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Immigration

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

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Immigration

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  1. 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

  2. Overview • Nonimmigrant visas • Immigrant visas

  3. Nonimmigrant Visa Overview • NIV Categories • H-1B Fact sheet

  4. 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 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 Nonimmigrant Visa Categories

  5. H-1B 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

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

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

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

  9. What is the H-1B “cap”? • 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

  10. Race for H cap visas • Quota year: October 1 to September 30 • Apply Earliest: April 1 (6 months before) • Past years’ H-1B quota filled: • 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) • If needed, USCIS conducts “lottery” to select cases to be considered for H-1B approval

  11. 20,000 U.S. Master’s Exemption • Defining receipt of degree “complete requirements for degree” • Accredited U.S. institutions • All advanced degrees included • Master’s cases considered under both caps

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

  13. Moving from Exempt to Cap Subject Employer • 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

  14. OPT Timeline & Cap Gap Extension 60-day grace period Apply 2/27/11 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 10/1/2012 12 months OPT plus cap gap extension Apply up to 120 days before your chosen start date -- 90 days before program end date and up to 60 days after.

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

  16. Export Controls Attestation • 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”

  17. H-1B Conclusion H-1B 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.

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

  19. Other NIVs • 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)

  20. 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

  21. Other NIVs continued (no quota, no maximum stay) • E-1/E-2: treatytraders/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 • Portfolio, c.v., reviews and publications • 3 of 8 criteria

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

  23. TNs • 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

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

  25. TN Procedure for Canadians • 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

  26. How Can I Become a US Permanent Resident? • Family-based • Employment-based • Diversity Lottery

  27. Family Relationship Basis • 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

  28. Employment Basis 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 Skilled workers in short supply Professionals with bachelor’s degree Unskilled workers in short supply (all require labor certification) Special Immigrants (EB-4) 10,000 visas per year Religious workers; certain US govt. employees; Panama Canal employees; plus certain dependent juveniles Investors (EB-5) 10,000 visas per year Must invest between $500,000 and $1 million Must create at least 10 full-time jobs

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

  30. 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 • Electronic filing with US DOL • Upon certification, must file I-140 within 180 days • Final step: may have to wait for some EB-2, EB-3s

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

  32. Green Card Processing Backlogs • “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

  33. Quota Delay: Wait for Priority Date to File Adjustment of Status (March 2011)

  34. 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

  35. Sources of Information on Immigration Law • Citizenship & Immigration Services • Statutes & regulations • Forms • Procedures and instructions • Contact information • Processing times

  36. Sources of Information on Immigration Law • 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

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

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

  39. Access to this presentation can be found at: https://millermayer.box.net/shared/y6hzhijqk2

  40. Questions?

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