Transitioning from Campus to the Workplace Emerging Issues

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International Students • Provide cultural links from between U. S. and other countries. • Help to forge international alliances in science, technology, industry, business and the arts. • Help to create future political relationships. • Returning students act as “ambassadors” for America abroad. • Make significant contributions to the U. S. economy. • Bring talent, innovation and ideas to the U. S. © 2016 Law Office of Matthew I. Hirsch

International Students and the Economy • International students – 974, 926 (4. 8% nationally) • New Jersey has 19, 000, international students (#15) • Penna. has over 45, 704 international students (#6) • International students spend over $26. 8 billion/yr. • Int’l students in PA add $1. 575 billion to economy • Penn State w/ 7, 728, #11 nationally (NYU #1) • University of Penn. w/ 6, 167 international students • Drexel University w/ 4, 026 international students © 2016 Law Office of Matthew I. Hirsch

Top Ten Countries of Origin Rank Country %Int’l Students 1. China 31. 2% 2. India 13. 6% 3. Korea 6. 5% 4. Saudi Arabia 6. 1% 5. Canada 2. 8% 6. Brazil 2. 4% 7. Taiwan 2. 2% 8. Japan 2. 0% 9. Viet Nam 1. 9% 10. Mexico 1. 7% 2016 -15 2000 -02 304, 040 59, 939 132, 888 54, 664 63, 710 45, 685 59, 945 8, 829 27, 240 28, 566 23, 675 (not top 15) 20, 993 19, 064 46, 497 18, 722 (not top 15) 17, 052 10, 670 © 2016 Law Office of Matthew I. Hirsch

International Students on Campus In 2016/15, 974, 926 foreign students enrolled in U. S. universities (+10. 0% increase over 2013/14): • 4. 8% of all U. S. college/university students • 14. 5% of all U. S. graduate/doctoral students According to 2013, NFAP Report, international students: • 42% of grad. students in Physics/Chemistry • 63. 2% of grad. students in Computer Science • 44. 5% of grad. students in Math/Statistics • 51. 9% of grad. students in Chemical/Materials/ Mechanical Engineering • 55. 4% of grad. students in Economics © 2016 Law Office of Matthew I. Hirsch

What is an F-1? • non-immigrant international student • enrolled full-time, in an accredited school • cannot be part-time or take leave-of-absence w/out permission from DSO • must have a residence abroad to which student intends to return • must have financial resources to pay tuition and expenses • may not be employed w/out authorization • cannot transfer w/ out new I-20 © 2016 Law Office of Matthew I. Hirsch

Authorized Employment for International Students Four kinds of authorized employment: • On-campus employment – no CIS application • Curricular practical training – no CIS application • Economic Necessity – requires I-765 and evidence of unanticipated circumstances • Optional practical training – twelve months** © 2016 Law Office of Matthew I. Hirsch

Curricular Practical Training • CPT allows international students to earn credits while working for a U. S. company. • CPT permits students to gain “real-world” and “hands-on” experience in their academic major. • CPT used for practicums, work/study, externships, cooperative learning - part of a student’s curriculum. • CPT can be full- or part-time and students can be paid • if student exceeds one year of CPT then he/she cannot use Optional Practical Training (OPT). • CPT requires I-20 endorsed by DSO. CPT does not require the filing of an Application for Employment Authorization (Form I-765) with the CIS. CPT does not require a filing fee. © 2016 Law Office of Matthew I. Hirsch

OPT = Opportunity • OPT allows international students to work for U. S. employers in a position directly related to field of study. • OPT allows students to work for U. S. organization on a full- or part-time basis for up to twelve months** • additional year of OPT is available for each higher educational year for graduate school, etc. • students may use part of OPT while in school (precompletion ) or after they graduate (post-completion) • Using pre-completion OPT reduces availability of postcompletion OPT • OPT requires Form I-20 from DSO plus filing of Application for Employment Authorization and filing fee

What is an H-1 B? • • • A non-immigrant category i. e. temporary status It is employer-sponsored It is employer-specific Alien must possess U. S. bachelors or equivalent Position must require at least a bachelors degree i. e. qualify as a “specialty occupation” • Status is tied to employment © 2016 Law Office of Matthew I. Hirsch

What are some characteristics of H-1 B? • • Increments of no more than three years Valid for max. six years**, incl. all employers Maximum period of admission may be extended Filed w/ regional processing center of U. S. CIS May be granted as change of status No in-person interview H-1 B does not lead to a green card but Persons in H-1 B status may apply for legal permanent residence © 2016 Law Office of Matthew I. Hirsch

What is a “Specialty Occupation” Requires “theoretical/practical application of specialized knowledge and attainment of bachelors or higher in specific specialty. ” To establish qualifying occupation, must show: • bachelors or higher (or equivalent) is normal minimum requirement; • bachelors is common requirement for parallel positions among similar organizations; • employer normally requires bachelors or equivalent for position; or • duties of position are so specialized/complex as to be associated w/ attainment of a bachelors or higher. © 2016 Law Office of Matthew I. Hirsch

What kind of jobs are H-1 B–eligible? Engineers Accountants Systems Analysts Teachers/Professors Economists Business/Financial Analysts Chemists/Biologists Actuaries/Mathematicians Occupational Therapists Speech Language Pathologists Doctors/Researchers Social Workers/Mental Health © 2016 Law Office of Matthew I. Hirsch

What kind of jobs are not H-1 B–eligible? Entry-level retail Administrative Assistant Technician Insurance/Real Estate Bookkeeper Nurses (w/ exceptions) Entry-level Hospitality Entry-level Food Service Self-employment Actor/Singer/Writer/Poet/Artist/Athlete © 2016 Law Office of Matthew I. Hirsch

What are Beneficiary’s Qualifications? To qualify for H-1 B, foreign worker must: • hold at least U. S. bachelors required for specialty occupation, • hold foreign degree equal to U. S. bachelors degree required for specialty occupation, • (if required) hold unrestricted state license, registration, certification to practice occupation in state of intended employment; or • have education , specialized training, and/or progressively responsible experience equal to at least U. S. bachelors in specialty occupation © 2016 Law Office of Matthew I. Hirsch

What is Equivalent to a Bachelors? Regulations permit equivalency to U. S. bachelors degree • Education-to-education evaluation of foreign degrees by credential evaluation service • Experience-to-education equivalency by professor/ admissions official • College-level entry exams • Experience and/or education-to-education equivalency by professional association • Experience-to-education equivalency by CIS, based on 3 for 1 formula © 2016 Law Office of Matthew I. Hirsch

What’s in a Petition for H-1 B Status? • • • Form I-129, Petition for Non-immigrant Worker H Supplement Form I-129 W - Data Collection/Fee Exemption Form G-28, Entry of Appearance Labor Condition Application Employer Letter in Support of Petition - all signed by Petitioner/Employer • Exhibits • Form I-539 – Application to Change/Extend Status - signed by spouse/dependent • Filing fees © 2016 Law Office of Matthew I. Hirsch

What is a Labor Condition Application? • H-1 B is subject to oversight by Dept. of Labor • Regulations require filing of LCA w/ DOL • LCA is employer’s attestation that actual wage is at least equal to “prevailing wage”, • Prevailing wage determined by DOL’s On-line Wage Library or statistically valid independent source • LCA notice w/ job title and salary posted at worksite • LCA given to H-1 B worker on or before start date • Employer must maintain public inspection file © 2016 Law Office of Matthew I. Hirsch

More on Labor Condition Application • LCA is NOT a labor certification • Employers are NOT required to test labor mkt. for available, qualified, willing workers • Employers are NOT required to advertise, recruit, interview U. S. workers for position • Employers do NOT have to demonstrate special or unique skills • Where all items on LCA are complete, DOL shall certify LCA w/ in 7 days • LCA enforcement/deterrence by post-filing audit © 2016 Law Office of Matthew I. Hirsch

What’s in an Employer Letter? • Introduction of Employer/Employee • Information about Employer i. e. origins, product/services, finances, staffing, customers, • Information about Employee i. e. immigration status, educational credentials, work history • Information about position, including requirements (is it a specialty occupation? ) • Terms of Employment, including worksite, salary, benefits, duration of employment © 2016 Law Office of Matthew I. Hirsch

• • • How much? How long? Filing fees are $2, 325 for over 25 employees Filing fees are $1, 575 for up to 25 employees First extension w/ same employer - $1, 825/$1, 075 Second time extension w/ same employer - $325 Filing fee for I-539 - $290 Attorney’s fees - varies by firm Processing time - 12 -16 weeks “Premium processing” costs $1, 225, takes 15 days Filing fees increasing on 12/23/16 by average 20% © 2016 Law Office of Matthew I. Hirsch

Who’s Exempt from Supplemental Fees? • Primary/secondary educational institutions • Institutions of higher education • Non-profits related to or affiliated w/ institutions of higher education • Non-profits engaged in clinical training • Non-profits/govt. research organizations • Amendment w/out extension, second ext. by same employer or correction © 2016 Law Office of Matthew I. Hirsch

What is the “H-1 B Cap”? • • • Law sets limit/”cap” on new H-1 B’s at 65 K per year, U. S. master’s or higher degree get 20 K set-aside, Allocation renews each fiscal year – October 1, In FY 2009/2010/2011, cap reached in months In FY 2016/2015/2016, cap reach in days In FY 2017, H-1 B cap reached on 04/07/2016 Effective date for FY 2018 – October 1, 2017, Cases may be filed six mos. before effective date, Unless exempt, no further filings until 04/01/17, for effective date of 10/01/2017 © 2016 Law Office of Matthew I. Hirsch

Who’s Exempt from the “Cap”? H-1 B cap does not apply to persons “employed at” • Institutions of higher education, or • Non-profit related to/affiliated w/ such institution, or • Non-profit research organization, or • Government research organization • “Employed at” exempts third parties physically located at university if there is nexus between beneficiary’s work and normal, primary, essential work of qualifying institution. © 2016 Law Office of Matthew I. Hirsch

More on Exemption from H-1 B Cap also does not apply to • Extensions/amendments w/ same employer • Transfer of H-1 B to new employer • Persons counted towards cap w/in past six years • Citizens of Chile/Singapore eligible for H-1 B 1 • Citizens of Australia eligible for E-3 • Citizens of Canada eligible for TN © 2016 Law Office of Matthew I. Hirsch

What is the “Cap-Gap”? • Affects H-1 B-eligible students on OPT • Many students graduate in May • OPT expires one year from graduation (May/June? ) • Once cap is reached, no H-1 B’s until October 1 • Gap between end of OPT and start of H-1 B is “capgap” © 2016 Law Office of Matthew I. Hirsch

How to deal with the “Cap-Gap”? • Apply for H-1 B early – before cap is reached • Graduate in December - OPT extends beyond/overlaps effective date of H-1 B • Use “cap-gap” extension of OPT – covers period from expiration of OPT until 10/1 • Use STEM extension of OPT – adds 24 months of OPT for eligible students © 2012 Law Office of Matthew I. Hirsch

Cap-Gap Extension of OPT • “cap-gap” extension allows F-1’s w/ pending or approved H -1 B petitions to remain employment authorized during the “gap” between end of OPT and effective date of H-1 B • to be eligible, the student must be on OPT and be the beneficiary of cap-subject Petition • if Petition is accepted under the “cap”, then student’s OPT is automatically extended to September 30 • students w/ “cap-gap” extension do not receive new EAD; rather, extension is noted on the student’s SEVIS record • students w/ “cap-gap” extension cannot freely travel and return to U. S. after expiration of EAD

STEM Extension of OPT • “STEM” extension allows F-1’s on OPT to extend employment authorization beyond 12 -month limit • F-1’s eligible for STEM extension may get an additional 24 months of OPT, for a total of 36 months • permits students affected by H-1 B cap to have second chance to apply for H-1 B in a subsequent fiscal year. • STEM extension aimed at F-1’s w/ STEM majors i. e. Science, Technology, Engineering, and Mathematics. • if eligible, student may apply for STEM extension on the Form I-765, w/ Form I-20, endorsed by DSO, two photos and filing fee of $380. • Employer must be registered w/ E-Verify • Employer must submit Training Plan, Form I-983

What about Travel and Visas? • No travel abroad while Petition for change of status is pending • If Petition approved, CIS will issue Notice of Approval on Form I-797, • Notice of approval confirms the change/extension of status or notice to consulate abroad • Notice of approval includes a new Form I-94 • Notice of approval is not a visa • No obligation to depart U. S. BUT if H-1 B worker departs U. S. , new visa required to reenter © 2012 Law Office of Matthew I. Hirsch

Do’s and Don’t for International Students • Do – visit International Student Office often for questions and answers on OPT and F-1 status • Do – take steps to avoid gaps or lapses in status • Do – seek advice from a member of AILA • Don’t – use the internet, message boards for advice on immigration law • Don’t – rely on friends, family members, fellow students for information on immigration law • Do – use your time as an international student to experience America © 2012 Law Office of Matthew I. Hirsch

Political Prospects for CIR “I support comprehensive immigration reform that includes improvement in our visa programs, including our legal permanent resident visa programs and temporary programs including the H-1 B program, to attract some of the world’s most talented people to America. We should allow immigrants who earn their degrees in the U. S. to stay, work, and become Americans over time. Barack Obama, November 26, 2007 © 2012 Law Office of Matthew I. Hirsch

“And we still need to pass comprehensive immigration reform that addresses our 21 stcentury economic and security needs; . . reform that gives our science and technology sectors certainty that the young people who come here to earn their Ph. D’s won’t be forced to leave and start new businesses in other countries; reform that continues to improve our border security and lives up to our heritage as a nation of laws and a nation of immigrants. ” President Barack Obama, June 15, 2012 © 2012 Law Office of Matthew I. Hirsch

“Everybody knows that our current immigration system is broken. It's not smart to invite some of the brightest minds from around the world to study here and then not let them start businesses here. . . Securing our borders, modernizing our legal immigration system, providing a pathway to earned legalized citizenship, growing our economy, strengthening our middle class, reducing our deficits -- that's what commonsense immigration reform will do. ” President Barack Obama, October 24, 2013 © 2012 Law Office of Matthew I. Hirsch

"Independent economists say immigration reform will grow our economy and shrink our deficits by almost $1 trillion in the next two decades. And for good reason: when people come here to fulfill their dreams -- to study, invent, and contribute to our culture -- they make our country a more attractive place for businesses to locate and create jobs for everyone. So let’s get immigration reform done this year. “ President Barack Obama, January 2014

We educate some of the best students in the world - especially in fields like science, technology, engineering, and math. And then we send them home. We should find ways for them to stay. . . We need to let employers hire foreign graduates of U. S. universities. That way, they will use their American education to benefit the U. S. - not our foreign competitors.

What Can You Do? • Be careful consumers of advice on immigration law and policy; • Be wary of message boards/blogs from questionable sources; • Follow the debate/discussion on immigration reform; • Communicate w/ elected officials; tell your story • Ask citizen friends to advocate for reform © 2012 Law Office of Matthew I. Hirsch

Who Immigrates to the U. S. ? • Family-sponsored immigrants – aliens sponsored by U. S. citizen or legal resident family members – about 600, 000 per year • Employment-sponsored immigrants – aliens sponsored by U. S. companies – 140, 000 authorized, less actually used. • Diversity Immigrants – “green card lottery”; 55, 000 aliens from less represented countries • Asylees – aliens classified as asylees or refugees who qualify for legal residence, 100, 000 + © 2012 Law Office of Matthew I. Hirsch

Family-Based Categories • Immediate Relatives – spouse, parents of adult USC, minor child of USC Preference Categories • FB-1 – unmarried sons/daughters of USC’s • FB-2 A – spouses/minor children of LPR’s – • FB-2 B – unmarried children of LPR’s • FB-3 – married sons/daughters of USC’s • FB-4 – brothers/sisters of USC’s – 65, 000/yr. © 2012 Law Office of Matthew I. Hirsch

Visa Bulletin – November 2016 Employment-based All Preferences Chargeability Areas Except Those Listed First Employmentbased Preference: EB-1 Second Employment-based Preference: EB-1 Third Employmentbased Preference: EB-3 Third Employmentbased Preference: Other Worker C C China India C Mexico C Philippines C C 15 JUL 12 01 NOV 07 01 JUL 16 15 APR 13 08 MAR 05 01 JUL 16 01 APR 11 15 AUG 15 01 APR 06 01 APR 04 15 AUG 15 15 JUN 07 © 2012 Law Office of Matthew I. Hirsch

Employment-based Categories • EB-1 – Priority Workers – aliens of extraordinary ability – outstanding professors and researchers – Multinational executive/manager • EB-2 – Aliens of Exceptional Ability/ Professionals with Advanced Degrees (national interest waivers) • EB-3 – Professionals with Bachelors Degrees/ Skilled Workers/”Other Workers” • EB-4: Special immigrants • EB-5: Employment creation / investors © 2012 Law Office of Matthew I. Hirsch

Quotas & EB Preference Categories 140, 000 EB visa numbers per fiscal year: • 40 K to EB-1 - Extraordinary Ability, Outstanding Researcher, Multinat’l Exec. /Mgr. • 40 K to EB-2 -Advanced degree Professionals/ Exceptional ability/NIW • 40 K to EB-3 - Skilled Workers, Professionals, Other Workers (subject to 10 K limit) • 10 K to EB-4 - “Special Immigrants” • 10 K to EB-5 - “Employment Creation”/Investors © 2012 Law Office of Matthew I. Hirsch

First Preference – Priority Workers • • EB-1(1) - Extraordinary Ability EB-1(2) - Outstanding Professors/Researchers EB-1(3) - Multinational Executives and Managers For all priority workers - - EB-1(1) may self-petition - no Labor Certification required - I-485 can be filed concurrently w/ Petition © 2012 Law Office of Matthew I. Hirsch

EB-1(1) -Aliens of Extraordinary Ability • Eligible aliens may self-petition • No offer of employment required • Refers to an individual is “one of that small percentage who have risen to the very top of the field of endeavor” • Fields: sciences, arts, education, business, athletics • Must be coming to U. S. to work in area of expertise © 2012 Law Office of Matthew I. Hirsch

Evidence of Extraordinary Ability • Evidence of a one-time achievement i. e. major internationally-recognized award – Nobel Prize – Pulitzer Prize – Academy Award/Grammy • OR… alternative evidence of sustained national/international acclaim including at least three of ten criteria set forth in regulations © 2012 Law Office of Matthew I. Hirsch

Evidence of Extraordinary Ability - Lesser prizes or awards Membership in assocs. requiring outstanding achievements Published material about alien in publications/media Acting as judge of the work of others Original contributions of major significance in the field Published material by alien in major publications/media Display of creative work in artistic exhibitions or showcases Playing leading role for orgs with distinguished reputations High salary or other remuneration in comparison to others Commercial success in the performing arts Or “other comparable evidence” © 2012 Law Office of Matthew I. Hirsch

EB-1(2) “Outstanding Professors/ Researchers” - Requires job offer from academic institution or private organization engaged in research - Labor Certification not required - Position must be “permanent” or “tenure track” - Alien must have at least three years‘experience in teaching/research - Professor or researcher must be internationally recognized as “outstanding” in academic field © 2012 Law Office of Matthew I. Hirsch

Requirements for EB-1(2) • “Permanent” means – Tenured or tenure-track – Term of indefinite or unlimited duration – Expectation of continued employment • Experience while working on degree counts if: – If alien completed degree sought – Had full responsibility courses taught – Research recognized as outstanding • At least two of six regulatory criteria © 2012 Law Office of Matthew I. Hirsch

Evidence of “Outstanding” Research/Teaching - - Receipt of major prizes or awards for outstanding achievement Membership in assocs. requiring outstanding achievements of their members Published material about alien in professional publications Participation as judge of the work of others Original scientific or scholarly contributions Authorship of scholarly books or articles Letters from senior colleagues confirming achievements, stature and potential © 2012 Law Office of Matthew I. Hirsch

“Outstanding Researcher” Cases • Ph. D. in Physics researching commercial scale production of ultra-thin films and solutions used to produce electroluminescent devices. • Ph. D. in Chemical Engineering working on hydrogen fuel cell technology and the development of computer-based models for predicting longevity of fuel cell stacks. • Ph. D. in Microbiology engaged in research on multi-drug resistance to the pathogenic yeast, Candida albicans, a commonly-occurring infection in patients with HIV/AID and other immuno-compromised conditions. • Ph. D. in Pathobiology studying how human antibodies can be modified to prevent and treat infectious epidemics associated with bio-terror attacks. © 2012 Law Office of Matthew I. Hirsch

“Outstanding Researcher” Cases • Ph. D. in French Literature engaged in scholarly research on post-colonial literature and culture in France and Francophone Africa. • Ph. D. in Biochemistry researching toxicity of dioxin with particular attention to carcinogenicity, tertogenicity, reproductive and developmental toxicity. • Ph. D. in Materials Science and Engineering engaged in the development of biocompatible materials for use in new generation synthetic spinal implants. • Ph. D. in Bioengineering engaged in research in the area of vascular biology and the synthesis of new biomaterials to be used as arterial grafts in cardiac bypass surgery. © 2012 Law Office of Matthew I. Hirsch

“Outstanding Researcher” Cases • Ph. D. in Earth and Environmental Science engaged in scientific research relating to the physiology of damaged and recovering corals. • Ph. D. in Pathobiology researching the virulence mechanisms of disease-causing pathogens in production animals and the prevention of food-borne diseases. • Ph. D. in Biotechnology studying the degradation of enzymes related to the onset and spread of pulmonary fibrosis. • Ph. D. in Archaeology engaged in field work and research on Bronze Age settlements in the Arabian Peninsula. © 2012 Law Office of Matthew I. Hirsch

EB-1(3) Multinational Executives/Managers • No Labor Certification required • For Aliens who: – worked abroad for 1 yr. w/in 3 yrs. prior to transfer to U. S. – in an “executive” or “managerial” capacity – coming to the U. S. to work in a an “executive” or “managerial” capacity – for the same employer or a subsidiary or affiliate of the company which employed the alien overseas; – U. S. employer must be in business for +one yr. © 2012 Law Office of Matthew I. Hirsch

Second Employment-based Preference • EB-2(1) Alien members of the professions holding advanced degrees (Masters, Ph. D. , J. D. ) • EB-2 (2) Exceptional Ability (sciences, arts, business only) • Labor Certification required (except Nat’l Interest Waiver/Schedule A) • Job Offered Required (except Nat’l Interest Waiver) © 2012 Law Office of Matthew I. Hirsch

EB-2 Advanced Degree Professionals • Position must require Master’s degree or higher, or foreign equivalent degree – Master’s equivalence = Bachelor’s degree + 5 years progressive post-baccalaureate experience – Foreign national can satisfy educational requirement with combination of education + experience © 2012 Law Office of Matthew I. Hirsch

National Interest Waiver • • Waiver of job offer/labor certification No job offer required Must continue to engage in nat’l interest activity Alien must demonstrate that activity - possesses substantial intrinsic merit - is national in scope or effect - adverse effect if labor certification required - Matter of NYSDOT – (Int. Dec. 3363) resulted in restrictive interpretation of nat’l interest filings © 2012 Law Office of Matthew I. Hirsch

Schedule “A” • predetermination by DOL of labor shortage • and that wages/working conditions of U. S. workers will not be adversely affected by Schedule A aliens • Employer of Schedule A alien need not test labor market • Direct filing w/ CIS; no PERM filing required - Group I – Nurses and Physical Therapists - Group II – Aliens of Exceptional Ability © 2012 Law Office of Matthew I. Hirsch

Third Preference – EB-3, Professional, Skilled, Other Workers • Alien professionals holding U. S. Bachelor’s or foreign equivalent degree • Skilled workers – job must require two years training/experience • “Other workers” – job requires less than 2 years of training or experience (10, 000/year) • Labor certification always required © 2012 Law Office of Matthew I. Hirsch

Labor Certification • Required for most EB-2/all EB-3 filings • Since March 2005, all Applications use PERM – web -based, automated, attestation model • Requires proof of efforts to recruit qualified, willing and available U. S. workers • Requires newspaper ads, posting w/ state job service, supplemental recruitment • Employers must engage in good faith recruitment © 2012 Law Office of Matthew I. Hirsch

Fifth Preference, EB-5, Employment Creation Visas • Invest $1, 000, place capital “at risk” ($500 K in targeted economic area) • Creation/purchase/expansion of U. S. business enterprise • Create ten full time jobs for U. S. workers • Conditional status must be removed after two years © 2012 Law Office of Matthew I. Hirsch