Guidelines for Sponsoring H1-B Visas and Permanent Residents

Pace University Attorney Information:

Terry K. Friedman

Weisberg, Friedman & Klapisch, LLP

261 Fifth Avenue, Suite 2000

New York, New York 10016-7701

www.wfkny.com

 

Frequently Asked Questions:

1)      What is the difference between an H-1B Visa and Permanent Resident status?

Permanent Resident Status

H-1B Visa Status

Permanent Resident card holders are not limited to the amount of time they are allowed to legally remain in the United States.

H1-B visas are temporary, non-immigrant visas that are typically issued for a maximum of six years in two three-year allotments.

A Permanent Resident card allows a person to work in any job or industry anywhere in the U.S. or its territories.

H1-B visas are working visas and are limited specifically to the sponsoring employer. The visa holder cannot change jobs or move elsewhere without also changing their visa.

Permanent Resident card holders can come and go from the U.S. at will as long as their card has not expired and they have a valid passport.

H1-B visa holders must have a valid H1 visa stamp placed in their passport from a U.S. consulate abroad, (not applicable for Canadians) and their traveling is limited to the dates specifically identified on the visa stamp. Some H1-B holders are only allowed a certain number of trips in and out of the U.S. during the period that the H1-B visa is valid.

Permanent Residents can apply for U.S. citizenship after 5 years, (or 3 years if married to a U.S. citizen) assuming they have no serious criminal convictions.

H 1-B visa holders must first obtain their Permanent Resident Card and then can apply for U.S. citizenship after 5 years, (or 3 years if married to a U.S. citizen) assuming they have no serious criminal convictions.

Permanent Residents are generally given more leniency than an H1-B visa holder if they commit a crime in the U.S, depending on the severity of the crime.

H1-B visa holders are under strict scrutiny and can have their visa revoked and be deported for any simple or lesser criminal matter such as a DUI.

Permanent Resident holders are generally given the same rights and privileges as U.S. citizens except for the right to vote.

H1 visa holders are considered "guests" of the country and cannot take part in many of the rights and privileges given to permanent residents.

2)      For which employees may I file for?

·         Priority Workers

·         Professionals with Advanced Degree or Persons with Exceptional Ability

·         Professional or Skilled Workers

·         Special Immigrants

 

3)      What does the petition do for my employee?

·         Filing a petition shows that you have the intent to hire the employee upon the approval of the petition.

a)       By sponsoring a candidate for an H1-B visa, the involved hiring department at Pace promises the USCIS that it will pay the employee the prevailing wage stated in its petition and, if Pace decides to let the employee go prior to the expiration of the H-1B petition time (a maximum of three years initially, with the possibility of an extension for another three years), then the hiring department at Pace is responsible for the employee’s transportation back to his home country.  If the employee continues to work for Pace and is not prematurely let go, Pace has no obligation to the employee that is any different from any other employee in the absence of an employment contract, except, to continue to pay the prevailing wage specified in the petition, or more.

b)     By sponsoring a candidate for permanent resident status, the employer provides the employee with a “place in line” to immigrate to the United States and become eligible to do so permanently.

Important Abbreviations:

·         ­DOL – Department of Labor

·         LCA – Labor Condition Application

·         USCIS – United States Citizenship and Immigration Services

 

The H-1B Visa Process

Part I: Application to the U.S. Department of Labor for the individual labor certification

Ø  To obtain the certification, Pace must provide the immigration attorney with the proposed salary and a job description. Once the attorney determines what the prevailing wage is from the DOL, they will submit the Labor Condition Application to the DOL electronically. The certification should be received in about 7 days.

Part II: Filing a petition with the U.S. Citizenship and Immigration Services to classify the beneficiary in the employment

Ø  The certified Labor Condition Application

o   The beneficiary will be asked to provide his immigration documentation, his academic credentials, and some basic information.

o   The petition is filed with the USCIS – It is currently taking the office about 3 months to approve H-1B petitions.

H1-B Estimated Fees:

Applications/ Materials

Fees

Attorney’s fee for an H1-B petition

$2,000.00

Other disbursements/Filing Fees

$825.00

Federal Express charges

$50.00

Miscellaneous (photocopies, telephone, fax)

$50.00

Total Estimated Cost:

$2925.00

Cost of extending an H1-B visa (additional three years):

The attorney’s fee to the hiring department at Pace for H-1B extensions where they filed the original petition is $1000.00, plus the current filing fee payable to the USCIS is $325.00.  There are minor additional disbursements for photocopying (multiple copies are required) and for Federal Express to ship the petition to the USCIS.

Total Estimated Cost: $1,425.00

 

 

The Permanent Resident Process

Part I: Pace must file a request for a prevailing wage determination.

Ø  Provide the DOL with a job description, and the requirements for the position. After about 8 weeks the DOL will send back their determination.

Ø  Once Pace has the prevailing wage determination, the employer begins a recruitment process to demonstrate to the DOL that it could not locate a qualified U.S. worker for the position. 

Part II:  Filing the Labor Condition Application

Ø  If the case is approved without an audit, approval usually takes about 120-150 days. If the case is selected for an audit, then this part of the process may be delayed for a year or more.

Part III: Filing a petition with the USCIS  

Ø  Once the LCA is approved, the I-140 Immigrant Worker petition can be filed with the USCIS.

o   This must be filed within 180 days of the LCA approval

o   It is currently taking the USCIS about 5 months to approve the petitions

Part IV:  Filing a Permanent Resident Application

Ø  Either simultaneously with the Immigrant Worker petition, or at a later time, depending upon quota availability, the applicant will file an application to adjust status to that of a lawful permanent resident with the USCIS.  This application takes approximately 10 months to a year to complete. 

Important Note:

The permanent resident case can be started before or after the H-1B is filed; it is entirely up to the employer. The employer does NOT have to wait until the alien is in his or her second year of H-1B status.  It is best to be certain to file the permanent labor condition application at least one year before the alien’s H-1B maxes out (six years) in order to be able to continue to extend his H-1B while awaiting the successful conclusion of the permanent resident process

 

Fees:

Listed below are the attorney fees and disbursements associated with the Permanent Resident Application. This chart is based on an individual labor certification, the immigrant worker petition, and the application for adjustment of status to that of permanent resident. The Labor Condition Application must be paid by the hiring department. All other fees may be paid by the alien or by the hiring department, as you prefer.

Applications/ Materials

Fees

Attorney’s fee for obtaining permanent labor certification

$6,000.00

Recruitment efforts (newspaper/internet ads)

$1,000.00 - $2,000.00

Miscellaneous (photocopies, telephone, fax)

$50.00

Attorney’s fee to process the petition (I-140)

$2,000.00

Filing fee for immigrant worker petition

$580.00

Attorney’s fee for the application for adjustment of status

$1,500.00

Filing fee for adjustment of status to that of a lawful permanent resident

$1,070.00

Federal Express charges

$50.00           

Total Estimated Cost:

$12,250.00 - $13,250.00

 

*Per the University’s Policy on Hiring Foreign Nationals, it is the involved hiring department, NOT Pace University as a whole that is expected to incur the cost of sponsoring H1-B Visa or Permanent Residents.