BDM Immigration Law Presentation To L&C Sept 2014 2

Employment Based Immigration:
Analysis of EB Related Provisions of the

Immigration and Nationality Act (Part 2)
Bradley D. Maier
Schwabe, Williamson & Wyatt
503-796-2440 | bmaier@schwabe.com
Copyright Schwabe, Williamson
Wyatt.
2014. All rights reserved
October&1,
2014
Schwabe, Williamson & Wyatt |
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
NONIMMIGRANT EMPLOYMENT
BASED VISA CATEGORIES
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
Visa Bulletin
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
September 2014
Portland, OR
September 2013
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
U.S. Immigration law currently provides for a variety
of nonimmigrant (nonpermanent) guest worker visa
categories (8 C.F.R. 214.2). The categories that
are most commonly used include:
E-1/E-2 Treaty Trader/Investor

H-1B Specialty Occupation
L-1 Intracompany Transferee
O-1 Extraordinary Ability or Achievement
P-1 Professional Athletes and Entertainers
TN Treaty National
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
U.S. Immigration law currently provides for a variety
of nonimmigrant (nonpermanent) guest worker visa
categories (8 C.F.R. 214.2). Other less used
categories include:
H-2B Temporary or Seasonal Workers

J-1 Exchange Visitor
R-1 Religious Worker
Other: B-1 Visitor For Business
F-1 International Student
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
General Considerations
Gather info and analyze:
What is job/purpose?
Nationality?
Timeframe? (Border app or premium processing)?
U.S. entity involved?
Size of entities in terms of # of employees and revenue.
Applicant and his/her credentials.
Current/prior immigration status (keeping in mind time limitations on some
categories).
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
General Considerations
Gather info and analyze:
What is job/purpose?
Nationality?
Timeframe? (Border app or premium processing)?
U.S. entity involved?
Size of entities in terms of # of employees and revenue.
Applicant and his/her credentials.
Current/prior immigration status (keeping in mind time limitations on
some categories).
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview

INA 101(a)(15)(H)(i)(b)/8 C.F.R. 214.2(h).
Timing considerations due to limited number
of visas and tied to fiscal year. There are
65,000 H-1B visas available per year + an
additional 20,000 set aside for holders of
U.S. earned masters degrees.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
Total: 76,743
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Demand
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Demand
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview

Position must involve a specialty
occupation as defined by INA 214(i)(1)
and 8 C.F.R. 214.2(h)(4)(ii), as requiring:
Theoretical and practical application of a body of

highly specialized knowledge, and
Attainment of a bachelors or higher degree in
the specific specialty (or its equivalent) as a
minimum for entry into the occupation in the
U.S.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview

To qualify, employer must demonstrate that:
A bachelors or higher degree or equivalent is normally

the minimum requirement for entry into the occupation;
Degree requirement is common in the industry in parallel
positions among similar organizations OR the particular
position is so complex or unique a degree is required;
Employer normally requires a degree or equivalent; OR
Nature of specific duties are so specialized or complex
that knowledge required to perform the duties is usually
associated with a particular degree.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview

Key additional requirements:
Employee must possess the required degree (or

equivalent).
Employer must be willing to pay the required
wage (higher of actual wage or prevailing wage)
free and clear.
Employer must obtain certified Labor Condition
Application from DOL before filing with USCIS.
Employer must provide notice of hiring to
affected work force or bargaining representative.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview

Key additional requirements (cont.):
There must be a true employer/employee relationship.
Employer must pay for reasonable cost of transportation
back home if employee terminated early.
There must not be a strike or lock out in place.
No test of labor market required but may not displace a
U.S. worker or adversely affect the wages and/or working
conditions of U.S. workers.
Visas must be available. Timing (and luck) are key.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview
Hypothetical 1:
Josies Garage is relatively small with only five employees total.
Josie
currently employs Peter, a citizen of Australia and recent graduate from
PSU with a degree in finance and accounting. Shes been employing Peter
based upon his post-graduation temporary Employment Authorization
Document that is valid for another six months. Hes also a skilled auto
mechanic. Shed now like to employ him full-time. Hes told her that she
should be able to get an H-1B for him. Do you agree?
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview
Hypothetical 1:
Josies Garage is relatively small with only five employees total.
Josie
currently employs Peter, a citizen of Australia and recent graduate from
PSU with a degree in finance and accounting. Shes been employing Peter
based upon his post-graduation temporary Employment Authorization
Document that is valid for another six months. Hes also a skilled auto
mechanic. Shed now like to employ him full-time. Hes told her that she
should be able to get an H-1B for him. Do you agree?
Assuming a qualifying position, what if H-1B visas were gone for the year?
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview
Hypothetical 2:
Excelsior Inc. is a medium sized software development company based in
Seattle. The companys biggest client is Microsoft. Bhanu is a citizen of

India and one of the companys software engineers. She received an
undergraduate degree and masters degree in computer science from a
university in India. Shes currently working for the companys subsidiary in
India. The company would now like to employ her in the U.S.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview
Hypothetical 2:

Start up phase without a lot of capital? Employees putting in sweat equity.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
H-1B Brief Overview
Hypothetical 2:

Start up phase without a lot of capital? Employees putting in sweat equity.

What if parent company was Indian?
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
Employment Based Permanent

Residence
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus
any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of
Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any
numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level,
plus any numbers not required by first and second preferences, not more than 10,000 of
which to "*Other Workers".
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which
reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside
for investors in regional centers by Sec. 610 of Pub. L. 102-395.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Residence
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Residence
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Residence
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
BASIC LABOR CERTIFICATION

REQUIREMENTS AND CAVEATS
INA 212(a)(5)(A)(i). 8 USC 1182(a)(5)(A)(i). 20 C.F.R. 655.10.
A person is inadmissible if seeking entry to perform

skilled/unskilled labor unless the Secretary of Labor has certified
to the Secretary of State and AG that:
Not sufficient U.S. workers able, willing, available and qualified at the
time and place of alien entry.
LC must establish that the foreign worker will not displace U.S. workers
or adversely affect wages or working conditions of U.S. workers.
Must demonstrate through evidence that no minimally qualified, able
and willing U.S. worker is available.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

The job offered must be permanent and full time (but may be prospective). 20
C.F.R. 656.3.
There MUST be proof that the immigrant has the required job experience,
education, training and/or any special requirements prior to joining employer
(note that experience gained with the petitioning employer usually does not
countparticularly if it was in the same position being offered to the
immigrant). 20 C.F.R. 656.17(h).
The employer must be willing to pay the prevailing wage (which must be
obtained from DOL prior to commencing recruitment).
The employer must demonstrate sufficient income to enable it to pay the
prevailing wage. 20 C.F.R. 656.10(c)(3).
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

There must be a sense (based on the occupation
involved, employers recent and past history, state of
economy locally and nationally) that the recruitment
process will reveal a credible shortage of U.S.
workers.
The immigrant must not be otherwise inadmissible
under the immigration laws.
The foreign national employee must have enough
time left available in his or her temporary status to get
through the labor certification process.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Advertised requirements must be actual minimum requirements to
do the job satisfactorily and may not impose requirements that are
overly restrictive. 20 C.F.R. 656.17(h).
Employer must not have hired someone with lesser qualifications for
the same position in the past.
Employer may not tailor the requirements for the position to the
foreign national.
With very few exceptions, employer may not require foreign language
ability.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Employer may not require experience or skills that may be obtained in
the occupation during a reasonable period of on the job training. 20
C.F.R. 656.17(g)(2).
May not combine occupations. 20 C.F.R. 656.17(h)(3).
Alternative requirements must be substantially equivalent to the
primary requirements. 20 C.F.R. 656.17(h)(4).
Employee may not have blood family relationship with the employer.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Job opportunity must not be vacant because the former worker is on
strike or locked out. 20 C.F.R. 656.10(c)(6).
There must not have been a layoff within six months of filing the LC in
the same or a related occupation. 20 C.F.R. 656.17(k).
Employee may not pay fees and costs in the LC process even if the
attorney represents both the employer and the employee. Employer
may not seek or receive any payment of any kind for any activity
related to obtain the LC, including payment of attorneys fees. 20
C.F.R. 656.12(b).
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Hypothetical 1:
Back to Josie and her garage.
Hes now employed in H-1B status as an

accountant. Hes also been working for her as a mechanic and she
couldnt run her business without him. Shed like to employ him
permanently and help him obtain a green card. Good candidate? What
are the options?
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Hypothetical 2:
A large athletic wear company based in Beaverton currently employs
Yolanda, a citizen of Peru, as a footwear designer. Before joining the

company, she was the creative talent behind Christian Louboutin and was
the person who came up with the idea of the (now trademarked) red sole.
It was because of her genius that the company hired her. It doesnt want to
lose her and wants to help her become a permanent resident.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Hypothetical 3:
Back to Excelsior, the medium sized software development company whose client is
Microsoft. Bhanu has a masters degree in software engineering from a university in
India and work experience gained with the companys subsidiary in India. Shes
currently employed in H-1B status but the company would like to keep her indefinitely.
What can they do?
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Hypothetical 3:
What can they do?
What if she held a U.S. PhD?
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

Hypothetical 3:
What can they do?
What if she held a U.S. PhD?

What if she was the senior manager responsible for the Microsoft account?
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
Matter of Kazarian
Kazarian v. U.S. Citizenship and Immigration Services, 580 F.3d 1030

(9th Cir. 2009).
Kazarian v. U.S. Citizenship and Immigration Services, 596 F.3d 115

(9th Cir. 2010).
Rijal v. U.S. Citizenship and Immigration Services, Case No. C10709RAJ, U.S. District Court, Western District of Washington, February
22, 2011).
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC
Thank you
Bradley Maier is an attorney with the Northwest law firm of Schwabe, Williamson & Wyatt where
he focuses on business immigration and customs law and compliance. He assists foreign and
domestic companies with a wide variety of immigration matters to acquire foreign talent and key
personnel. He also advises companies regarding I-9 compliance and U.S. customs. A native
Oregonian, he attended Lewis & Clark Law School, Reed College and Portland State University.
Before law school, Mr. Maier directed immigration counselingprograms for two local non-profits
as an Accredited Representative. His professional accomplishments have been recognized by
Chambers USA, Oregon Super Lawyers, and the Daily Journal of Commerce. Mr. Maier is an
active member of the American Immigration Lawyers Association (AILA) and served as Chapter
Chair of the Oregon Chapter between 2010 and 2012.
Portland, OR
Bend, OR
Salem, OR
Seattle, WA |
Vancouver, WA |
Washington, DC

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Employment Based Immigration:

Analysis of EB Related Provisions of the

Schwabe, Williamson & Wyatt |

Schwabe, Williamson & Wyatt |

Schwabe, Williamson & Wyatt |

Schwabe, Williamson & Wyatt |

E-1/E-2 Treaty Trader/Investor

Schwabe, Williamson & Wyatt |

H-2B Temporary or Seasonal Workers

Schwabe, Williamson & Wyatt |

Gather info and analyze:

Schwabe, Williamson & Wyatt |

Gather info and analyze:

Schwabe, Williamson & Wyatt |

Schwabe, Williamson & Wyatt |

Schwabe, Williamson & Wyatt |

H-1B Brief Overview

Schwabe, Williamson & Wyatt |

Schwabe, Williamson & Wyatt |

Schwabe, Williamson & Wyatt |

H-1B Brief Overview

Theoretical and practical application of a body of

Schwabe, Williamson & Wyatt |

H-1B Brief Overview

A bachelors or higher degree or equivalent is normally

Schwabe, Williamson & Wyatt |

H-1B Brief Overview

Employee must possess the required degree (or

Schwabe, Williamson & Wyatt |

H-1B Brief Overview

H-1B Brief Overview

Josies Garage is relatively small with only five employees total.

Schwabe, Williamson & Wyatt |

H-1B Brief Overview

Josies Garage is relatively small with only five employees total.

H-1B Brief Overview

Excelsior Inc. is a medium sized software development company based in

Seattle. The companys biggest client is Microsoft. Bhanu is a citizen of

Schwabe, Williamson & Wyatt |

H-1B Brief Overview

Excelsior Inc. is a medium sized software development company based in

Seattle. The companys biggest client is Microsoft. Bhanu is a citizen of

Start up phase without a lot of capital? Employees putting in sweat equity.

Schwabe, Williamson & Wyatt |

H-1B Brief Overview

Excelsior Inc. is a medium sized software development company based in

Seattle. The companys biggest client is Microsoft. Bhanu is a citizen of

Start up phase without a lot of capital? Employees putting in sweat equity.

Employment Based Permanent

Schwabe, Williamson & Wyatt |

Employment Based Permanent

Schwabe, Williamson & Wyatt |

Employment Based Permanent

Schwabe, Williamson & Wyatt |

Employment Based Permanent

Schwabe, Williamson & Wyatt |

BASIC LABOR CERTIFICATION

INA 212(a)(5)(A)(i). 8 USC 1182(a)(5)(A)(i). 20 C.F.R. 655.10.

A person is inadmissible if seeking entry to perform

Schwabe, Williamson & Wyatt |

BASIC LABOR CERTIFICATION

Schwabe, Williamson & Wyatt |

BASIC LABOR CERTIFICATION