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1. Overview of U.S. Working Visas
Babson CollegeNovember 2, 2009
John J. Gallini
2. Visas & Admissions The principal sources of apprehension in international travel are:
Take off
Landing
Clearing Custom and Inspections
Hoping your luggage made itThe principal sources of apprehension in international travel are:
Take off
Landing
Clearing Custom and Inspections
Hoping your luggage made it
3. Terminology Nonimmigrant
Temporary visa/visa status
Tourists, Students, Professional Workers, Scholars, Intracompany Transferees, etc.
Most require sponsorship
Immigrant
Green Card or US Permanent Resident
May stay in the US for an indefinite period of time
Obtained through family or employer sponsorship, the lottery or through political asylum
May apply for US citizenship after a waiting period Nonimmigrants
Allowed to come to the US for a specific purpose on temporary basisNonimmigrants
Allowed to come to the US for a specific purpose on temporary basis
4. Visas & Admissions Visa vs. Status
Visa
Allows the foreign national to apply for admission to the US from abroad
Defines the “visa status” that the foreign national is given when she enters the US
Granted by the US State Department located in US Consulates abroad
5. Visas & Admissions Visa vs. Status
Status
Granted upon inspection and admission into the US
Determines what permitted activities and length of stay
Once in the US – and assuming eligibility – a foreign national can apply to extend his visa status and to change his visa status to another visa status
Reflected on a Form I-94, Departure Record
6. Visas & Admissions Presumption of Immigrant Intent –
INA §214(b)
Presumed to be an immigrant until satisfactorily establish qualification as a nonimmigrant.
Visa Application Stage
Port of Entry
Visitors (VWP, B-1/B-2), Students (F, M,) and Exchange Scholars/Trainees (J) must have unabandoned residence abroad
H-1, E-1/E-2, L- 1, O, and P are exempt
7. Visas & Admissions Visa Needed Before Entry
General Rule: Will need a visa
Exceptions:
Canadians
other than E treaty/trader
Landed Immigrants not included
Nationals of Visa Waiver Program Countries
35 countries – 8 CFR §217.2(a)
Must be entering as a visitor
90 day max stay
No extensions or changes of status
Visa Waiver
Andorra, Australia, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Lichtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, U.K.
Visa Waiver
Andorra, Australia, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Lichtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, U.K.
8. Visas & Admissions Obtaining a Visa
Governed by 22 CFR §41.101
Consular office having jurisdiction over place of residence
Discretionary jurisdiction if applicant physically present in consular district
Canada and Mexico
Exception: Where prior nonimmigrant visa voided
Must apply at consular office in country of nationality unless extraordinary circumstances
9. Visas & Admissions Advance Considerations
Passport Validity
Reciprocity Rules
Jurisdictional Rules
Wait times and Processing Times
High-fraud vs. Low-fraud post
Prior Travel
Degree and Prior Employment
10. Visas & Admissions Security Checks
Consular Lookout and Support System (CLASS)
Name check database
18 million records of foreign nationals who have sought entry
Includes:
FBI’s National Crime Information Center (NCIC);
TIPOFF;
Interagency Border Inspection System (IBIS);
Treasury Enforcement Control Systems (TECS);
National Automated Immigration Lookout System (NAILS); and
Nonimmigrant Information System (NIIS)
11. Visas & Admissions Security Advisory Opinions (SAOs)
Visas Donkey – name “hit” based on non-criminal issue
Visas Condor –focused on potential terrorism applicants
Culled from DS-157
Applies “native” standard
Country of birth, citizenship or residence and to persons born in “Terrible 5” or “List of 26 Countries” Terrible 5 – Cuba, Iran, North Korea, Sudan and Syria
Previously included Iraq until it came under “US control”
Also used to include Libya.
Must wait for affirmative response from all participating agencies before visa can be issuedTerrible 5 – Cuba, Iran, North Korea, Sudan and Syria
Previously included Iraq until it came under “US control”
Also used to include Libya.
Must wait for affirmative response from all participating agencies before visa can be issued
12. Visas & Admissions Security Advisory Opinions (SAOs) cont.’d
Visa Mantis
Ensure sensitive, dual-purpose technology not stolen or shared with potential enemies
Based on Technology Alert List (TAL) and Critical Fields List
Special scrutiny for natives of T-5 countries.
Includes Chemical, biotechnology biomedical engineering, biochemistry, immunology, microbiology, pharmacology, genetic engineering, chemical engineering.Includes Chemical, biotechnology biomedical engineering, biochemistry, immunology, microbiology, pharmacology, genetic engineering, chemical engineering.
13. Visas & Admissions NCIC Checks and “Hits”
Pulls up information on terrorists and individuals with outstanding warrants
Also pulls up criminal convictions as minor as simple DUIs and shoplifting.
Hits require full fingerprinting and FBI clearance
14. Visas & Admissions The Interview Process
Varies from Post to Post
Scheduling
Fee Payments
Required Documents
Attorney Representation
Return of Passport
Processing time
15. Visas & Admissions The Adjudication
Is the Applicant Qualified for the Visa
Is the Applicant Otherwise Admissible
Burden rests with Applicant
18. F-1 Students and Practical Training What is Practical Training?
Issued to foreign students in F-1 visa status
Employment authorization to work with any employer in the U.S. within the student’s major area of study
Either Curricular (CPT) or Post-study (OPT)
19. F-1 Practical Training Undergraduates:
Requires prior enrollment for at least a full academic year.
Must be related to course of study
Must be to gain practical training
Not for English language training
Graduates:
Exempted from full academic year rule
Up to 12 months with exception for STEM graduates
If STEM, can apply for additional 17 months
Can be used during the school year and most commonly, after graduation
If OPT, requires filing to USCIS for an Employment Authorization Document (EAD)
20. The OPT Rules Timeline for Obtaining EAD on a Period of OPT
Student first obtains OPT authorization from the school’s DSO on their SEVIS Form I-20
Once OPT has been recommended, an F-1 student must apply for her EAD by filing Form I-765 with USCIS up to 90 days prior to the end of her program and up to 60 days after the end of her program
But remember – you must apply for the EAD within 30 days of the OPT recommendation by the DSO
Employment authorization begins on the date the EAD is issued, or if later, the date that the student completes his course of study
Employment Authorization cannot run longer than 14 months after the end of the student’s program
21. The OPT Rules 17 Month OPT Extension for STEM Students
Provided that the requirements are met, the DSO may extend OPT for 17 months beyond the standard 12 month period for degree holders in the Sciences, Technology, Engineering and Mathematics (STEM)
(http://www.ice.gov/sevis/stemlist.htm)
Once extended OPT is recommended by the DSO, the foreign student must apply for extended EAD from USCIS
Only applies to F-1 students who have graduated with a Bachelor’s, Master’s or PhD from a US college/university in a STEM field
Can be used only once for all degree programs in the US
22. The OPT Rules Requirements for the 17 month extension:
DSO can recommend the 17 month OPT extension after verifying the student’s eligibility and her understanding of her obligations under the program
Student must already be participating in a post-completion period of OPT
Student must be working with/have a job offer from a US employer in a job directly related to her major area of study and that is registered with the USCIS E-Verify system
23. The OPT Rules Student and Employer Obligations Student must report to DSO:
- name/address changes;
- change of employer or employer’s name/address
- loss of employment;
- validation report regarding aboveto the DSO every 6 months until extended OPT ends.
Employer agrees to report to the DSO any termination or departure of the student Student must report to the DSO within 10 days of any change in his name, address, employer’s name or address or a loss of employment
Student must also make a validation report to the DSO every 6 months until extended OPT ends confirming his name, address and employer’s name and address
Employer must agree to report to the DSO any termination or departure of the student
Student must report to the DSO within 10 days of any change in his name, address, employer’s name or address or a loss of employment
Student must also make a validation report to the DSO every 6 months until extended OPT ends confirming his name, address and employer’s name and address
Employer must agree to report to the DSO any termination or departure of the student
24. The OPT Rules During OPT, F-1 status is now tied to continued employment:
12 Month OPT
May not accrue more than 90 days of unemployment
STEM 17 month extension of OPT
may not accrue more than 120 days (aggregate) of unemployment
Applies to entire 29 month period of post-completion OPT
STEM extension available if apply while in initial 12 month period of OPT
STEM allows interim employment authorization extension while application pending
25. Transition from F-1 to H-1B Transition to H-1B Status and the Cap Gap Issue
Post-completion OPT starts sometime in the period from completion of the educational program to 60 days after completion and runs for up to 12 months
Thus OPT (and employment authorization) end in the May-July timeframe every year
New H-1Bs become effective on October 1st of each year
Accordingly, there is a gap from the end of OPT to commencement of H-1B of anywhere from 2 to 4 months
Prior to 2008, during gap period, F-1 student had no valid status and no employment authorization – must leave the US or transfer to other status
26. Transition from F-1 to H-1B The Cap Gap Fix:
If an F-1 student has an H-1B visa petition and change of status filed on his behalf with an effective date of October 1st;
Then his F-1 status and employment authorization are automatically extended until October 1st - no affirmative application is required.
In the event that the H-1B visa petition is rejected, denied or revoked, the automatic status and employment authorization extension end immediately
27. Transition from F-1 to H-1B But, a few traps:
Automatic gap extension is only until October 1st – if your H-1B isn’t effective until November 1st, then you have a gap
Automatic gap extension only applies where your H-1B petition included a change of status application – a petition filed without a change of status would not technically allow eligibility for the automatic extension
28. H-1B Requirements:
Professional-level position - requires a 4 year Bachelor’s degree in a specific field
Alien must possess a 4 year Bachelor’s degree in the appropriate field or its equivalent
3 years experience = 1 year of college
Employer must be financially viable
Salary for the position must meet “prevailing wage”
29. H-1B Specialty Workers The H-1B Cap
58,200 H-1Bs available each Fiscal Year
20,000 additional H-1Bs available each Fiscal Year to foreign nationals with US Master’s degree or higher
6,800 H-1Bs available each Fiscal Year to citizens of Singapore and Chile
Fiscal Year of the USCIS runs from October 1st to September 30th
New H-1Bs for the coming Fiscal Year may be filed starting April 1st – with an October 1st effective date – i.e., 6 months in advance
30. H-1B Specialty Workers The H-1B Cap – Who Is Subject to the Cap?
Foreign nationals who are in the US in another visa status (F-1, B-1) and who, prior to that time, were not in H-1B status
Foreign Nationals who are outside of the US and who were not previously in H-1B status in the US within the past year
31. H-1B Specialty Workers The H-1B Cap – Who is Not Subject to the Cap?
Foreign nationals who are in the US in valid H-1B status with another employer (H-1B Transfers)
Foreign Nationals who are in the US in another visa status (F-1, B-1) and who, prior to that time, were in H-1B status
Foreign Nationals who are outside of the US and who, within the past year, were in H-1B status in the US
32. H-1B Specialty Workers The H-1B Cap – Who is Not Subject to the Cap?
Foreign nationals who are being sponsored for the H-1B by:
An institution of higher education (college or university) or affiliated non-profit organization;
A non-profit research organization; or
A government research organization
33. L-1 Intracompany Transferees Multinational Companies
Requirements:
Temporary transfer from foreign employer to a US parent, affiliate or subsidiary
Affiliate: at least 50% co-ownership by same parent
Transferee employed abroad with foreign employer for one full year out of the immediately preceding 3 year period
Transferee’s employment abroad and position in U.S. must be executive, managerial or requiring specialized knowledge
34. Alternatives to the H-1B The O-1 Extraordinary Ability Alien
Arts, sciences, media or business
the standard is whether the alien is one of a handful of people recognized as expert in their field
Meet “extraordinary ability” criteria
At least three out of nine categories (includes receipt of prizes/awards, scholarly articles published, published material about the alien or his work, participation as a judge of the work of others, etc.)
Requires union or peer organization letter confirming the alien’s “extraordinary ability” and expressing no objection to his working in the US
35. Alternatives to the H-1B The J-1 Business Trainee
To obtain on-the-job training with a US employer
Foreign degree and 1 year of experience outside of the US or 5 years of experience outside of US
Sponsorship through a J-1 sponsor, commonly a non-profit cultural exchange/training organization (www.AIPT.org, www.AILF.org)
Train/work under the auspices of the J-1 sponsor with a US employer that has been approved by the J-1 sponsor
Requires putting together a detailed on-the-job training program – assistance from the J-1 sponsor
Valid for up to 18 months
36. Alternatives to the H-1B The TN Treaty National
Allows a Canadian or Mexican national to work for a US employer in the US for up to 3 years
Specified job categories (approx. 50) – e.g. “engineers”, “systems analysts”, “teachers”
Canadian nationals can obtain TN visa status at a US-Canada border post
Mexican nationals must apply for a TN visa at a US consulate
Up to 3 year increments – no outside cap on number of successive years in TN status
Difficult to transition to US permanent resident (Green Card) status
37. Alternatives to the H-1B E-1/E-2 Treaty Trader/Investor Visa
Available to nationals of certain countries (including most of western Europe) who are establishing an active US business
US business must be majority owned by nationals of the Treaty country
Detailed rules on investment in US business, active business requirement
Visa issued for 3-5 years and extendable in similar increments indefinitely as long as business continues in operation
38. Alternatives to the H-1B The L-1 Intracompany Transferee
Allows an alien to be transferred from a foreign employer to an affiliated US employer
Alien must have been employed with foreign affiliate for 1 full year outside of the US within the past 3 years
Foreign employer and US employer must be affiliated through parent/sub relationship, common ownership
Alien must have worked abroad and be coming to the US to work in a managerial or executive position or a specialized knowledge position
No Cap on number of L-1s that may be issued
Valid for 7 or 5 years
39. The Immigrant Visa Petition Stage 2 – I-140 Filing
Purpose is to establish eligibility of the Alien for an immigrant visa within an employment-based category
Unskilled Workers
Skilled Workers
Professionals
Advanced Degree Holders
National Interest Waiver
Intracompany Executives/Managers
Outstanding Researchers/Professor
Aliens with Extraordinary Ability
40. Adjustment of Status Application Stage 3 – I-485 Filing
The purpose of the Adjustment of Status application is to establish that the Alien does not fall within a number of categories of undesirables:
Polygamists
Communists
Drug traffickers
Persons with communicable diseases (including HIV)
Persons with certain criminal records
Terrorists
Potential public charges
41. Adjustment of Status The I-485 Process
Filed with the CIS Regional Service Center
Fingerprinting and a medical examination
Process times vary wildly
Can be consolidated with the I-140 Immigrant Visa Filing if Visa Available
Can Apply for Employment Card and Travel Document
42. The Prize