denomination Non ministers Position must not be primarily administrative or secular Occupation: the duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination; and the duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination Position can involve making a lifetime vow EB 4 only extended to 3/23/18 for non ministers STEM OPT 24 month extension for F 1 STEM students Requested through DSO Work for E verified employer Apply on Form I 765 Considerations for Cap Gap OPT March 15-16, 2018 Page 11 of 12

12 H 4 EAD On May 26, 2015, USCIS began accepting I 765 Applications for certain H 4 spouses of H 1B nonimmigrants, where: 1. H 1B spouse is the principal beneficiary of an approved Form I 140, Petition for Alien Worker; or 2. H 1B spouse granted status under sections 106(a) and (b) of AC21 Timing issues Tied to H 1B Spouse status FAQs on Employment Authorization for Certain H 4 Dependent Spouses, AILA Doc (2/2/17) Practice Pointer H 4 EADs AILA Doc (4/25/17) On December 14, 2017, DHS published an official statement on Removing H 4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization in the Regulatory Agenda. The intention is to either amend the original rule published for H 4 EAD Rule in 2015 or to revoke so as to be consistent with the underpinnings in Trump s Buy American, Hire American Executive Order. QUESTIONS? March 15-16, 2018 Page 12 of 12