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Immigration Visas After Graduation Binghamton University April 8, 2011 Miller Mayer, LLP 202 E. Immigration Visas After Graduation Binghamton University April 8, 2011 Miller Mayer, LLP 202 E. State Street Ithaca, NY 14850 (607) 273 -4200 www. millermayer. com

Overview § Nonimmigrant visas § Immigrant visas Overview § Nonimmigrant visas § Immigrant visas

Nonimmigrant Visa Overview § NIV Categories § H-1 B Fact sheet Nonimmigrant Visa Overview § NIV Categories § H-1 B Fact sheet

Nonimmigrant Visa Categories n n n n A Diplomats B Visitors (business/pleasure) C Transit Nonimmigrant Visa Categories n n n n A Diplomats B Visitors (business/pleasure) C Transit D Crewman E Treaty trader/investors F Academic students G International Organization H Temporary workers I Journalists/Media J Exchange visitors K Fiancés/fiancées of US citizens L Intra-company transferees M Vocational students n n n n n N Parents or children of special immigrants O Persons of extraordinary ability P Athletes or entertainers Q International cultural exchange visitors R Religious workers S Federal witnesses (sneaky snitches) T Trafficking of persons victims TN NAFTA professionals (Mexico and Canada) U Certain crime victims V Certain spouses/children waiting for green cards

H-1 B Nonimmigrant Visas § Employer sponsored for up to 6 years in a H-1 B Nonimmigrant Visas § Employer sponsored for up to 6 years in a “specialty occupation” § 3 Requirements: • Job must require a Bachelor’s degree or higher in specific field • Beneficiary must have at least the relevant Bachelor’s degree or equivalent • Employer must pay the prevailing wage

Procedure § File Labor Condition Application (LCA) -Employer must pay prevailing wage; no adverse Procedure § File Labor Condition Application (LCA) -Employer must pay prevailing wage; no adverse work conditions for US workers § File H-1 B petition (Form I-129) § Overall processing time frame: • 3 -4 months normally • Premium processing possibility: 2 weeks

Advantages of H-1 B: § Duration: § § Time to work toward green card Advantages of H-1 B: § Duration: § § Time to work toward green card No advertising or test of the U. S. labor market – but new large employer restrictions § • 6 year maximum • 1 year stay outside U. S. refreshes 6 yrs • additional H extensions if green card started by end of 5 th year -- and new ITAR attestations H-1 B portability when change employers

Disadvantages of H-1 B: § § § Tied to one employer Not flexible like Disadvantages of H-1 B: § § § Tied to one employer Not flexible like F-1 OPT Paperwork, cost and delay October 1 st start date + cap race Fees: $825 - $3, 550 filing fee $ 2, 500 approx. legal fee

What is the H-1 B “cap”? n n n 65, 000 per fiscal year What is the H-1 B “cap”? n n n 65, 000 per fiscal year Of 65, 000, 6, 800 carved out for Chile and Singapore Separate 20, 000 for graduates with U. S. master’s degree or higher

Race for H cap visas § § § Quota year: October 1 to September Race for H cap visas § § § Quota year: October 1 to September 30 Apply Earliest: April 1 (6 months before) Past years’ H-1 B quota filled: v v v August 10, 2005 (FY 2006) May 26, 2006 (FY 2007) April 3, 2007 (FY 2008) April 7, 2008 (FY 2009) December 21, 2009 (FY 2010) January 26, 2011 (FY 2011) v If needed, USCIS conducts “lottery” to select cases to be considered for H-1 B approval

20, 000 U. S. Master’s Exemption n Defining receipt of degree “complete requirements for 20, 000 U. S. Master’s Exemption n Defining receipt of degree “complete requirements for degree” n n n Accredited U. S. institutions All advanced degrees included Master’s cases considered under both caps

H-1 B Cap Exemptions n n n College/university employees Related or affiliated nonprofit entities H-1 B Cap Exemptions n n n College/university employees Related or affiliated nonprofit entities Nonprofit research organizations Government research organizations Prior cap H-1 B holders J-1 shortage area waivered doctors

Moving from Exempt to Cap Subject Employer n n Makes you subject to the Moving from Exempt to Cap Subject Employer n n Makes you subject to the cap Concurrent employment: consider part-time with each job Pre-October 1 portability Changing jobs between April 1 and October 1

OPT Timeline & Cap Gap Extension Apply 2/27/11 60 -day grace period Program end OPT Timeline & Cap Gap Extension Apply 2/27/11 60 -day grace period Program end date 5/27/11 7/26/11 Apply for H 4/1/2012 EAD expires 7/23/2012 You choose your OPT start date Example: 7/24/11 Apply up to 120 days before your chosen start date -- 90 days before program end date and up to 60 days after. 12 months OPT plus cap gap extension 10/1/2012

P. L. 111 -230 – Large Employers n P. L. 111 -230 certification that P. L. 111 -230 – Large Employers n P. L. 111 -230 certification that large company does not have 50% or more H-1 B employees; if more than 50%, employer pays substantial additional fees

Export Controls Attestation n n Regulations restrict release of certain “technology” and “technical data” Export Controls Attestation n n Regulations restrict release of certain “technology” and “technical data” to certain foreign nationals Employers of covered foreign nationals must get a license to release “technology” or “technical data”

H-1 B Conclusion H-1 B visas are the workhorse of the temporary worker visa H-1 B Conclusion H-1 B visas are the workhorse of the temporary worker visa categories, but are complex and must be done correctly to avoid immigration or Labor Department violations. Limited supply makes careful planning essential.

Fraud Site Visits and LCAs for New Worksites Employer Site visits: n USCIS Office Fraud Site Visits and LCAs for New Worksites Employer Site visits: n USCIS Office of Fraud Investigation n DOL LCA audits Foreign National inspections: n U. S. consulate DS-160 visa processing n CBP airport inspection: where do you work? Carry LCA for additional worksite n Border patrol interior stop compliance important, enforcement occurs

Other NIVs n n n n B/WT: bridging as a visitor E-1/E-2: treaty traders/investors Other NIVs n n n n B/WT: bridging as a visitor E-1/E-2: treaty traders/investors E-3: only for Australians F/J: back to school options J: professional trainees H-3: Up to two years of on-the-job training L-1: move out of U. S. for a year L-2: derivative spouses with work authorization O: Extraordinary ability aliens (researchers and artists)

Other NIVs continued § E-3: only for Australians • • § 2 year renewable, Other NIVs continued § E-3: only for Australians • • § 2 year renewable, indefinitely 10, 500 annual quota LCA only, consular filing Spouse and child work permits L-1: multinational transferee • • 12 months foreign employment Executive, manager, specialized knowledge Lower cost, green card, harsh adjudications Spouse work permits

Other NIVs continued (no quota, no maximum stay) n E-1/E-2: treaty traders/investors • • Other NIVs continued (no quota, no maximum stay) n E-1/E-2: treaty traders/investors • • Start/buy a company 50+% foreign owned Lead, direct, manage No China, India; few Middle Eastern or African countries Os and Ps: extraordinary ability or performer n • Portfolio, c. v. , reviews and publications • 3 of 8 criteria

O-1 Criteria Eight criteria for classification: 1. Receipt of a nationally or internationally recognized O-1 Criteria Eight criteria for classification: 1. Receipt of a nationally or internationally recognized prize for achievement in field 2. Membership in associations in field that require “outstanding achievement” of their members 3. Material published about applicant in major trade publications or other major media 4. Applicant serves as a judge of others in field either individually or on a panel 5. Original, scientific, scholarly, artistic, athletic, or businessrelated contributions of major significance in field 6. Authorship of scholarly articles in field 7. Performing a critical or leading role for organizations that have a distinguished reputation 8. Commanding a high salary in field

TNs n n n Mexican/ Canadian citizens Unlimited extensions Residence outside U. S. Up TNs n n n Mexican/ Canadian citizens Unlimited extensions Residence outside U. S. Up to 3 years in job offer in listed occupation Bachelor’s degree/license in that field See chapter 16 of NAFTA and 8 C. F. R. § 216. 4

Common TN Occupations n n n Accountant Architect College/university professor Computer systems analyst Engineer Common TN Occupations n n n Accountant Architect College/university professor Computer systems analyst Engineer Graphic designer n n n Management consultant Occupational therapist Registered nurse Scientific technician Social worker Urban planner

TN Procedure for Canadians n Bring to U. S. port of entry: • Proof TN Procedure for Canadians n Bring to U. S. port of entry: • Proof of citizenship • Statement from employer stating the qualifications of the position • Evidence of applicant’s qualifications for that position • Filing fee Approved applicants can leave and re-enter the U. S. with their endorsed multiple entry I 94 cards n

How Can I Become a US Permanent Resident? n Family-based n Employment-based n Diversity How Can I Become a US Permanent Resident? n Family-based n Employment-based n Diversity Lottery

Family Relationship Basis n n n Immediate Relatives –children, spouses, or parents of US Family Relationship Basis n n n Immediate Relatives –children, spouses, or parents of US citizens (no limit per year) Unmarried sons & daughters of US citizens (23, 400 visas per year) Spouses/minor children & unmarried sons and daughters of US permanent residents (114, 200 visas per year) Married sons and daughters of US citizens (23, 400 visas per year) Brothers and sisters of US citizens (65, 000 visas per year) US citizen son or daughter sponsor must be age 21 or over

Employment Basis n n n Priority Workers (EB-1) 40, 000 visas per year Extraordinary Employment Basis n n n Priority Workers (EB-1) 40, 000 visas per year Extraordinary ability (self-sponsor) Outstanding professors & researchers (tenure-track position) Business executives & managers (no labor certification required) Advanced degree holders (EB-2) 40, 000 visas per year Professionals with advanced degrees or exceptional ability in sciences, arts & business (labor certification required) National Interest Waiver of labor certification requirement Skilled & unskilled workers (EB-3) 40, 000 visas per year n Skilled workers in short supply n Professionals with bachelor’s degree n Unskilled workers in short supply (all require labor certification) n Special Immigrants (EB-4) 10, 000 visas per year Religious workers; certain US govt. employees; Panama Canal employees; plus certain dependent juveniles n Investors (EB-5) 10, 000 visas per year Must invest between $500, 000 and $1 million Must create at least 10 full-time jobs n

Most Common Way to Get an Employment-Based Green Card (for EB-2, EB-3) PERM (DOL) Most Common Way to Get an Employment-Based Green Card (for EB-2, EB-3) PERM (DOL) I-140 Immigrant Visa Petition (USCIS) Adjustment of Status AOS (USCIS) Consular Processing Overseas (DOS)

PERM Labor Certification § A certification from the Department of Labor that a particular PERM Labor Certification § A certification from the Department of Labor that a particular position at a particular company is “open” because no qualified U. S. workers are available § Employer must complete 5 kinds of recruitment, show ability to pay wage and prepare audit file n Electronic filing with US DOL n Upon certification, must file I-140 within 180 days n Final step: may have to wait for some EB-2, EB-3 s

I-140 Green Card Petitions (without PERM Labor Certification) § Three types of EB-1 priority I-140 Green Card Petitions (without PERM Labor Certification) § Three types of EB-1 priority workers: 1. EB-1 -1 Extraordinary ability aliens 2. EB-1 -2 Outstanding professors and researchers 3. EB-1 -3 Multinational executives and managers § EB-2 (Advanced degrees, Exceptional ability) with “national interest” waiver

Green Card Processing Backlogs n n n “Priority date” is “current” EB-3 category and Green Card Processing Backlogs n n n “Priority date” is “current” EB-3 category and India and China in EB-2 category: It could take five years or longer to get an immigrant visa, even if you start today! See our website for more information Contact Congress about visa delay

Quota Delay: Wait for Priority Date to File Adjustment of Status (March 2011) Employment. Quota Delay: Wait for Priority Date to File Adjustment of Status (March 2011) Employment. Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES 1 st C C C 2 nd C 08 JUL 06 08 MAY 06 C C 3 rd 01 JUL 05 22 JAN 04 15 MAR 02 08 JAN 04 01 JUL 05 Other Workers 15 JUN 03 22 APR 03 15 MAR 02 01 MAY 03 15 JUN 03 4 th C C Certain Religious Workers C C C 5 th C C C Targeted Employment Areas/ Regional Centers C C C 5 th Pilot Programs C C C

EB-5 Immigrant Investors § § § Reserved for immigrants who invest in and manage EB-5 Immigrant Investors § § § Reserved for immigrants who invest in and manage U. S. companies that benefit U. S. economy and create or save at least 10 fulltime jobs $1 million normally required to invest; can be $500, 000 in rural or poor areas Get conditional residence for two years; then must prove investment worked to get condition removed Law allows up to 10, 000 EB-5 green cards per year No quota backlogs

Sources of Information on Immigration Law § Citizenship & Immigration Services – Statutes & Sources of Information on Immigration Law § Citizenship & Immigration Services – Statutes & regulations – Forms – Procedures and instructions – Contact information – Processing times

Sources of Information on Immigration Law n U. S. Department of State – Links Sources of Information on Immigration Law n U. S. Department of State – Links to embassies & consulates worldwide – Application procedures and consulate closings – Wardens messages and travel advisories – Public announcements – Derivative citizenship and renunciation – Visa Bulletin regarding priority dates

Parting Thoughts n n Realistic assessment is important Planning ahead is key Get to Parting Thoughts n n Realistic assessment is important Planning ahead is key Get to know employers soon Think of alternative and creative employment options

Need help with immigration matters? n How to choose an immigration attorney n Interested Need help with immigration matters? n How to choose an immigration attorney n Interested in an immigration consultation? n Sign up for a free monthly immigration newsletter n Contact: Miller Mayer, LLP 202 E. State Street, Suite 700 Ithaca, NY 14850 (607) 273 -4200 [email protected] com

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