Most practicing immigration lawyers remember the chaos in 2007 and 2008 when the H-1B caps were met and filled in one day.  Stories of four 52' semis parked outside the Vermont and California Service Centers the morning of April 1, each filled to the top with boxes and envelopes.  Only a fraction of which would be selected by a computer to win the H-1B lottery - what happens when Congress fails to update its programs.


Now it appears that maybe history is repeating itself.  And still no solution in sight! 

Only 65,000 H-1B visas are available every fiscal year.  Another 20,000 are available for graduates with US Master's degrees.  Remember, an alien can only be counted against the quota once every 6 years, so the quota does not apply to extensions and transfers.  There are also a fair number of cap-exempt H-1B's, usually when the employer is a university or affiliated with one.

To get an H-1B, an alien has to have a bachelor's degree or its equivalent.  These are all smart, driven, professional people.  And our policies put a quota not only on visa numbers, but on intelligence.  Those aren't my words.  Those are the words of Bill Gates.

According to a USCIS announcement on March 15, USCIS anticipates a great deal of filings, probably in excess of the 65,000 available.  In response to this, USCIS is making a change in H-1B filing practice.  Premium processing petitions (where you get a decision within 15 days for an extra $1,225 in filing fees) will now only be data-entered after April 15, 2013.  You can still file your premium processing case as of April 1, but the 15 day clock won't start running until April 15.  This is so that USCIS can data enter in all the regular processing H-1B petitions they're expecting the first two weeks of April.  So basically, April 15 will be 'day 1'. (This means your case will not be delayed if you choose to premium process.)  

If you file on Friday, March 29, 2013, the petition will arrive on Monday, April 1, 2013.  They will hold all filings until Friday, April 5, 2013 and then count the filings.  If the cap is not filled, then all cases will be receipted and no lottery will be held, but April 15 will be "day one" for premium processing filings.

If more than the allotted number arrives on or before April 5, 2013 then there will be a lottery.  If past years are any indication, there will be two rounds.  The first round will be for master's degree cases, and the second for the "losers" from the master's degree cases which will be tossed into the general lottery for the non-master's cases.

If you're on OPT, you might want to consider filing an H-1B now even if you're eligible for a STEM extension.  If the lottery does take place, then this year may be your only chance - because if you take the OPT extension and there's another lottery situation next year, you might find yourself on a one-year unwanted vacation, or getting a degree you don't need.  If your case gets rejected (ie, you lose the lottery) you may still have time to apply for an OPT extension.  But if you don't try to change your status to H-1B, you're putting your entire future on the possibility that you'll win next year's lotto - but the difference is, you might not have an OPT extension to fall back on.

And if you can't find an employer - here is some helpful advice.

It's that time of year.  You're on F-1 or OPT, about to graduate, or otherwise about to run out of time, and H-1B season is upon you, and you don't have a job.

As an immigration lawyer I talk to people often who are facing the same quandary: why would an employer want to sponsor an H-1B in this economy?

I usually tell people: this is a big country.  There is a willing employer out there.  You have to find it, and once you do, that employer may well be willing to sponsor your green card as well. 

Over the years, we've noticed some trends.  People looking for H-1B sponsorship will focus their inquiries on the biggest companies, like Oracle or Microsoft or Accenture.  Larger companies can afford to be picky, because everyone is applying to them.  The fact that you need sponsorship will usually hinder you in these job applications.

With smaller companies, however, the prospective H-1B applicant enjoys more leeway.  Smaller companies don't have legions of hungry jobseekers spamming their HR department with resumes.  And so they tend to be more willing to go through the extra paperwork involved in an H-1B or even an employment-based (EB-2 or EB-3) green card.

The problem with smaller companies, though, is that they are scrutinized more by USCIS.  Smaller companies are seen as riskier.  They may not have the organizational complexity to justify the H-1B job.  Questions may arise as to their ability to pay the prevailing wage.  They are more likely to be audited.  They are seen sometimes as "third party job shops" - a situation described by the Neufeld Memo of Jan. 8, 2010 as where the employer is the employer only on paper, whereas the H-1B employee reports to work at a third-party client site and answers to the client, not the H-1B employer.  Sometimes USCIS questions whether the job is really a "specialty occupation" (ie, does it even require a bachelor's degree).

That's where the lawyering comes in.  When working with a smaller company (that might not have much experience with the H-1B process) it is absolutely essential to have competent legal counsel familiar with the areas USCIS likes to scrutinize.  For one other success story, click here.

In the IT industry, a little bit of foresight and planning can save a lot of time responding to a nasty Request for Evidence (RFE).  For example, if an IT job will not require travel and the employee will be working out of the employer's business location, it makes good sense to highlight that several times in the H-1B petition.  Why?  Because that way USCIS fears are allayed that the employer is just sending the employee to client sites.  If the employee is going to be primarily working on a client site, then special care needs to be taken in drafting the petition.  Or else a very nasty RFE will issue.

Sometimes the solution is to do a part-time H-1B, especially if the company is newer, less capitalized, or does not have the organizational complexity to support a full-time H-1B.

In any case, working with counsel familiar with the H-1B regulations is essential to the success of a petition filed by a smaller company.  And the applicant should also take pains to ensure that after the H-1B is filed, the company will not "bench" them.  "Benching" is when an employer only pays the employee when there is an active contract, and if the employee is in non-productive status, the employer does not pay anything.  This is illegal and can result in payment of not only back wages to the employee, but hefty fines and other consequences for other H-1B petitions the employer might file.

So a prospective employee staring at the end of the F-1 or OPT rope should not lose heart.  There are jobs out there.  The focus should be on the type of employers who are more likely to be willing to go through the H-1B and subsequent paperwork. 

How to find a job?

• Do not focus on larger companies unless you have truly stellar credentials (Ivy League, high GPA, etc.)
• Go to local networking events.  There are literally hundreds of business unions, meet-and-greets organized by the local chamber of commerce, and other events organized to help businesses interact and mutually benefit from each other.  These are where executives from smaller companies go to network.  You probably won't get your job by firing off resumes from your laptop.
• Plug your resume and credentials on social media such as LinkedIn.
• Consult an immigration lawyer who can advise you about your particular situation and arm you with knowledge you can take to a prospective employer.
• Smaller companies want to know what skill you bring that will enable them to attract larger, more affluent clients.  Learn to research small company profiles and target the ones who seem to be missing what you can offer.

Here is a list of websites to help such applicants begin their job search:

1. My Visa Jobs: http://www.myvisajobs.com/H1B_Visa.aspx
2. Immihelp: http://www.immihelp.com/visas/h1b/filing-h1b-petition.html
3. ehow: http://www.ehow.com/how_2100035_file-h1b-visa.html
4. DOLETA: http://www.foreignlaborcert.doleta.gov/h-1b.cfm#fil
5. H1Base: http://www.h1base.com/visa/work/H1B%20Visa%20Application%20Regular%20Process/ref/1166/ (at the bottom)
6. Happy Schools Blog: http://www.happyschoolsblog.com/h1b-2013-quota-checklist/
7. Path 2 USA: http://www.path2usa.com/h1b-visa-guide
8. Indeed.com: www.indeed.com/q-H1b-jobs.html
9. H1BVisaJobs: http://h1bvisajobs.com/
10. DesiOPT: http://www.desiopt.com/
11. H1VisaJobs: http://www.h1visajobs.com/
12. H-1B Wiki: http://h1bwiki.com/h1b-sponsors/ (Fan Page: http://www.facebook.com/h1bwiki) 
13. OPT Nation: http://optnation.com 
    
    

updated 3/1/2016

The last several months have been a time of intense change.  We are hoping the trend will continue.  And we get meaningful immigration reform.

First of all, a warning.  THERE IS NO IMMIGRATION REFORM YET.  When people talk about "immigration reform" they usually mean a "pathway to citizenship" for the millions of people living in the United States without status.  Actually, as we blogged about last month, it's more than that.

It's a way to be fair to everybody.  The people who've been waiting, and the people who just want to get the chance to wait.  It's to stop ripping up families, separating children from parents, husbands from wives.  It's about recognizing the intrinsic value an immigrant provides to a society like ours, whether their papers are in order or not.  It's about maintaining a competitive edge, and not investing in talent only to export it.

Deferred action for childhood arrivals (DACA) was a great first step.  Provisional (stateside) waivers - the new Form I-601A - was a great second step.  But compared to what we need - comprehensive immigration reform - these are baby steps.

We want to remind people that there are things you can do right now.

• First: get right with all your taxes.  If you owe taxes, get on a payment plan with the IRS.  Visit the IRS website here and apply.  If you haven't paid taxes, start now.  If you don't know where to begin, see a tax professional.  Our law firm recently opened a tax service where we do all types of tax returns, and because we are immigration lawyers as well, we know how to help.
• Second: learn English.  It appears that if there is immigration reform, one of the proposed requirements with which no one quibbles is to learn English.  So it's a good bet that reform will include this requirement.  And learning English might take time.  So start now.  Many neighborhood resource centers offer free or low-cost English classes.  And the State of New York announced today it will join other states and cities and open a new office to provide services to immigrants, including English classes.
• Third: collect all documents from the entire time you've been in the United States.  Old receipts from money transfers back home, pictures, paycheck stubs, bank statements, pieces of mail, lease agreements, bus tickets, old emails...anything and everything.  Don't throw anything out.  You never know what a good lawyer will be able to use to prove your presence in the United States - something else which may well be a requirement if there is immigration reform.
• Fourth: consult with a lawyer and make sure there are no problems in your history.  Some people are not aware they were placed in removal proceedings and ordered removed.  Others think they had their criminal case dismissed, but do not know that sometimes a dismissal can be a conviction under immigration law.  If there are problems, it's best you deal with them now.

Are you considering whether to travel to the U.S. on an H-1B visa but reluctant to because of the possible tax implications?  Here is a short guide to help you determine whether it makes sense to make the move to the United States on an H-1B visa.  

Generally, the tax liability for a foreign national will depend on whether the person is considered a “resident alien” or a “non-resident alien.”  First, we will examine whether you may be considered a resident or a non-resident alien and then we will discuss the tax implications for both categories.  

Who are Resident Aliens:

A person will be considered a resident alien if he or she meets what the U.S. government calls the “substantial presence test.”  Individuals will meet the substantial presence test if they are physically present in the United States at least:  

1. 31 days during the current year, and 
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting 

• All the days you were present in the current year, and
• 1/3 of the days you were present in the previous year, and
• 1/6 of the days you were present in the year before that.

Substantial Presence Test applied to those with H-1B's:   

Because most people on H-1B's need to be present in the United States for the majority of the year to meet their job requirements, most will meet the presence requirements of the substantial presence test in the first or second year they are here.  Therefore, most individuals on H-1B's will be considered resident aliens in their first or second year in the United States. 
  
Who are Non-Resident Aliens:

An individual is considered a non-resident alien if he does not have a green card and does not 
meet the substantial presence test.

An Example Applying the Substantial Presence Test:

To give an example of how the substantial presence test works to determine if you are a resident or a non-resident alien, consider Mr. B:

1. Mr. B is awarded an H-1b visa in India and travels to the United States on November 18, 2012. This is his first time in the United States.  It’s now January 2013 and Mr. B. is considering his tax liability for tax year 2012 (the U.S. tax year starts in January and ends in December).  Will he be considered a resident alien for U.S. tax purposes? 

Requirement #1 of the Substantial Presence Test:  Has Mr. B been present in the United States for more than 31 days in tax year 2012?  Yes, he was in the United States for 44 days in tax year 2012.  He therefore meets the first requirement of the substantial presence test.  

Requirement #2:  Has Mr. B been present for 183 days during the previous 3 year period?  No, because he just arrived in the United States on November 18, 2012, he was only present in the United States a total of 44 days in the current tax year 2012.  He does not meet the second requirement of the substantial presence test and is therefore considered a Non-Resident Alien for tax purposes.

2.Now, it’s January 2014 and Mr. B is considering his tax liability for 2013.  He has now been in the US for over a year.   Is he a resident alien yet?  

Requirements #1:  Yes, Mr. B has been present 31 days in tax year 2013.

Requirement #2:  Has he been present in the US for 183 days, looking at the past year and two months since he arrived in the United States?  Under the substantial presence test, we count the entire 365 days he was present in the US in 2013.  We also count the time he was present in the US in 2012, but only count one-third of those days.  He was in the US for 44 days in 2012, so we will count 15 of those days for the test.  In total then Mr. B. has been present in the US for 380 days since he arrived in the US and therefore, he is now considered a Resident Alien.


Tax liability for Resident and Non-Resident Aliens:

If considered a Resident Alien:

Resident aliens’ income is generally subject to tax in the same manner as a U.S. citizen.  This means that their world-wide income is subject to U.S. tax and must be reported on a U.S. tax return.  They must report all interest, dividends, wages, or other compensation for services, income from rental property or royalties, and other types of income on their U.S. tax return. A resident alien must report these amounts whether from sources within or outside the United States.
 
If considered a Nonresident Alien:

Non-resident aliens must report the two following types of income:

1. Income that is “effectively connected” with a trade or business in the United States, which would include active income earned by providing your services. Income that is effectively connected with a trade or business in the US is subject to US tax at the same (graduated) tax rates as for US citizens.
2. Income from “fixed, determinable, annual, or periodical sources” in the United States (eg. passive income such as dividends, interest, and royalties) Such income is generally subject to a withholding tax at the source of payment, generally at a maximum rate of 30% unless reduced by a tax treaty.

Please see the following sites for further information:

http://www.irs.gov/Individuals/International-Taxpayers/Substantial-Presence-Test
http://www.irs.gov/Individuals/International-Taxpayers/Taxation-of-Resident-Aliens
http://www.irs.gov/Individuals/International-Taxpayers/Taxation-of-Nonresident-Aliens

Still confused?  Fill out the form to the right above and a lawyer will contact you within 1 business day.

UPDATE: Be sure to read how the 2014 Executive Action will impact the Provisional Waiver Program.

The wait for the release of the new I-601A Provisional Unlawful Presence Waiver Form is finally over!  As of March 4, 2013, you can now file Form I-601A with USCIS.

This new waiver allows foreign nationals to apply for a provisional unlawful presence waiver while they are still in the United States, and before they depart for their immigrant visa interview at a US Embassy or Consulate abroad.  Prior to this waiver, immediate relatives of U.S. citizens who were not eligible to adjust status in the United States had to travel abroad and be found inadmissible at their immigrant visa interview before they could apply for an inadmissibility waiver of their unlawful presence.  Under this old process, families were separated for years waiting for a waiver, now at least; families can remain together in the United States while they wait for approval of the waiver.  

A few reminders as you consider whether to apply for the new Provisional Waiver:

If you are already in removal proceedings, you can still file a Provisional Waiver once your proceedings have been administratively closed and as long as your case has not been placed back on the Immigration Court calendar.  While it may seem like a long shot to ask a judge to close your case, judges are more likely to administratively close your case if they know that you are eligible to file for a Provisional Waiver.

The filing or approval of an application for a provisional waiver DOES NOT give you any lawful status in the United States or protect you from being placed in removal proceedings.  

Also, the provisional waiver ONLY waives unlawful presence; it does not waive any other grounds of inadmissibility.  Therefore, do not apply for the provisional waiver if the government will find you inadmissible for other things, such as criminal convictions or prior immigration fraud.  USCIS will reject your provisional waiver application if they believe there are other grounds of inadmissibility besides just unlawful presence in your case.

We previously blogged about the provisional waiver when the Department of Homeland Security announced in January 2013 that they were approving the new waiver, and also back in April 2012 when DHS first published a draft form of the rule regulating the waiver, and back in January 2012 when it was first announced.  

Here’s a review of the Provisional Waiver application process from our January post:

Who Can Apply?

• You must be physically present in the United States
• You must be at least 17 years old
• You must have a spouse, child or parent who is a U.S. citizen
• You must already have an approved I-130 petition based on your being an immediate relative of a U.S. citizen or an approved I-360 Petition for Amerasian, Widow(er), or Special Immigrant.
• You can't have any other problem with your immigration besides 1) entering the US illegally (EWI or "entry without inspection") or 2) being out of status (or having no status) for more than 6 months. 
• You have to be able to show that if you don't get a green card, it will be extremely difficult for your U.S. citizen spouse or parent to be separated from you.  (This is the "extreme hardship" standard - which is not the same as "exceptional and extremely unusual hardship" which is the standard for another type of case, but can be difficult to prove anyway)

What Is The Process?

• You have to already have an approved I-130 (petition for alien relative).  You CANNOT file your I-130 together with the I-601A provisional waiver.
• If you're not in removal proceedings, the I-601A is filed with USCIS.  Do NOT file Form I-485 (adjustment of status): it will be denied and you'll be out over $1000 in filing fees.
• You will have to collect a lot of evidence to prove your eligibility for the provisional waiver.  You should not attempt to file a provisional waiver case without the assistance of an experienced immigration lawyer.
• You also have to file your immigrant visa forms (DS-230 forms) with the National Visa Center (NVC) and notify them that you intend to apply for a provisional waiver on Form I-601A.
• If your provisional waiver is approved, you will have to leave the United States and go back to your home country with the approved waiver for your immigrant visa appointment.
• If all goes well at the interview, you will get your immigrant visa, re-enter the United States, and your green card will be mailed to you a few weeks later.
• If you are in removal proceedings, you have to get your proceedings administratively closed before filing the I-601A, and then get them terminated before you leave the United States for your visa interview at your home consulate.

As you can see, it can be complicated to decide whether you can or should apply for the new provisional waiver.  How to prove that you can qualify is also a complicated matter.   But if you need to know now whether you qualify -  fill out the form to the right and we will contact you within 1 business day with some advice.