Life After F and J Visas May 6

Life After F and J Visas May 6, 2014 David J. Wilks Harter Secrest & Emery LLP Rochester NY 585 -231 -1348

Who goes there? The Four-Walled Room n U. S. citizens n Permanent residents n Nonimmigrants (temporary status) n Unauthorized aliens People in the U. S. A.

Being sponsored under Temporary Visas n Specific time limitations n Specific authorized activities n Options depend upon nationality/activity/availability of visas n Weeks or months to secure n Lesson: Plan ahead Your friends may not be right!

F-1 Students and OPT n OPT - Optional Practical Training n Generally available to those who have completed a U. S. degree n Available for those in graduate programs who have completed coursework n One year period n Available at times during the academic program – Curricular Practical Training – Optional Practical Training

OPT Extension for STEM n OPT may be extended for up to 17 mos. for students not awaiting H-1 B n Requires I-765/EAD n Employer must be E-Verify registrant n Available for those in STEM fields n Classification of Instructional Programs codes published by the National Center for Education Statistics (NCES CIP codes) n http: //www. ice. gov/sevis/stemlist. htm

H-1 B Visas n Specialty Occupations – Professionals n Bachelor’s degree minimum n Right type of degree n Prevailing Wage*** n 6 year limit, but possible to extend beyond if permanent residence process pending

H-1 B numbers n 65, 000 base n H-1 B 1 (Singapore & Chile) have a cut of those numbers n 20, 000 for U. S. Masters degree or higher n Many employers exempt from the numbers – including postsecondary educational institutions and affiliates

Lottery years – H-1 B n Occurs when more petitions are filed than the available quota in the first 5 days of “open season” beginning April of each year n First step - Random lottery of 20, 000 Masters cases n Second step – random lottery of leftovers of above + all others

What happened in April 2014 n Cases filed between April 1 – April 7, 2014 exceeded 172, 000 n In 2013 there were 124, 000 n Results are still coming in n “Cap-gap” - If cases is selected, those with post-completion OPT get an automatic extension of OPT status to bridge them until October 1, 2014

Lottery “losers” – what options? n Review other nonimmigrant visa options n If STEM discipline, F-1 OPT extension for 17 months n Seek another degree and extend F-1 n Review other work-authorized options n Consider change to B-2 visitor to remain in the U. S. for nonwork purposes

E-1/E-2 Treaty Trader/Treaty Investor a) Treaty must exist between U. S. and Country in question (the Treaty Country). b) Majority of ownership or control of the investing or trading company must be held by nationals of the Treaty Country. c) The employee must be a citizen of the Treaty Country. d) If E-1 status, must meet a through c above plus: trade of the company must be “substantial”, principally between the U. S. and the Treaty Country (more than 50%), employee must be a supervisor or have essential skills. e) For E-2 investor, must meet a through c above plus: investment must be active, substantial, create jobs and employee must be a supervisor or have essential skills filling a key role. f) A spouse of an E-1 or E-2 is eligible to receive work authorization.

E-3 n H-1 B- like option for Australians only n No quota limitation

J-1 Visas n Exchange Visitors – several categories – Including students, research scholars, trainees, professors n FMGs who are J-1 are subject to 212(e) – The two year foreign residence requirement

Awareness of the J-1 Trap -The Two Year Residence Requirement n Home government funding n U. S. government funding n Skills List of Home Country n Foreign Medical Graduates seeking post graduate training

L-1 Intracompany Transferees n L-1 A – Managers/Executives n L-1 B – Specialized knowledge n At least one year of work experience abroad with “affiliated” company to U. S. petitioner n L-2 spouses can obtain US work authorization

TN Status n NAFTA n Canadian/Mexican citizens only n Limited numbers of occupations – Including but not limited to: Computer Systems Analysts, Engineers, Graphic Designers, Mathematicians, Statisticians, Research Assistants, numerous Scientific disciplines n 3 year periods n Benefits – speed and expense n Detriment – Temporary Intent

O-1 (Extraordinary Ability) n Demonstrated Extraordinary Ability n 3 years, then annual extensions n Evidenced by objective standards – Scholarly articles – Presentations – Elite memberships – Judge of the work of others – Original contributions to the field – Articles written about the individual

Transition to Permanence n Foregoing nonimmigrant visas are “temporary” n Though many are long term, disadvantages abound: – Lack of stability – Spousal/children work authorization – 21 and out for children

Paths to Permanent Residence n Refugee/Asylum n Diversity Lottery n Family based immigration n Employment based immigration

Refugees/Asylum n Well founded fear of persecution n Political overtones n Strict timelines for filing

Diversity Lottery Program n 55, 000 annual “winners” n Specific countries only n Electronic submission of applications n Digital photo required n www. travel. state. gov

Family Based Immigration n Limited circle of family n Spouses and children of USCs – regardless of age or marital status n Spouses and unmarried children of PRs n Siblings of USCs n Parents of USCs

Employment Based Immigration n Labor Certification Process – Protecting the Labor Market – Non-teaching positions (in universities or elsewhere) • Only person left standing – University or college teachers • Special handling • “Best qualified” standard

P. R. through Labor Certification n 1. Labor Certification n 2. I-140 Employment Based (EB) Petition • EB-2 – Job requires minimum of a Masters or a Bachelor’s + 5 years experience • EB-3 – Job requires less than above n 3. I-485 Application for Permanent Residence n This 3 -step process can take years Your friends may not be right!

P. R. through Labor Certification n Understanding the Visa Bulletin and its impact on the wait for permanent residence n May 2014 visa bulletin: http: //travel. state. gov/content/visas/english/law-andpolicy/bulletin/2014/visa-bulletin-for-may-2014. html

May 2013 Visa Bulletin – Employment Chart Employment. Based All Chargeability Areas Except Those Listed China - mainland INDIA born MEXICO PHILIPPINES 1 st 2 nd 3 rd C C 01 OCT 12 C 15 APR 09 01 OCT 12 C 15 NOV 04 01 OCT 03 C C 01 OCT 12 C C 01 NOV 07 Other Workers 01 OCT 12 01 OCT 03 01 OCT 12 01 NOV 07 4 th C C Certain Religious C Workers C C 5 th Targeted Employment Areas/ C Regional Centers and Pilot Programs C C

Employment Based Immigration n Possible Exemptions from Labor Certification process: – Outstanding researcher/professor (EB-1) – Intracompany Managers (EB-1) (not relevant for all employers) – Extraordinary Ability (EB-1) – National interest Waiver (EB-2)

Exemptions from Labor Certification process n 1. I-140 petition – EB-1 if Outstanding Researcher, Person of Extraordinary Ability or Intracompany Manager – EB-2 if National Interest Waiver n 2. I-485 application for Permanent Residence

Plan the work & work the Plan n Planning is critical n Understanding the time it might take n Reviewing individual options n Deciding what is driving the train – Immigration? – Professional development?

Comprehensive Immigration Reform n Watch this space!

THANK YOU Questions?