IP is about business Archives · Page 6 of 21

by Enoch Pei

What is H-1B?
H-1B is a nonimmigrantion visa classification that allows a foreign national to enter the United States to work for a period of up to six years. It is available to foreign nationals being offered employment in a specialty occupation (or as a fashion model of distinguished merit and ability).
How Do You Apply?
In seeking H-1B status, the employer must file an I-129 – Petition for a Nonimmigrant Worker – with the U.S. Citizenship and Immigration Services. Complementary instructions to help fill out the I-129 can be found here . But prior to filing the petition with the USCIS, the employer must obtain an ETA 9035 – Labor Condition Application for Nonimmigrant Workers – with the U.S. Department of Labor. Complementary instructions to complete the ETA 9035 can be found here.
(Other additional forms and documents may be necessary, depending on an individual case basis)

Do You Qualify?
In order to qualify for H-1B status, there are several requirements that need to be met.
There must be an employer-employee relationship with the petitioning U.S. employer
 This relationship is generally determined by whether the employer is in control of the H-1B worker’s hire, pay, and overall supervision
 An employer can be a person, firm, corporation, or other association or organization that engages with its employees’ work as mentioned above
The job of the H-1B worker must qualify as a specialty occupation
 Typically, a bachelor’s degree is the minimum requirement for the qualification of a specialty occupation
 Occupation of the H-1B worker must be related to the worker’s field of study.
 There are exceptions to those who do not have a bachelor’s degree
 These include specialized training or experience that is considered equivalent to the necessary degree required for occupation
The worker must be paid at least the actual or prevailing wage for the occupation, whichever being higher
 The actual wage is the wage that the employer is paying other individuals who are in the same position offered to the H-1B nonimmigrant
 The prevailing wage is based on a numerous of means that weigh occupation and geographic location of occupation

Other Considerations
Plan well in advance.
There is a 65,000 annual numerical limit of H-1B visas each fiscal year. Those with a master’s degree or higher are exempt from the cap, although there is a 20,000 petition limit for this exemption. If the USCIS receives more than 20,000 petitions requesting exemption, the USCIS will use a lottery process for random selection.
Cap numbers are filled very quickly, so it is in the best interest of applicants to plan in advance. U.S. government’s fiscal year starts on October 1st and H-1B petitions can be filed up to 6 months before the start date, which is generally April 1st for an October 1st start date.

The US Supreme Court will decide when to award attorneys’ fees to a prevailing party under the Copyright Act Law (Kirtsaeng v. John Wiley & Sons, Inc., US No. 15-374).
In 1997, Thailand native, Supap Kirtsaeng, came to the United States to study mathematics at Cornell University. He discovered that textbooks published by John Wiley & Sons, Inc. were considerably more expensive to buy in the United States than in his home country. Kirtsaeng asked his friends and relatives in Thailand to buy these books there and ship them to him, which he then sold in the U.S. on eBay at a profit.
In 2008, John Wiley & Sons, Inc. sued Kirtsaeng for copyright infringement, arguing that textbooks made outside of the United States are only licensed for sale exclusively abroad. Wiley won the case in the lower courts, Kirtsaeng appealed in the Second Circuit Court of Appeals. The Appeals Court upheld the ban on importation of copyrighted works without the permission of the copyright owner.
Kirtsaeng then appealed to the US Supreme Court, arguing that books legally bought by his friends, and the first-sale doctrine should allow him to resell those books in the US. Kirtsaeng argued that the first-sale right of the buyer was more important than the copyright owner’s rights to control importation.
In 2013, The Supreme Court decided that the first-sale doctrine applies to copyrighted goods manufactured outside of the U.S., and the protections and exceptions offered by the Copyright Act to works “lawfully made under this title” is not limited by geography. The Supreme Court reversed the Second Circuit’s decision, held that Kirtsaeng’s sale of lawfully-made and purchased books was protected by the first-sale doctrine, and the case went back to the district court for retrial.
Kirtsaeng then won the case in district court and sought an award of attorneys’ fees
However, the district court decided that it has discretion to award attorney’s fees. Because Wiley’s suit was not “frivolous” or “objectively unreasonable,” the district court held that awarding Kirtsaeng attorney’s fees would “not promote the purposes of the Copyright Act.” The Second Circuit affirmed the decision. The Second Circuit placed “substantial weight” on the whether the losing party’s claim or defense was objectively unreasonable, i.e. whether the losing party’s claim was clearly without merit or devoid of legal or factual basis.
The case went to the Supreme Court again because there is great diversity in awarding attorney fees in the many Appeals Circuits. Those standards range from a presumption in favor of fee awards (Fifth and Seventh Circuits) to a presumption against fee awards when the losing party’s claims or defenses were not objectively unreasonable (Second Circuit).
This case was recently argued before the Supreme Court in April 2016. It remains interesting to see the Court decision

Tag: IP is about business

When the losing party is to pay the winning party’s attorney fee under the copyright law? 在版权法下，什么时候法庭会裁决输方付赢方律师费？