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TRANSCRIPT
SHRM San Diego
Law Day
Retain your Foreign National Millennials
January 11, 2017
HOW TO
PLAN FOR HIRING F-1 STUDENTS
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What is the context?
What are the issues?
What are the options?
• ALMOST 70 YEARS AGO…“…the exchange of students…should be
vastly expanded…Information and education are powerful forces in
support of peace” President Dwight D. Eisenhower, in 1958
• JUST OVER ONE YEAR AGO…
“It’s America – our colleges, our graduate schools, our unrivaled
private sector – that attracts so many people to our shores to study
and start businesses…” .President Obama, in October 2014.
WHAT IS THE
CONTEXT?
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• U.S. - destination of choice: Report by Institute of International Education (IIE)
and DOS’ Bureau of Educational and Cultural Affairs, for 2015/16 school year:
U.S. hosted more of world’s 4.1 million globally mobile college/university
students than any other country – more than double number of the U.K. –
second leading host country
• For the first time, in 2016, number of foreign students in U.S. exceeded 1 million
– a 7.1% increase from 2015.
• 36.5% increase in foreign students in U.S. in last five years.
• According to Dept. of Commerce, foreign students contributed more than $35.8-
billion to the economy in 2015. Almost $6-billion more than in previous year.
WHAT IS THE
CONTEXT?
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• India had the highest per country growth of 24.9% to 165,918
students
• China top country of origin with an 8.1% growth to 328,547
students
• India and China together constitute 47% of total number of foreign
students
WHAT IS THE
CONTEXT?
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• 14% of all foreign students enrolled in CA schools
• California had a 10.5% increase in foreign students, with the top
hosting schools USC, UCLA, UCSD, UC Berkeley, and UC Irvine.
WHAT IS THE
CALIFORNIA CONTEXT?
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• Over 1 million foreign students in the U.S. and a total of 85,000 H-1Bs available
annually (65,000 for all graduates and an additional 20,000 for advanced degree
graduates)
• 46.1% of international students are in a STEM field and eligible for 36 month OPT
• The brain gain becomes the brain drain once OPT ends
WHAT ARE THE
ISSUES?
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• STEM OPT – initial 12 months plus 24 months extension
• H-1B – it’s a lottery
• H-1B1 – no lottery needed if you’re hiring people from Chile or Singapore
• O-1 – worth a try for the most accomplished
• E-3 – any Aussies out there?
• TN – for the border crossers, North and South
• Go straight for the Green Card?
WHAT ARE THE
OPTIONS?
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• Work Authorization for STEM F-1s
• Up to 36 months of OPT for F-1s with a qualifying STEM degree
• 12 months of initial OPT after each degree level
• 24 months of STEM OPT, increased from 17 months
permitted under the old rule
• More Compliance Obligations and Increased Enforcement
• Tougher Rules on Permissible Employment
• Training Plan
OPTIONAL PRACTICAL TRAINING
(OPT)
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• Applications must be filed April 1 for start date of October 1.
• 65,000 H-1Bs available (less carve out of 6,800 for nationals of Chile and
Singapore).
• Additional 20,000 for those with Advanced Degrees from U.S. universities.
• Position requires at least Bachelor’s degree in related field.
• Issued for an initial period of 3 years, with one 3 year extension. Time
outside U.S. can be recaptured.
• Prevailing wage required. Employer files Labor Condition Application or
LCA prior to filing
• Institutes of higher education/non-profit research institutes – not subject to
the numerical quota
• Possible to have part-time H-1B position with non-profit and concurrent
position with cap-subject for-profit business even when cap has been
reached. If stop working for non-profit, subject to cap and cannot continue
concurrent employment.
• Refiling H-1B where petition not selected in the lottery
H-1B VISA FOR
SPECIALTY OCCUPATIONS
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• For those of “extraordinary ability” in science, arts, sports, business
• Among those at top of their field nationally or internationally
• Must meet at least 3 of 8 criteria – original contribution to field, won national
or international awards, judge work of others, published in international
journals, been written about, played lead or critical role, commanded a high
salary, member of organization based on accomplishments.
• Adjudicated on preponderance of evidence test – more likely than not
meets criteria.
• May be option where employee has Ph.D. with publications, citations,
accomplishments in field
• Case by case analysis
NONIMMIGRANT VISA STATUS
O-1
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• Those from Canada, Mexico or Australia have additional options to work in
the U.S. if they are not selected in the lottery
• TN for Canadian and Mexican nationals within NAFTA categories – limited.
Canadians do not need visas. apply at Port of Entry. Mexicans apply at
consulate. Visa issued for 1 year, but admission at POE for up to 3 years.
No maximum number of years but must be able to prove nonimmigrant
intent at each entry.
• E-3 for Australians. 10,000 per FY. Never reach limit. Similar to H-1B –
specialty occupation needing related degree or equivalent. LCA required –
employer must pay prevailing wage. LCA and Visa issued for two years.
No time limits.
NONIMMIGRANT VISA STATUS
TN, E-3
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• Major consideration when not selected for lottery: should you sponsor your
employee working on OPT for a green card?
• Possible to consider sponsoring Green Card particularly for those with
Graduate Degrees
• Not possible for those with Bachelor’s – would not be able to meet labor
market test
• Where is student from? Backlogs in immigrant visa availability. If from
India or China – what happens if you start the green card process but not
through the process timely and not lucky in H-1B lottery?
• Case by case analysis
GOING FOR
THE GREEN
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THANK
YOU QUESTIONS?
Contact:
Marlene Z. Stanger
11238 El Camino Real, Suite 100
San Diego, CA 92130
Telephone: (858) 793-1600
Fax: (858) 793-1686
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