This powerpoint presentation outlines the H-1B visa process and what employers and employees need to know about H-1B visa processing, the H-1B cap, the F-1 Cap Gap laws and 221g notices at US consulates abroad.

1. The FY2014 H-1B Cap: What You Need To
Know About H-1B Processing and Trends
February 20, 2013
Murali Bashyam and Ame Coats
Bashyam Spiro & Coats LLP – Immigration Law Group
www.bashyamspiro.com

2. This Internet seminar is intended solely to provide
information to the public. Nothing in this webinar
should be taken as legal advice or legal opinion for
any individual case or situation.
The information is offered for general information
and
educational purposes only.
The participation in this webinar does not create an
attorney-client relationship.

3. TODAY’S OBJECTIVES
Basic Overview of the H-1B Visa
H-1B Cap Numbers
H-1B Cap Exempt Organizations and Strategies
F-1 Cap Gap for Students
NEUFELD MEMO and the “Employer-Employee” Relationship
Are there Alternatives to the End-Client Letter?
Changes in Work Location and H-1B Amendments
Visa Processing and 221G
Questions

4. Basic Overview of the H-1B Visa
Specialty Occupation
Highly Specialized Duties
Attainment of a “Specific” Bach. Degree or
equiv.
Qualified Professional
Temporary (up to 6 years with exceptions)

5. H-1B Cap Numbers
 65,000 Regular Cap (Minus 1400 Chile; 5400 Singapore)
 20,000 US Advanced Degree Cap
 New H-1B: File April 1st for October 1st Start Date
 When Will the H-1B Numbers Run Out? – FY2012
(November); FY2013 (June); FY2014?
 Exempt From The Cap – 1) Transfers, 2) Extensions, 3)
Previously Been Counted Against the Cap

6. H-1B Cap Exempt Organizations and Strategies
Working “at”:
 Institutions of Higher Education or Related or Affiliated
Nonprofit Entities
 Nonprofit Research Organizations
 Government Research Organizations
Ex. Sometimes Private Schools have Formal Affiliations with Universities
and Are Cap Exempt
Ex. Are You a Private Employer and the H1B Worker will be Working ‘at’
an Institution of Higher Education? Cap Exempt.

7. F-1 Cap Gap for Students
 F-1/J-1 (and Dependents) Who Timely File H-1B
C/S Application Can Remain in the US Until the
October 1st H-1B Start Date Even if Status Expires
Before That Date
File C/S During Grace Period – Can Remain in the US But
Cannot Work
File C/S Before OPT Expiration Date – Both Status and
OPT Extended Until October 1st

8. NEUFELD MEMO and the “Employer-Employee”
Relationship
 January 2010: USCIS issued a memo clarifying what constitutes a valid
employer-employee relationship to qualify for the H-1B ‘specialty
occupation’ classification.
 Who Does it Impact?
 H-1B beneficiary/employee working at a third-party (end-client) worksite.
(Ex: IT consulting and other staffing industries)
 Owner-Employees of Companies (Must show ‘independence’ through
Board Resolutions etc.)

9. The End-Client Letter
 USCIS Required from End-Client in Third Party Placement
Cases
 Letter Must Address Project, Term, Duties, Requirements
and Right of Control
 Sometimes End-Clients Do Not Want to Give Letters…
Which Begs the Question….
Are there Alternatives to the End-Client
Letter?

11. KIND OF………

12. Alternatives to the End-Client Letter
 No Perfect Solution or Alternative
 If Already Placed at End-Client – Badges, Emails from Client
Confirming Company Policy, Work, Project Etc.
 Direct Client – Vendor Agreement and PO
 Sometimes Affidavit
 Very USCIS Officer Specific

13. Changes in Work Location and H-1B
Amendments
 Fallacy: A Change in Work Location Requires only a new Labor Condition
Application (LCA)
 If New LCA Is Required for a New Work Location; Must File H-1B Amendment
with USCIS
 USCIS Site Visits – Officer Visits Location on I-129 Petition; Denials After Site
Visits with new LCA but No Amendment
 Blog - http://www.bashyamspiro.com/immigration-meditation/2012/03/08/h-
1b-amendments-the-times-they-are-a-changin’/

14. Visa Processing and 221G
 221G – Consular ‘Requests for Evidence’
 More Frequent in India for IT Professionals
 What Can They Request?
 END-CLIENT LETTER
 Company Financials
 Employee Roster List, With Titles, Duties, Status and Salary
 Everything You Have Already Submitted To Them!
 How Long Does it Take to Receive Decision?
 Pre-Plan Before A Trip

15. QUESTIONS?
Please Type Your Question into
the Chat Box on the Webinar
Panel…

16. THANK YOU!
Murali Bashyam – murali@bashyamspiro.com
Ame Coats – ame@bashyamspiro.com
Call us at: 919-833-0840