The US Visa System consists of nonimmigrant visas and immigrant visas. Nonimmigrant visas are issued to foreign nationals who wish to come to the United States temporarily for a visit or work. The type of visa that one should be applying for will depend largely on the purpose of one’s visit. For example, a diplomat sent to the United States to work for an embassy would be applying for an A visa. A general description of visas available from the State Department website can be found here. Please be advised that each visa has its own unique set of requirements and we strongly recommend that contacting an experienced lawyer to assist in determining what type of visa that you would be qualified for.
F-1 Visa for Foreign Students
[read more=”Study USA Program” less=”Study USA Program”]With the rise of China’s economic power, more and more Chinese families are sending their children to study overseas. Not only has the number of Chinese students studying abroad is on an upsurge, the age of the students is likewise getting younger. In the late 70s to early 90s, most Chinese students only considered studying abroad after finishing their undergraduate study. However, these students found that the language and cultural barrier often made it more difficult for them to study and to assimilate into the mainstream of society. As more Chinese families acquire financial wealth, they see that giving their children an education abroad earlier in their lives will provide them with a distinctive advantage later on, in their pursuit of a career. Consequently, there is a great degree of interest for these families to send their children abroad to study, some as young as middle school age.
There are several advantages to sending children to study in the United States at a younger age. First, starting from the high school, students’ academic performance is a critical factor in the college admission process. The sooner a student attends high school in the United States, the better the chance that the student would have to quickly adapt to the environment instead of spending time breaking through the cultural and language barrier. This would greatly increase a student’s chances in getting admitted to a higher ranked university.
Before deciding whether to send their children to study abroad, many Chinese families’ main concern is, rightfully, the well-being and safety of their children. A solution to this concern is boarding schools. A boarding school is an educational institution that has living accommodations for its students. A student attending boarding school is under constant care and supervision of the school administration. where the school becomes intricately involved not only in the student’s academic performance, but also contributes to the social development and basic well-being of the student. Another attractive factor about this is that boarding schools are generally single-sex schools and smaller in size, which are easier for school administrators to manage. Finally, boarding schools generally offer a stronger academic curriculum and place heavy emphasis on their students’ admission to top ranked universities; boarding schools are, therefore, more willing to mobilize all available resources to prepare students for university examinations.
To meet the needs of these families, we, as a law firm with many years of experience representing educational institutions, have designed a comprehensive program to service these families and their children. Highlights of our program are as follows:
- We have an up-to-date list of boarding schools throughout the United States that offer excellent academic experience with the ability of issuing I-20. For a detailed list, click here.
Based on their personal preference and needs, we will work with the families and students to select a school that is best suited for all parties.
- Our law firm will represent the students in their application process, which includes, but is not limited to, the following: arranging students for telephonic interview, assisting in documentary preparation, such as application completion, transcript submission, recommendation letter submission, etc., to secure an admission approval from the school of their choice.
- We will work with the school to prepare the I-20 and all necessary visa application documents.
- We will prepare the students for consular interview.
- Once the students receive the visa and arrive in the United States, we will have staff taking the children from the airport to the school, although we strongly encourage the families to come with the children for the school orientation day (optional service).
- We will assist the families in applying for a visitor visa to come the United States to visit their children (optional service).
- We will assign each student a staff who will be responsible for the needs of the students and the students will be provided a 24-7 emergency contact number should such need arises (optional service).
Private boarding school tuition and boarding fees range from $35,000 to $45,000 U.S. dollars per year.
If you are interested in looking into the possibility of sending your children to the United States to study, please schedule a confidential appointment to meet our staff. We will explain the entire process to you and answer all your concerns. We will go over the school information with you and work with you and your child to select a school. If you are not completely sure whether a school is a good fit for your family, we can help you and your child obtain a visitor visa to tour a number of private schools in the United States before you make a final decision.
Please note that, in the United States, the school year for private schools, like most public schools, starts in August/September of each year. The deadline for submitting an application generally ends in December of the preceding year, and the admission decision will be sent out in February or March of the following year. Once a child has been admitted to attend a private school, the student must apply for a student visa, the processing of which may take several months to complete.
If you are interested in our “Study USA” Program, please contact Michael W. Lin, Esq.
H-1B Specialty Occupation
[read more=”General Description of H-1B” less=”General Description of H-1B”]H-1B visa is a non-immigrant visa used to permit an alien worker to enter the United States temporarily for the purpose of employment in a position which requires specialized training/knowledge. The position must require at least a bachelor’s degree, or equivalent, in a field that is related to the position offered. If the alien worker does not have a bachelor’s degree in a related field, three years of specialized training and/or work experience must be demonstrated for each college year the alien worker lacks.
Before the alien worker can begin working for you, your company must file an H-1B visa petition on behalf of the alien worker with the US Citizenship and Immigration Services (USCIS). The alien worker is not authorized to begin the employment with your company until the petition is approved. For the initial petition, you may request employment authorization for a maximum period of three years. Before the expiration of the approved petition, your company may file an extension petition for another period of three years. The law permits an alien worker to remain in the United States under H-1B status for a maximum period of six years. Note that H-1B employment is employer specific, which means that the alien worker is not authorized to work for anyone else except for the petitioning employer. You should also know that H-1B employment is job specific. Certain changes in the employment situation can affect the approved H-1B petition, the labor condition application, and your company’s obligations. The law requires the employer to file a petition to amend the approved H-1B petition if a material change occurs in the alien worker’s H-1B employment. Material changes may include, but are not limited to, the following: change in job location to another metropolitan area, significant modification and/or addition to the duties and responsibilities, reduction in alien worker’s salaries, termination of the employment or a labor dispute.
Before submitting a petition to the USCIS, your company must first submit an ETA9035 Labor Condition Application (hereinafter as “LCA”) to the United States Department of Labor (DOL) establishing that the conditions listed below have been met and will continue to be met for the duration of the H-1B employment.
The alien worker will be paid at a wage rate that is at least the “actual wage rate” for that job at the worksite, or the “prevailing wage rate” in the area of the intended employment, whichever is higher. The alien worker will be paid for non-productive time. The company must offer the alien worker the benefits on the same basis as the US workers. The employer will not make “unauthorized deduction” on the alien worker’s wage rate.
The H-1B employment will not adversely affect the working conditions of others similarly employed, i.e. , the vacation, shifts, fringe benefits and other conditions of work of the alien worker are not substandard;
There is no strike or work stoppage involving the position at the worksite; and
Notice of the LCA application has been provided to the employees at each worksite where an H-1B will be employed. Notice is given by posting for ten consecutive days a copy of the LCA in two conspicuous locations at the worksite, and a copy of the LCA must also be given to the alien worker before he or she starts working.
Evidence of your attestations to the labor conditions must be kept in a public access file (PAF) and made available for public inspection at the worksite or at your company’s principal place of business in the U.S. within one day of filing the LCA. The PAF must be kept for a minimum of one year after the end date of the authorized period of stay or the date of employment termination, whichever occurs earlier. The PAF must contain the following documentation:
- A copy of the certified ETA9035 and ETA9035CP
- Memorandum in support of the above conditions
- Prevailing Wage Determination and Similarly employed employee worksheet
- Summary of employee benefits
- Completed internal posting notices
Although compliance with the LCA is primarily complaint-driven, the DOL may also investigate on its own accord. If the DOL determines that there was a violation, the employer may be required to pay a civil penalty, and the employer may be barred from petitioning or extending petitions for foreign employees for at least one year. Additionally, whether or not the above penalties are imposed, the employer may be required to pay back wages to all Alien Workers in a particular classification. No determination may be made without a full hearing procedure.
 H-1B sponsorship is possible for part-time position. If the alien worker is currently under H-1B status working for another company or has been previously granted H-1B status, s/he may be eligible to begin H-1B employment with your company once H-1B visa petition is properly filed with the USCIS. Please consult with us before placing the alien worker to work. Alien worker may be eligible for extension of H-1B status beyond the 6 year limitation if s/he qualifies for one of the following conditions prior to the expiration of the 6 year H-1B limit: 1. Labor certification application filed on behalf of the alien worker has been pending in process for at least 365 days; and/or 2. I-140 visa petition has been approved for the alien worker but the visa number is not yet available.[/read]
Employer and Alien Worker must comply with the following provisions during the employment of Alien Worker under the terms of H-1B status.
1. Once H-1B visa petition is approved for Alien Worker, Employer must read the approval notice carefully to see if the approval provides Employer with the authorization to begin employing Alien Worker. If such authorization is granted, Employer and Alien Worker must properly complete Form I-9 before the employment is to begin.
2. If the H-1B approval notice requires Alien Worker to first apply for an H-1B visa abroad and be admitted with said visa before the employment can be authorized, Employer cannot employ Alien Worker until s/he obtains an H-1B visa and is admitted to the U.S. pursuant to that visa. Once Alien Worker has arrived in the U.S., Employer must begin Alien Worker’s employment within 30 days from the date of arrival. Make sure to ask Alien Worker to complete Form I-9, before employing him/her. Employer must examine and verify Alien Worker’s I-94 and visa stamp page.
3. If Alien Worker obtains his/her H-1B status through change of status in the U.S., or the existing H-1B visa has expired or is no longer valid, and Alien Worker wishes to travel abroad, s/he must obtain a new H-1B visa from US consulate before returning to the U.S. Employer must provide the following documents to the Alien Worker to ensure his/her successful application for an H-1B visa.
a. The original H-1B approval notice (Form I-797) (Make sure Employer retrieve the original of the approval notice from Alien Worker after his/her H-1B visa application);
b. A complete copy of the visa petition;
c. A letter confirming Alien Worker’s employment status with the Employer; and
d. Most recent pay statements, if readily available.
4. IMPORTANT!! Whenever Alien Worker travels abroad, s/he will need to go through inspection at the time of returning to the U.S. The Department of Homeland Security (DHS) will issue a new I-94 to Alien Worker to reflect his/her legal status as well as the duration of stay. Under certain circumstances, DHS has known to issue I-94 with shorter period of validity than the validity of the H-1B visa or approved visa petition (e.g. passport expiring before the expiration of the approved visa petition). It is highly recommended that Alien Worker carefully review the stamp that the immigration inspector has placed on the I-94 before leaving the inspection station. If the mistake or discrepancy is caught immediately, then it can be corrected. In a situation where the DHS refuses to correct the validity date or the Alien Worker simply fails to catch the discrepancy, then the validity of that I-94 controls, which means that Alien Worker can only remain and work in the U.S. no longer than the expiration date as authorized on the I-94.
5. Employer’s authorization to employ Alien Worker is only valid as long as Alien Worker’s I-94 remains unexpired. Alien Worker’s legal right to work for Employer is based on the validity of I-94, not the visa itself. When Employer completes Form I-9, make sure it list the expiration of I-94, instead of the expiration of the visa, as the validity of the employment authorization. Employer should develop a policy to ask Alien Worker to provide the most recent I-94 if and whenever s/he returns to the U.S. after traveling abroad. Verify the most recent I-94 with the information on the I-9 file for Alien Worker.
6. Alien Worker must be aware of his/her own legal status at all time. The legal right to remain in the U.S. is governed by the validity of I-94. Alien Worker can only work for Employer pursuant to the terms and conditions of the approved petition. Alien Worker must bring to Employer’s attention if his/her I-94 will expire within 7 months so to give Employer sufficient time to prepare for filing an extension petition before I-94 is expired (failure to file extension petition before I-94 expires will render Alien Worker out of status). Alien Worker and Employer are hereby advised that, once the extension petition is filed before the expiration of I-94, Alien Worker may continue working for an additional 240 days (provided that the extension petition was timely filed before the expiration of I-94). Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision. Moreover, if H-1B extension is not granted by the end of that 240 day period, Alien Worker must be removed from employment.
7. If Alien Worker’s I-94 has expired and no extension petition or change of status application has been filed, Alien Worker would begin to accrue unlawful presence. If Alien Worker accrues 180 days of unlawful presence and then departs from the U.S. thereafter, Alien Worker will become inadmissible for 3 years. If Alien Worker accrues 1 year of unlawful presence and then departs from the U.S., there will be a 10 year bar.
8. Employer must file an extension petition with the USCIS to extend Alien Worker’s H-1B visa status no earlier than 6 months before the expiration of Alien Worker’s most recent I-94. Employer is hereby advised that Alien Worker is eligible to receive extension of H-1B status for an aggregate period of stay of up to six years. At the end of six year period, Alien Worker will no longer be eligible to extend his/her H-1B status, unless one of the following conditions exists:
a. Alien Worker has an employment based permanent residency process (e.g. labor certification application and/or I-140 visa petition) filed and it is pending for at least 365 days prior to reaching six year limit. Under this scenario, Alien Worker is eligible to extend his/her H-1B for one year, per each extension request; or
b. Alien Worker has an I-140 visa petition approved but because of the lack of visa number, Alien Worker is unable to file his/her I-485 application to adjust status or consular processing. In this case, Alien Worker is eligible to extend his/her H-1B for a three year period.
If either of the above scenarios does not apply, the Alien Worker must leave the U.S. may only be eligible tore-apply for H-1B visa only if s/he has stayed abroad for at least 12 months, or for whichever period necessary until his/her green card process has been pending for 365 days, which occurs first. (** certain restrictions apply)
9. Employer guarantees that it has sufficient financial resources to pay Alien Worker for the duration of employment under the terms of this petition.
10. Employer agrees to pay reasonable transportation cost to send Alien Worker to his/her home country in the event that Employer terminates the employment before the authorized period of stay as approved by the US Citizenship and Immigration Services (USCIS).
11. Employer agrees to pay Alien Worker at the rate as required by the approved petition, even if Alien Worker is being placed in a nonproductive status (i.e. benching). Failure to pay Alien Worker at the rate that is required by the approved petition will constitute direct violation of immigration law. Employer may face civil and/or criminal penalties, and complaint/lawsuit from Alien Worker. Alien Worker will be out of status if s/he does not receive the rate of pay as guaranteed by Employer.
a. Circumstances where wages must be paid. If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), lack of a permit or license, or any other reason, the employer is required to pay the salaried employee the full pro-rata amount due, or to pay the hourly-wage employee for a full-time week (40 hours or such other number of hours as the employer can demonstrate to be full-time employment for hourly employees, or the full amount of the weekly salary for salaried employees) at the required wage for the occupation listed on the LCA. If the employer’s LCA carries a designation of “part-time employment,” the employer is required to pay the nonproductive employee for at least the number of hours indicated on the I-129 petition filed by the employer with the DHS and incorporated by reference on the LCA. If the I-129 indicates a range of hours for part-time employment, the employer is required to pay the nonproductive employee for at least the average number of hours normally worked by the H-1B nonimmigrant, provided that such average is within the range indicated; in no event shall the employee be paid for fewer than the minimum number of hours indicated for the range of part- time employment. In all cases the H-1B nonimmigrant must be paid the required wage for all hours performing work within the meaning of the Fair Labor Standards Act, 29 U.S.C. 201 et seq.
b. Circumstances where wages need not be paid. If an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period, provided that such period is not subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.). Payment need not be made if there has been a bona fide termination of the employment relationship. INS regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and require the employer to provide the employee with payment for transportation home under certain circumstances (8 CFR 214.2(h)(4)(iii)(E)).
12. Employer attests that it will abide by the conditions of the certified labor condition application for the entire duration of the Alien Worker’s employment.
13. Employer agrees to immediately notify the USCIS if Alien Worker is no longer employed by Employer. It is simply not enough to terminate Alien Worker internally without notifying the USCIS. Notwithstanding the termination of Alien Worker’s employment, Employer is required to continue paying Alien Worker the proffered wage rate until at such time when Employer notifies the USCIS of the termination.
14. Employer understands that it must file an amended petition with the USCIS and/or US Department of Labor, if there is a material change to Alien Worker’s employment while under H-1B status. Material changes include, but are not limited to: reduction in the hours worked, significant changes in job duties, reduction in wages (excluding regularly scheduled merit increases), any change in location of the position to an unspecific jobsite (i.e. jobsites that have not been identified in the original petition and certified ETA9035), or transfer of Alien Worker to and/or from another entity (with a different FEIN number), even if the entity is affiliated or related to Employer. You should contact your immigration attorney immediately before any material change in the Alien Worker’s employment arises. Continued employment of Alien Worker, without filing an amended petition, after a material change has occurred may trigger a substantive violation of the terms and conditions of the approved petition, hence constituting illegal employment.
15. Employer must maintain public access file (PAF) in connection with its H-1B filing for a minimum of one year after the end date of the authorized period of stay or the date of employment termination, whichever occurs earlier. The PAF must contain the following information:
a. A copy of the certified ETA9035 and ETA9035CP;
b. Wage memorandum, explaining that Alien Worker’s wage offer is no less than the prevailing wage rate for the position or the actual wage rate paid to other similarly employed employees, whichever is higher;
c. Prevailing Wage Determination and Similarly employed employee worksheet;
d. Summary of employee benefits; and
e. Completed internal posting notices.
16. “Authorized deduction” — Employer may only make a deduction from Alien Worker’s wages according to one of the following three sets of criteria.
a.Deduction which is required by law (e.g., income tax; FICA); or
b.(ii) Deduction which is authorized by a collective bargaining agreement, or is reasonable and customary in the occupation and/or area of employment (e.g., union dues; contribution to premium for health insurance policy covering all employees; savings or retirement fund contribution for plan(s) in compliance with the Employee Retirement Income Security Act, 29 U.S.C. 1001, et seq.), except that the deduction may not recoup a business expense(s) of the employer (including attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition); the deduction must have been revealed to the worker prior to the commencement of employment and, if the deduction was a condition of employment, had been clearly identified as such; and the deduction must be made against wages of U.S. workers as well as Alien Workers (where there are U.S. workers); or
c.Deduction which meets the following requirements:
a.Is made in accordance with a voluntary, written authorization by the employee (Note to paragraph (c)(9)(iii)(A): an employee’s mere acceptance of a job which carries a deduction as a condition of employment does not constitute voluntary authorization, even if such condition were stated in writing);
b.Is for a matter principally for the benefit of the employee (Note to paragraph (c)(9)(iii)(B): housing and food allowances would be considered to meet this “benefit of employee” standard, unless the employee is in travel status, or unless the circumstances indicate that the arrangements for the employee’s housing or food are principally for the convenience or benefit of the employer (e.g., employee living at worksite in “on call” status));
c.Is not a recoupment of the employer’s business expense (e.g., tools and equipment; transportation costs where such transportation is an incident of, and necessary to, the employment; living expenses when the employee is traveling on the employer’s business; attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer (e.g., preparation and filing of LCA and H-1B petition)). (For purposes of this section, initial transportation from, and end-of-employment travel, to the worker’s home country shall not be considered a business expense.);
d.Is an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered (The employer must document the cost and value); and
e.Is an amount that does not exceed the limits set for garnishment of wages in the Consumer Credit Protection Act, 15 U.S.C. 1673, and the regulations of the Secretary pursuant to that Act, 29 CFR part 870, under which garnishment(s) may not exceed 25 percent of an employee’s disposable earnings for a workweek.
17. A deduction from or reduction in the payment of the required wage is not authorized (and is therefore prohibited) for the following purposes:
a. A penalty paid by the Alien Worker for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer.
b. The employer is not permitted to require (directly or indirectly) that the nonimmigrant pay a penalty for ceasing employment with the employer prior to an agreed date. Therefore, the employer shall not make any deduction from or reduction in the payment of the required wage to collect such a penalty.
c. The employer is permitted to receive bona fide liquidated damages from the Alien Worker who ceases employment with the employer prior to an agreed date. However, the requirements of Clause 16(c) above must be fully satisfied, if such damages are to be received by the employer via deduction from or reduction in the payment of the required wage.
d. The distinction between liquidated damages (which are permissible) and a penalty (which is prohibited) is to be made on the basis of the applicable State law. Please be advised that the corporate user fee can never be included in any liquidated damages received by the employer.
e. A rebate of the corporate user fee paid by the employer, if any, under Section 214(c) of the INA. The employer may not receive, and the Alien Worker may not pay, any part of the corporate user fee, whether directly or indirectly, voluntarily or involuntarily. Thus, no deduction from or reduction in wages for purposes of a rebate of any part of this fee is permitted. Further, if liquidated damages are received by the employer from the Alien Worker upon the nonimmigrant’s ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer, such liquidated damages shall not include any part of the corporate user fee. If the filing fee is paid by a third party and the Alien Worker reimburses all or part of the fee to such third party, the employer shall be considered to be in violation of this prohibition since the employer would in such circumstances have been spared the expense of the fee which the Alien Worker paid.
f. Any unauthorized deduction taken from wages is considered by the Department to be non-payment of that amount of wages, and in the event of an investigation, will result in back wage assessment (plus civil money penalties and/or disqualification from H-1B and other immigration programs, if willful).
g. Where the employer depresses the employee’s wages below the required wage by imposing on the employee any of the employer’s business expenses(s), the Department will consider the amount to be an unauthorized deduction from wages even if the matter is not shown in the employer’s payroll records as a deduction.
h. Where the employer makes deduction(s) for repayment of loan(s) or wage advance(s) made to the employee, the Department, in the event of an investigation, will require the employer to establish the legitimacy and purpose(s) of the loan(s) or wage advance(s), with reference to the standards set out in paragraph Clause 16(c) above.
If you are wondering how to file a H-1B visa petition, call Braverman & Lin at 800-237-8331.