Today’s guest is Jason Finkelman. Jason is an immigration lawyer, and you may remember that he’s been a guest on Breaking the Borders once before. Then, he talked mainly about visas for exceptional and extraordinary talent. This time he explains the H-1B visa process.
The H-1B is a temporary non-immigrant visa that allows a foreign national to work in the US in a job that generally, minimally requires a bachelor’s degree to perform. It allows presence in the United States for up to three years, with an extension of up to three more years, for a total of six years. This would be for work for a US employer, and all employers are considered equally.
There are 85,000 visas available each year. Over the past few years, US Citizenship and Immigration Services (USCIS) received more than 85,000 H-1B visa petitions in the first week of April. This year the H-1B filing date is April 3rd. If the visa is approved, it becomes effective on October 1.
Because of the surplus, a computer randomly selects the 85,000 that will be evaluated by hand. Twenty thousand visas are set aside for those with a US Master’s degree or higher.
Jason talks about the special challenges facing founders. The US employer has to have ownership of the company, and control over the employee.This can be difficult for startups. The past several years USCIS has been more observant to make sure that the person seeking the visa isn’t a controlling partner.
The US Department of Labor works to guarantee that immigrants do not become cheap labor. A labor condition application is filed and shows the prevailing wages for the selected job; the employer has to pay the foreign national no less than the prevailing wage
The Cap-Gap program can help students who currently have work authorization while studying to continue working between graduation and the October 1 H-1B start date.
Jason emphasizes that it’s urgent to start immediately to be able to get all the paperwork processed before the deadline. It’s already late to be starting, he says, but holding out until mid-March will make it impossible.
Both the new administration and Congress are talking about changes to all visa processes, but Jason doesn’t see legal changes before the H-1B deadline.But he does urge everyone to work closely with a qualified attorney to make sure their application is filled out to the highest standards. The change in tone around immigration issues will most likely encourage immigration officials to look more closely at all applications.
Our talk also turns to last year’s entrepreneur paroles which allowed two years in the United States. This was done by executive action by President Obama, and it’s expected that President Trump will do away with it, but nothing has happened yet.
We also discuss traveling to the US on a visa, because as we’ve seen, the environment has changed and remains in flux. Jason recommends carrying proof of evidence that you intend to return home. Now, he also recommends carrying a letter from your employer that you remain employed, pay stubs, a copy of your apartment lease, or similar materials that show your ties. Most likely, he says, nothing will happen, but in case an immigration officer asks, it’s helpful to have.
Jason encourages anyone to reach out to him with their questions; it’s often quicker than researching on the internet, and you’ll be sure to get the correct answer.
jason [at] finkelmanlaw [dot] com
512 348 8855