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Practical Steps to Acquiring International Interns & New Hires

A GBC Presentationby: Ryan Lamb

Practical Steps to Acquiring International Interns & New HiresApril 21, 2023

2011, Foster Swift Collins & Smith, PC.

Students – OISS is here to help!

Maintain frequent contact with MSU's Office of International Students & Scholars. OISS is happy to assist and answer questions

that you may have.

105 International CenterE. Lansing, MI 48824Ph: 517.353.1720Fax: 517.355.4657E-mail: [email protected]



Employers – placing a great hire is your primary goal.

Please consider MSU’s talented international students & alumni.

A good long-term hire is a great business asset, regardless of that applicant's visa status or short-term employment eligibility.

Visa options quickly expand upon presentation of your offer of employment.



Practical Options of Mutual Benefit

My goal today is to: Provide you with a brief

introduction to common visa options

Demystify the visa application process

Increase your comfort level in expanding your target market of potential employees.



Work Authorizations for F-1 Students and recent graduates:

Curricular Practical Training (CPT)

Optional Practical Training (OPT)

"Cap Gap" OPT extensions for H-1B Applicants



Curricular Practical Training (CPT)

OISS may authorize CPT for an activity that is "an integral part of an established curriculum," including a work/study program, an internship, cooperative education, or other required internship or practicum offered collaboratively between MSU and an employer.



Curricular Practical Training (CPT) (cont.)

Prerequisite Student must have been enrolled for at least one full

academic year. Job Offer Required No Employment Authorization Document

(“EAD” or work card) Required The student will request an updated Form I-20, with a

CPT endorsement, from OISS – this serves as employment authorization.



Optional Practical Training (OPT)

12 months Students may obtain up to 12 months of OPT

for each higher level of education (i.e. bachelor's, master's, doctoral).

“Post-completion" OPT Available after completion of all degree

requirements (except thesis, dissertation, or equivalent).



Optional Practical Training (OPT) (cont.)

No Job Offer required. Time Limits (Post-Completion):

Start Date must be within first 60 days of completion of student's academic program.

End Date must be within 14 months of completion of the academic program.

Documentation – EAD required File Form I-765 with U.S. Citizenship &

Immigration Service (USCIS)



OPT – STEM Extensions

Degrees in Science, Technology, Engineering, or Mathematics (STEM)

Only 1 STEM extension permitted 17 additional months (up to 29 months

total) Update I-20, with STEM Extension File I-765 with USCIS Employer must be enrolled in E-Verify



“Cap Gap” OPT Extensions for H-1B Applicants

The “Cap” often results in a Gap between the expiration of a student’s OPT, and her ability to start on H-1B. (the Cap is further explained during H-1B discussion)

If your OPT expires between April – Sept., and your H-1B won’t commence until Oct. 1, what to do? Relief arrives in April 2008 with issuance of the “cap

gap rule”



Cap Gap Relief

Automatically extends visa status and employment authorization until Sept. 30 for timely filed H-1B Applicants

Although automatic, obtain updated I-20, with cap gap extension

Travel Restriction – do not travel abroad during cap gap.



H-1B Visa – Employment in a Specialty Occupation A “Specialty Occupation” is one that requires the

theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent.

Licensure – if required by state to practice, the beneficiary must possess the requisite license, or an interim permit, if available.



H-1B – the “Cap”

65,000 Visas available + 20,000 Visas for U.S. master’s degree or higher

(the “Advanced Degree Exemption”)



H-1B – the “Cap” (cont.)

Prior to Recession, Cap Oversubscribed Lottery for Visas

After Recession, Cap reached: FY 2012 – November, 2011 FY 2011 – January, 2011 FY 2010 – December, 2009



Cap Planning – Filing & Commencement Dates

FY 2013 – start date of October 1, 2012 FY 2013 – earliest filing date April 1,

2012 Cap Planning – plan on filing on April 1

Cap Season for preparing filings is Feb – Mar - start now!



H-1B Features

Duration = 3 years + (or Less than 3 years, if Employer requests – e.g. grant

authorizations of limited duration) Extension of 3 years Portability – ability to transfer employment Dual Intent:

You can pursue permanent status without violating your visa

You can adjust to permanent status without leaving the U.S.



H-1B – Where to Begin?

Employers – prepare a Job Description for the position offered.

Students – seek Job Offers Self-Employment – not generally a viable

option (may be possible in minority ownership or controlled employment circumstances)



H-1B – the Labor Condition Application (LCA)

LCA approval is a prerequisite to H-1B

The LCA requirement is the result of congressional compromise As a condition of offering H-1B

visas, domestic labor market protections were mandated



H-1B – the Labor Condition Application (LCA) (cont.)

Employer undertakes 2 Primary Steps: Prevailing Wage Determination (PWD) – obtain

a Prevailing Wage Determination (i.e. government’s opinion of a fair wage) for similar occupations

If Prevailing Wage is greater than the offered wage, Employer can:

• challenge the determination, or • increase the offered wage

File LCA with the U.S. Department of Labor (DOL)



LCA – Employer Attestations / Obligations

Employer attestations (x4): It will pay the greater of (i) actual wages paid to other

similarly situated employees, or (ii) the Prevailing Wage (the “Required Wage”).

No adverse affect on working conditions of workers similarly employed in area.

No current strike or labor dispute at place of employment.

Posted notice (similar to Wage & Hour postings) of the H-1B employment in at least 2 places for a period of 10 business days (if unionized, provide notice to bargaining representative)



LCA – Employer Attestations / Obligations (cont.)

Public Access File – Employer must create and maintain a public access file documenting LCA compliance for each H-1B case.



H-1B Employer - Export Control Attestation In the United States, exporting is a privilege and not a right. 2 primary legal mechanisms for controlling export of

sensitive technology or technical data: The Export Administration Regulations (EAR) under the U.S.

Department of Commerce The International Traffic in Arms Regulations (ITAR) under

the U.S. Department of State Deemed Export – in addition to prohibiting actual export

of sensitive information, permitting an H-1B employee, in the U.S., access to such information is “deemed” to be an export to that person’s home country.



H-1B Employer - Export Control Attestation (cont.)

Employer Certification – Employers are required to certify that: Employer has reviewed EAR and ITAR and

determined that:• No Export License is required; or• An Export License is required and Employer will prevent

access until it has proper license approvals.



H-1B Employer - Export Control Attestation (cont.)

Controlled Technology and Technical Data – while USCIS claims only a small percentage of employers have controlled technology concerns, the controlled list can be surprisingly broad, especially for wider net of “dual-use” items under EAR. Employer and Employer’s Immigration Attorney should

consult with an International Trade Attorney with EAR/ITAR expertise.

Jean G. Schtokal – International Business & Trade Expert



H-1B Timing

Start Early! File I-129 on April 1. Otherwise, race against Cap. Note that these processing times do not include employer and

attorney document preparation time Prevailing Wage Determination ~ 3 – 7 business days LCA Processing ~ 5 – 7 business days I-129 Petition for H-1B Visa ~ 2 months

Premium Processing ~ 15 days Subject to Request for Evidence delays

Visa Application (if out of Country) – varies by Consulate ~ 2 weeks – 2 months

Start on October 1



Who Pays the Fees?

Employer pays the filing fees. Either party may pay the attorney’s fees. Employee may reimburse certain portions

of the filing fees or attorney’s fees. If Employee pays any of the fees, [(Salary –

Fees paid) must remain > Required Wage] Employee can pay the Premium

Processing Fee, without limitation.



H-1B Fees

Typical Fees for Standard Cases: USCIS Filing Fees = $1,575 base

+$750 if > 25 employees +$1,225 for Premium Processing Service

Attorney’s Fees ~ $4,500 – 6,500



Employer Post-Employment Obligations

Maintain Public Access File for at least 1 year.

For dismissals prior to the end of the H-1B term, Employer must provide: Notice to Employee Notice to USCIS Payment for Employee’s transportation home



Primary Alternatives to H-1B:

Family-based Legal Permanent Residence (“Green Card”)

Investors: EB-5 Immigrant Investor E-2 Treaty Investors

Other Temporary Employment Categories: TN Professionals (NAFTA) E-2 Treaty Traders L-1 Intracompany Transferees



EB-5 Immigrant Investor

Three options: Invest $1M and hire 10 U.S. Employees (within 1st two

years) Invest $500K and hire 10 U.S. Employees in a “Targeted

Employment Area” (high unemployment or rural areas) Invest $500K in a Regional Center and create 10 U.S.

jobs (directly or indirectly) Visa = Legal Permanent Residence (Green Card)



E-2 Treaty Investors

Foreign national investor from a listed E-2 treaty country

Investing a substantial amount of capital (typically minimum floor of at least ~ $50K – 100K)

Entering the U.S. solely to develop and direct the operations of the enterprise

Enterprise at least 50% owned by foreign nationals of the treaty country

Visa = 2 – 5 years + possibly indefinite renewals



Thank you for your Interest!

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