H-1 B Visas and Permanent Residency University of

H-1 B Visas and Permanent Residency University of South Carolina International Student Services October 27, 2009 Joy Mandanas Mc. Nair Law Firm, P. A. jmandanas@mncair. net © 2008, Mc. Nair Law Firm, P. A.

Overview Immigration Fundamentals: Status Who is Authorized to Work in the United States Nonimmigrant

Immigration Status: Who Can Work? US Citizens Birth Certificate US Passport, Passport Card 3

Immigration Status: Who Can Work? Permanent Residents (“Green Card”) Reside and work in US permanently Permanent Resident card, I-551 stamp in passport New Green Card summer 2009 4 © 2008, Mc. Nair Law Firm, P. A.

Immigration Status: Who Can Work? Nonimmigrants with Work Authorization Work Visa: E-2, H-1 B, L-1, TN I-94 Departure Record: type of visa, date and place of entry, expiration of authorized period of stay 5 © 2008, Mc. Nair Law Firm, P. A.

Immigration Status: Who Can Work? Nonimmigrants with other temporary work authorization OPT EAD 6

Example: illegal, but authorized to work Sanjay enters as F-1 student Meets and marries Maggie, US citizen Sanjay graduates, lawful student status expires Maggie sponsors Sanjay for green card, Sanjay gets EAD Processing times: 3 -6 months, Sanjay authorized to work with EAD They live happily ever after 7 © 2008, Mc. Nair Law Firm, P. A.

Nonimmigrant Work Visas E-1/E-2: treaty traders & investors J: professors, medical residents, etc. L: intra-company transferee O: outstanding business, arts, sciences P: performing artists; international renown R: religious workers TN: Canadian & Mexican professionals E-3: Australian professionals 8 © 2008, Mc. Nair Law Firm, P. A.

Purpose of H-1 B Visa US employers hire educated foreign professionals on a temporary basis. Alleviate shortages of US professionals in these positions. US businesses use unique skills and knowledge in short supply. Facilitate recruitment of special expertise from overseas markets to let US businesses compete in global markets. Recruit foreign graduates from US universities. Professionals in “Specialty Occupations” 9 © 2008, Mc. Nair Law Firm, P. A.

H-1 B “Specialty Occupation” Job normally requires a degree in a particular field of

Qualified Professions Medical doctors Teachers Accountants Journalists Pharmacists Engineers Fashion Designers General Managers Social Workers Financial Analysts Jobs requiring any STEM designated degrees 11 © 2008, Mc. Nair Law Firm, P. A.

H-1 B Limitations? Temporary, nonimmigrant Employer-specific 6 years (exceptions) Limited number of visas 12

H-1 B Visa Cap October 1 – September 30 fiscal year 65, 000 per year Less 6, 800 for Chile & Singapore (58, 200) H-1 B 1 US Masters cap exemption: additional 20, 000 Other cap exemptions FMG’s Nonprofit employers Increased demands in years past, not reached this year 13 © 2008, Mc. Nair Law Firm, P. A.

What do I need to get an H-1 B? Before you can apply for H-1 B, you must have… Job offer in a position requiring your degree Degree (graduation) License, if applicable 14 © 2008, Mc. Nair Law Firm, P. A.

How do I get an H-1 B petition? If legally in US or within 60 -day grace period, Employer files COS If outside US or out of status: Employer files H-1 B petition with CIS. When approved, you get visa abroad. You return to US w/ new visa, new I-94 card. 15 © 2008, Mc. Nair Law Firm, P. A.

Who files H-1 B petition? Employer LCA with Department of Labor No strike, lockout No adverse affect on wages/working conditions H-1 B petition with CIS Approved petition before work begins No self-employment 16 © 2008, Mc. Nair Law Firm, P. A.

Employer’s H-1 B Obligations Pay filing fees Pay higher of “prevailing” wage or “actual” wage” Offer benefits same as US workers Post notice (LCA) Termination by employer: Employer pays return/home transportation 17 © 2008, Mc. Nair Law Firm, P. A.

How early can my employer file? No more than 6 months before H-1 B

How long does H-1 B processing take? As of July 31, 2009, VSC and

H-1 B Time Limits Maximum 6 years No more than 3 years at a time What if my 3 years is expiring? Before H-1 B status expires, file extension and request no more than 3 additional years. Exception to 6 year max: You have LC pending for more than 1 year 1 -year extension 3 -year extension if I-140 approved 20 © 2008, Mc. Nair Law Firm, P. A.

Can I work for any other employers on my H-1 B Only for an employer who filed an H-1 B petition for you. Concurrent H-1 B petitions. Subsequent petition must be filed before work begins. 21 © 2008, Mc. Nair Law Firm, P. A.

Can I change employers? Yes. H-1 B is portable. How? New employer files petition

I got laid off. Does this affect my H-1 B status? If you quit your job or are terminated, you are no longer in lawful immigration status. If you let your H-1 B status lapse before filing an extension, you are also considered unlawfully present. 23 © 2008, Mc. Nair Law Firm, P. A.

What about my family? “H-4” Visa: spouses and children under age 21. Spouse cannot

What is a “green card? ” Permanent residence Can live and work in the

Can I apply for my green card while I’m in H-1 B status? Yes. Most NIV’s require intent to return home. H-1 B allows “dual Intent. ” Can be in green card process and maintain H 1 B visa and status. Can extend H-1 B status while in green card process. 26 © 2008, Mc. Nair Law Firm, P. A.

Green card restrictions: immigrant visa backlog Employment-based IV petition Preference petitions: EB-1, EB-2, EB-3 140, 000 immigrant visas, no more than 7% per country 27 © 2008, Mc. Nair Law Firm, P. A.

Green card restrictions: immigrant visa backlog Visa Bulletin (http: //travel. state. gov) Priority Dates All EB-1 current China and India EB-2 backlogged India: January 22, 2005 China: April 1, 2005 All backlogged India: April 22, 2001 Rest of the world: June 1, 2001 28 © 2008, Mc. Nair Law Firm, P. A.

Does IV backlog apply to me? EB cases have 2 or 3 steps: LC, I-140, I-485 or IV petition If IV category backlogged, can’t file I-485 or IV petition No IV = no green card 29 © 2008, Mc. Nair Law Firm, P. A.

EB Green Card Categories EB-1: Outstanding Researchers, Extraordinary Ability Aliens, and Intracompany Transferees EB-2: Jobs requiring masters degree or higher Requires Labor Certification Waiver (of the LC) in the National Interest EB-3: Jobs requiring bachelors degree or 2 years of experience or training Requires Labor Certification EB-5: Investor, “million dollar” green card 30 © 2008, Mc. Nair Law Firm, P. A.

“Pre-Certified” Green Cards Labor Certification not required Registered Nurses Physical Therapists Aliens of “Exceptional

Diversity IV Lottery Low admission regions and countries Excludes: Brazil, Canada, China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, The Philippines, Peru, Poland, South Korea, UK (except N. Ireland), Vietnam Includes Hong Kong SAR, Macau SAR, Taiwan 32 © 2008, Mc. Nair Law Firm, P. A.

Diversity IV Lottery Requires high school education or 2 years work experience List of qualifying occupations 50, 000 visas Apply October 2 – November 30, 2009 Online registration only: www. dvlottery. state. gov 33 © 2008, Mc. Nair Law Firm, P. A.

Summary H-1 B: professionals in “specialty occupations” Temporary: 6 year maximum 65, 000 cap, not a factor this year Employer-specific: (no self-employment) Can pursue green card while in H-1 B Many green card options, IV backlog 34 © 2008, Mc. Nair Law Firm, P. A.

Disclaimer Immigration law is complex. This presentation only provides summary information and should not be used for legal analysis. Please consult an attorney for specific legal advice. 35 © 2008, Mc. Nair Law Firm, P. A.