H-1B Visas and Permanent Residency

H-1B Visas and Permanent Residency University of South Carolina International Student Services October 27, 2009 Joy Mandanas McNair Law Firm, P.A. jmandanas@mncair.net

Overview • Immigration Fundamentals: • Status • Who is Authorized to Work in the United States • Nonimmigrant Visas • H-1B Process • Green Card Process

Immigration Status: Who Can Work? • US Citizens • Birth Certificate • US Passport, Passport Card

Immigration Status: Who Can Work? • Permanent Residents (“Green Card”) • Reside and work in US permanently • Permanent Resident card, I-551 stamp in passport • New Green Card summer 2009

Immigration Status: Who Can Work? • Nonimmigrants with Work Authorization • Work Visa: E-2, H-1B, L-1, TN • I-94 Departure Record: type of visa, date and place of entry, expiration of authorized period of stay

Immigration Status: Who Can Work? • Nonimmigrants with other temporary work authorization • OPT EAD

Example: illegal, butauthorized to work • Sanjay enters as F-1 student • Meets and marries Maggie, US citizen • Sanjay graduates, lawful student status expires • Maggie sponsors Sanjay for green card, Sanjay gets EAD • Processing times: 3-6 months, Sanjay authorized to work with EAD • They live happily ever after

Nonimmigrant Work Visas • E-1/E-2: treaty traders & investors • J: professors, medical residents, etc. • L: intra-company transferee • O: outstanding business, arts, sciences • P: performing artists; international renown • R: religious workers • TN: Canadian & Mexican professionals • E-3: Australian professionals

Purpose of H-1B Visa • US employers hire educated foreign professionals on a temporary basis. • Alleviate shortages of US professionals in these positions. • US businesses use unique skills and knowledge in short supply. • Facilitate recruitment of special expertise from overseas markets to let US businesses compete in global markets. • Recruit foreign graduates from US universities. • Professionals in “Specialty Occupations”

H-1B “Specialty Occupation” • Job normally requires a degree in a particular field of education • Degree must be bachelor’s or higher

Qualified Professions Medical doctors Engineers Teachers Fashion Designers Accountants General Managers Journalists Social Workers Pharmacists Financial Analysts Jobs requiring any STEM designated degrees

H-1B Limitations? • Temporary, nonimmigrant • Employer-specific • 6 years (exceptions) • Limited number of visas

H-1B Visa Cap • October 1 – September 30 fiscal year • 65,000 per year • Less 6,800 for Chile & Singapore (58,200) H-1B1 • US Masters cap exemption: additional 20,000 • Other cap exemptions • FMG’s • Nonprofit employers • Increased demands in years past, not reached this year

What do I need to get an H-1B? Before you can apply for H-1B, you must have… • Job offer in a position requiring your degree • Degree (graduation) • License, if applicable

How do I get an H-1B petition? If legally in US or within 60-day grace period, Employer files COS If outside US or out of status: Employer files H-1B petition with CIS. When approved, you get visa abroad. You return to US w/ new visa, new I-94 card.

Who files H-1B petition? Employer • LCA with Department of Labor • No strike, lockout • No adverse affect on wages/working conditions • H-1B petition with CIS • Approved petition before work begins • No self-employment

Employer’s H-1B Obligations • Pay filing fees • Pay higher of “prevailing” wage or “actual” wage” • Offer benefits same as US workers • Post notice (LCA) • Termination by employer: Employer pays return/home transportation

How early can my employer file? No more than 6 months before H-1B employment begins.

How long does H-1B processing take? • As of July 31, 2009, VSC and CSC 2 months • Premium processing: 2 weeks with additional $1,000 DHS filing fee

H-1B Time Limits • Maximum 6 years • No more than 3 years at a time • What if my 3 years is expiring? Before H-1B status expires, file extension and request no more than 3 additional years. • Exception to 6 year max: You have LC pending for more than 1 year • 1-year extension • 3-year extension if I-140 approved

Can I work for any other employers on my H-1B Only for an employer who filed an H-1B petition for you. Concurrent H-1B petitions. Subsequent petition must be filed before work begins.

Can I change employers? • Yes. H-1B is portable. • How? New employer files petition • Before you leave first employer AND • Before you start work for second employer

I got laid off. Does this affect my H-1B status? • If you quit your job or are terminated, you are no longer in lawful immigration status. • If you let your H-1B status lapse before filing an extension, you are also considered unlawfully present.

What about my family? • “H-4” Visa: spouses and children under age 21. • Spouse cannot work. • Spouse and children can go to school.

What is a “green card?” • Permanent residence • Can live and work in the US indefinitely. • Card used to be green.

Can I apply for my green card while I’m in H-1B status? • Yes. Most NIV’s require intent to return home. • H-1B allows “dual Intent.” • Can be in green card process and maintain H-1B visa and status. • Can extend H-1B status while in green card process.

Green card restrictions: immigrant visa backlog • Employment-based IV petition • Preference petitions: EB-1, EB-2, EB-3 • 140,000 immigrant visas, no more than 7% per country

Green card restrictions: immigrant visa backlog • Visa Bulletin (http://travel.state.gov) • Priority Dates • All EB-1 current • China and India EB-2 backlogged • India: January 22, 2005 • China: April 1, 2005 • All backlogged • India: April 22, 2001 • Rest of the world: June 1, 2001

Does IV backlog apply to me? • EB cases have 2 or 3 steps: LC, I-140, I-485 or IV petition • If IV category backlogged, can’t file I-485 or IV petition • No IV = no green card

EB Green Card Categories • EB-1: Outstanding Researchers, Extraordinary Ability Aliens, and Intracompany Transferees • EB-2: Jobs requiring masters degree or higher • Requires Labor Certification • Waiver (of the LC) in the National Interest • EB-3: Jobs requiring bachelors degree or 2 years of experience or training • Requires Labor Certification • EB-5: Investor, “million dollar” green card

“Pre-Certified” Green Cards • Labor Certification not required • Registered Nurses • Physical Therapists • Aliens of “Exceptional Ability” • These are EB-3

Diversity IV Lottery • Low admission regions and countries • Excludes: Brazil, Canada, China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, The Philippines, Peru, Poland, South Korea, UK (except N. Ireland), Vietnam • Includes Hong Kong SAR, Macau SAR, Taiwan

Diversity IV Lottery • Requires high school education or 2 years work experience • List of qualifying occupations • 50,000 visas • Apply October 2 – November 30, 2009 • Online registration only: www.dvlottery.state.gov

Summary • H-1B: professionals in “specialty occupations” • Temporary: 6 year maximum • 65,000 cap, not a factor this year • Employer-specific: (no self-employment) • Can pursue green card while in H-1B • Many green card options, IV backlog

Disclaimer • Immigration law is complex. • This presentation only provides summary information and should not be used for legal analysis. • Please consult an attorney for specific legal advice.

H-1B Visas and Permanent Residency