Category Archives: Visa Info

Information about all types of US Visas and the best ways to obtain one

H-1B Visa Application Season 2014

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Happy new year and the roulette wheel of H-1B visas is just around the corner again for the plethora of companies that sponsor these visas along with the hundreds of thousands of foreigners hoping for a chance to work in the US.

We don’t use the term roulette wheel to be cute or as a casual throw away line but in the sense of both how random the process is but also to emphasize how we are literally playing games with millions and billions of dollars of wealth gained and lost in the US through this game of luck system we have.

As a quick refresher on the H-1B visa there are 65,000 general visas issued each year and 20,000 additional visas issued under an Advanced Degree Exemption for foreigners who have obtained graduate degrees or higher from a US University. So that gives a total of 85,000 visas issued to professional foreigners who have to paid a typical professional wage. This is determined by  their career position and locality which is equivalent at minimum to the average salary paid to US worker in the same role an place and is know as a prevailing wage.

Why the above is a significant point to take note is multiple fold  as it affects society, families, foreigners, us companies, the economy and immigration simultaneously. Ultimately none of it is good for the US although  depending on who you listen to the H-1B visa might be the scourge of America. The sad reality is if you listen to rhetoric, ad hoc anecdotes and misinformation you could be convinced. If nothing else you should listen to the facts and decide for yourself;

  • Each month foreigners start more businesses than US born citizens
  • Foreigners earn 3x patents of US born citizens
  • Foreigners found more Silicon Valley companies than US born citizens
  • All PhD educated growth from US Universities in last 40 yrs is from foreign students
  • Immigrants as a whole pay more in taxes than receive in benefits and more ….

As it stands now US companies are restricted in hiring the best and brightest and talented foreigners are leaving the US in droves often with US degrees and founding companies and creating wealth and jobs elsewhere. The proposed US Immigration Reform 2013 passed by the Senate hopes to address this in many ways, however it has gone nowhere in the house and as it stands will have no affect on the H-1B visa season due to being on April 1, 2014.

If you are a foreigner or potential employer then we suggest you complete all your hiring and do your immigration paperwork now so you can send it to the USCIS (United States Custom & Immigration Service) to be received by FedEx on April 1. Last year there was an H-1B visa lottery for the first time since 2008 and likely this year will be even more competitive with the improving economy so your package needs to be in at earliest possible moment.

Good luck this season and we have pasted a summary of all the relevant fees and steps for Immigration part although they are always subject to change;

H1B Visa Fees 2014

To Apply for the Visa; (all USD)
1. USCIS Filing Fee with USCIS $325 – Form I-129 (Spouse optional H4 Fee is $300)
2. Fraud Detection Fee with USCIS $500
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3. LCA Filing Fee with Department of Labor FREE – Form ETA 9035/9035e (a small win here…although am sure will change one day)
Also have to ensure prevailing wages are met as well in this part so you are paid the same or more as a US worker in same position)
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4. Premium Filing Fee $1,225 (optional – Form I-901) – excessive designed to help process where your legal representative has access to case officer phone number and decisions are made fast in 15 days and can also aid spouse partner H4 visa process
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5. Public Law 111-230 $2,000 – (dependent) to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.
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6. ACWIA Fee $750 or $1,500 – if your petition is successful this goes to a training fund for US workers and is $1,500 unless you have less than 25 full time employees. Some government, education and non-profit institutions are exempt from this fee

ADDITIONAL FEES FOR VISA STAMPING IN FOREIGN COUNTRY
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7. Consular Application Fee $131 (x2 for spouse)
8. Visa Issuance Fee $100 (x2 for spouse) (but varies by country so check the Visa Reciprocity Section of the USCIS

Leaving your Job on your H-1B or E-3 Visa

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Despite contrary opinion you can leave your job when you are on a H-1B visa or E-3 visa, it is however a difficult route especially if you are not aware of the immigration rules that govern leaving and changing employers.

As it stands now the rules are very strict when leaving an employer and remaining on the same visa. Specifically that you can be no longer than 10 days without an employer. This can be a little bit of a grey area as sometimes in the case of either being laid off as a foreigner or naturally leaving your job, the last portion of your official time at a company may actually be PTO (paid time off or vacation) or some form of long term official sanctioned leave that may be paid or unpaid. So in any of these cases it should still be the case that the 10 day countdown only begins once your employed connection with the company ceases. This differs from so called severance pay which may be paid in lump sum or increments but would at or after your final official date of employment and thus doesn’t impact the 10 day countdown.

The four most common reasons for leaving your US employer while on a non-immigrant visa is;

1. To return to your home country or other non US destination
2. To change employers within the US
3. A forced change to leave US employer either via lay-off, termination/firing or leaving due to bad circumstances
4. Change to another visa like the F-1 visa for studying or being eligible for a Green Card allowing flexibility of employment

Leaving the US
If you are leaving your job and planning to leave the US the biggest things to note are ensuring you continue to file a tax return with the IRS the following year and any other year you are earning US income. Additionally ensuring you don’t have any other outstanding debt owing is also ideal especially if you plan to return to the US or in the future want to achieve a status like Permanent Residency and US Citizenship.

Changing Employers
We have written extensively on the issues, process and timing of changing employers on either your H-1B visa or E-3 visa and the differences between the two statuses. The biggest thing to note is the concept of Portability and the fact that it explicitly is stated and applies in the case of the H-1B visa and allows someone to commence employment at a new employer even if the new petition is not approved and is just being processed. In the case of the E-3 visa, some people have received advice that the same process applies for the E-3 visa, however it is not a written statute so many people leave the country to get a new E-3 visa as a quicker route than the approval process of changing employers within the US.

Forced Departure From Employer
If you are laid off from your employer, there is no special rules that the US employer must follow for you as a foreigner so other than paying you severance at their discretion, extending your official final date and/or helping you in your job search, the 10 day rule still applies from your final date. However if they do lay you off, they are obligated to pay for your return trip to your home country and do it for a trip that does not violate your visa status rules. If you are terminated with or without cause it becomes a grey area as to whether they are obligated to pay this return fare, however they really should. Ultimately if you are terminated without cause or have been forced to leave b/c of unlawful work conditions, the US workplace rules still apply to you as a foreigner and you can report your employer company and specific people to the Department of Labor and USCIS. However unless it is a criminal case this won’t in and of itself help your ongoing visa status.

Changing Visa or US Status
If you are changing to a status whereby you are studying in the US or achieving a Green Card either via the Diversity Visa Lottery, the employer sponsored EB-1, EB-2 or EB-3 permanent visas or by marrying a US Citizen or Permanent Resident, then you are bound by the new terms of that status as you have that approval. Therefore you can’t operate under the new terms of that visa or permanent residency  until you receive approval to do so. There are various change of status forms and process and tasks that apply in each case including things like the I-129 form, I-485 form, medical visits, etc. depending on what you are changing too.

The proposed US Immigration Reform of 2013 proposes to change a lot of these things at least for the H-1B visa by increasing the time to change to 60 days and increasing the number of available Green Cards and pathway to them. However ultimately regardless of the passage of that bill which is still tenuous as of this writing, it is important for all foreigners working in the US to understand the implications of leaving your employer.

Cj