Fragomen PowerPoint

Immigration Basics:
Overview of Procedures and
Obligations for Employers
Part 1: Nonimmigrant Visas
Fragomen, Del Rey, Bernsen & Loewy, LLP

© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP


Aaron Blumberg

Associate

Enrique Gonzalez

Managing Partner

Fragomen, Del Rey, Bernsen & Loewy, LLP
1 Alhambra Plaza, Suite 600, Coral Gables, FL
(305) 774-5800

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Immigration
Overview
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP


Three Groups of People in the US

1) Citizens
2) Immigrants
3) Nonimmigrants

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Nonimmigrants
• Coming to the U.S. temporarily
• Retain residence abroad
• Dual intent - only for H’s and L’s
• “Alphabet Soup” - A-V
• Important Visas to Know: H-1B, TN, E3, F-1, J-1, O-1
• Immigrants vs. nonimmigrants

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Immigrants
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“Green card holders” = “permanent residents” = “immigrants”

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Coming to U.S. permanently

•

Numerically limited

– Visa bulletin
– Priority date
•

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Can become U.S. citizens after 3 - 5 years


Understanding the
Documents
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP


Visa Stamp

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I-94 (D/S)

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I-94 (Expiration Date)

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I-797
Approval
Notice &
I-94 Card

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I-20 (F)

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DS-2019 (J)

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Form I-9

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H-1B Work Visa
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP


H-1B Category: USCIS Provisions
• H-1B visas are for temporary (nonimmigrant) workers
engaged in a specialty occupation that requires

– (1) theoretical and practical application of
highly specialized knowledge and
– (2) attainment of a bachelor's or higher
degree, or equivalent experience, in the
specific specialty for entry into the
occupation.
• “Specialty Occupation” -- Entry level requirement = minimum
Bachelor Degree or equivalent
• Cap: 65,000 + 20,000 additional visas allocated to holders of
advanced degrees from U.S. universities
• Cap Subject vs. Cap Exempt
– All Universities are cap exempt
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H-1B (continued)
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H-1B can be full-time or part-time

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H-1B workers are “tied” to their employer

– Cannot accept payment from any
other source
•

Can hold dual/concurrent H-1Bs with multiple employers

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What are the government fees? ($325, $500, $750/$1500)

– Universities exempt from Training Fee
($750/$1500)

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H-1B (continued)
• H-1B visas are valid for 3 years and can be extended
for an additional 3 year period for a total of 6 years
in H-1 status
– Previous stays in L-1 or H-1 status (but not L-2 or H-4
dependent status) count towards maximum period of
stay
– Time spent outside of the US does not count towards 6
year limit

• H-1B visas can be extended past the 6-year
maximum in certain situations:
– 1 year Extension: If PERM has been filed at least 365
days prior to the date the H‐1B expires
– 3 year Extension: If an I‐140 has been approved, and
the individual cannot adjust status because priority date
is not current (usually someone from China or India)

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Wage Requirements
• Actual Wage

– paid by the employer to US workers
– in the same position
– at the same work site
– with similar experience and qualifications
• Prevailing Wage

– Average salary paid to all similarly situated
employees (i.e. similar job duties,
experience, education, etc.) in each
geographic region
• Required Wage – higher of the actual or prevailing
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Prevailing Wages

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Two ways to get PWD: Through Dept of Labor OR through FLC Data
Center (website)

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DOL Wages: DOL will issue a wage by going on FLC Data Center
themselves and finding the appropriate job code and wage level

•

When we get the wage on our own, we run the risk of creating liability
for the University, therefore all wages must be obtained through DOL;
this creates a Safe Harbor!


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