Friday, September 25, 2015

“Is my employer ‘large enough’ for H-1B?”

Michael: “If anything in this life is certain--if history has taught us anything--it’s that you can kill anyone. Rocco?”

Rocco: “Difficult, not impossible”

This statement by Rocco Lampone, in “The Godfather: Part II,” to answer Michael Corleone about a planned assassination, comes to mind whenever someone asks me about H-1B at a “small” employer.  That person has identified an employer that potential could petition for H-1B status for the person, but the person has concerns about the size of the employer and if it prevents H-1B.
In answering this question, the first thing I say is that I have gotten approvals for H-1B petitions for employers with as few as two people. Several more approvals have gone to employers with three people. Overall, I estimate that 35% of my approvals have involved employers with fewer than 10. I wish that I could guarantee that I will get you an approval even though your employer is small, but I can’t. I can, however, offer some perspectives on this situation, and how to improve your chances.

Please be aware that no law or regulation mandates a minimum employee number or minimum revenue for an employer in order to qualify for H-1B. On the other hand, a small employer could well receive a request for evidence (RFE) that references the size of the employer. In such a case, usually, the immigration service is concerned about three things. First, is the employer financially strong enough to pay you? Second, will you, as an H-1B person, be relatively free of non-H-1B tasks? Third, does the employer really require your position? Let’s consider each point in turn.
-          Financially strong?

A condition of H-1B status is that the employer pay you “enough”—in legal terms, that the company pay you at least the “H-1B required wage.” Therefore, an employer with a small number of employees, and especially one with low revenue numbers, could cause concern. Overcoming this issue will require the employer to show sufficient financial resources, or strong potential future business. In fact, while I don’t recommend this practice, one H-1B employer a few years ago actually refused to disclose revenue and income figures on the H-1B petition, requiring me to use alternate means of showing financial strength. This petition ultimately was approved, though I wasn’t happy about the process.
-          Free of non-H-1B tasks?

A key requirement of H-1B status is that your job be sufficiently complex. The immigration service doesn’t want an H-1B person, therefore, to be spending significant time doing non-H-1B type work. For example, they probably don’t want an H-1B person to be spending all or most of his or her time sweeping the floor, sorting mail in the mailroom or answering the main company telephone number as a receptionist. The immigration service believes, rightly or wrongly, that such things have a greater likelihood in a smaller company. Therefore, you and your employer must show that such is not the case.
-          Is the position really required?

If an employer is small, then the service may question whether the job is really necessary at all for that employer. This issue is particularly relevant for the person who works only with people inside the employing organization, rather than for customers or clients.  An employer of only three or four people, therefore, might have trouble justifying the hiring of an internal accountant. On the other hand, that same employer might have an easier time if it were an accounting firm, and the person is being hired to be billed out to do accounting for external clients. Therefore, make sure your employer has sufficient workload to justify your hiring.
If you have an H-1B opportunity from a small employer, I wish you success. Remember, getting approval is difficult, not impossible.

The information above does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
We Chat: calvin_t_sun

Tuesday, September 15, 2015

It’s job time: do you know where your documents are?

Many years ago, a New York City television station ran advertisements at night, asking the question, “It’s 10 p.m. Do you know where your children are?”

You may not have children and it might not be 10 p.m. Nonetheless, you, as an international student, might soon be in a position to get a U.S. job. Whether that job is via a green card or via H-1B or other nonimmigrant status, certain documents could be important to that process. I am not saying that the list below covers every such document you might need. I also am not saying that you will necessarily need every document that I list below, or that you necessarily have every such document right now. Nonetheless, the documents below might be important. Having them in hand now can save you time and frayed nerves, because you could avoid scrambling to meet any filing deadlines.

Generally speaking, when submitting documents to the immigration service, photocopies are acceptable rather than the original document. Needless to say, any such photocopy should be a true copy of an unaltered original document. Any other photocopy could cause a person serious problems. In addition, any document not in English should have an accompanying certified English translation. That is, the translation should contain a statement signed by a person other than yourself. The statement should say that the person who signed is fluent in English and the other language and that the translation is accurate. The statement also should describe the translated document. The person who signs this translation should also give his or her address and the date of signing.

-          Passport (in particular, the information page)

-          Passport page showing the visa stamp you used to enter the U.S.

-          Employment authorization document

-          I-20

-          I-94

A few years ago, the Customs and Border Protection (CBP) agency stopped issuing hardcopy I-94s.  Now, I-94s are stored at the ICE web site, and are downloadable from there.

-          Birth certificate

You are unlikely to be required to submit a birth certificate for an H-1B filing. However, you WILL need one in order to adjust status, that is, to receive a green card while remaining in the U.S.

-          Official transcripts from previous institutions you graduated from

Such transcripts might be important if a prospective employer is filing an H-1B petition for you. Because of issues of timing that involve your having earned a degree for your current studies, versus the required time period for filing an H-1B petition, you might need to rely on previous rather than current academic work.

Any transcript that you submit to the immigration service should be an official transcript. That is,  it should come from the university office that issues such transcripts, generally the registrar. The transcript generally should contain the insignia of the university and a signature from a responsible university official. Ideally, the transcript also should indicate the degree awarded and the date of awarding.

In other words, a “do it yourself” screen print of a transcript, such as from your Banner or Blackboard account, will not be acceptable.

If the transcript is from a non-U.S. institution, and you are relying on such a degree for your filing, you should consider getting an academic equivalence report. Companies that provide such reports will review your transcript and then provide a statement, if applicable, that the degree associated with the transcript is associated with a particular U.S. educational level degree.

Having these documents might make your filing process easier and less stressful.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723,, We Chat calvin_t_sun