Hot Topics in Immigration Law: H-1B Visas and Alternatives

1. Post Student Years: Immigration OptionsNovember 2009 Klasko, Rulon, Stock & Seltzer, LLP Kate Kalmykov, Esq. Philadelphia - New York

2. Kate Kalmykov, Esq. • Kate Kalmykov, an Associate in the Firm's New York City office, focuses her practice on business immigration.  • Kate regularly works with corporate clients, hospitals and universities on providing creative immigration solutions to visa and work authorization needs of foreign nationals including skilled workers, persons of extraordinary ability, managers and executives, professionals, treaty investors and traders, as well as corporate trainees. • Kate received her J.D. from the American University and is admitted to practice in New York and New Jersey.  • A member of the American Immigration Lawyers Association, Kate chairs the New York CLE Committee and serves as Secretary of New York District Office Liaison Committee.

3. Hot Topics in Immigration Law Agenda • H-1B Visas • H-1B Alternatives • Extending Your OPT • Permanent Residence Status • Travel Issues • Q&As

4. H-1B Visas • Basic requirements • Job Offer • Prevailing Wage • Bachelors or higher degree • Specialty occupation • Procedure and processing times • Specialty occupation issues • Part-time or full-time • Length of approval • Extensions • Portability • Spouses and Employment Authorization • Travel

5. H-1B Quota What is it and what does it mean? • 65,000 H-1Bs • FY 2010 still going! • FY2009 gone by April 2008 • FY2008 gone by April 2007 • FY2007 gone by May 2006 • FY2006 gone by August 2005 • FY2005 gone by October 2004 • 20,000 for US awarded advanced degrees • FY 2010 gone by April 2009 • FY2009 gone by April 2008 • FY2008 gone by April 2007 • FY2007 gone by August 2006 • FY2006 gone by January 2006

6. Avoiding H-1B Quota • Exemption based on employer • Universities • Non-profits affiliated with universities • Non-profits or gov’t research organizations • or place of employment, law says “at” • Exemption based on employee • Previously counted • Singapore/Chile • Concurrent employment

7. Can’t avoid the quota, planning strategies? • Filing April 1 for Oct 1 start date • CAP GAP Relief • Going from quota exempt to quota subject • Portability? • Concurrent employment? • Working “at” University or non-profit

8. 2009-2010 Issues • Fewer job offers • Uncertainty- quickly reaching the cap in past years vs. FY 2010 • Effect of TARP requirements • Impact of layoffs • Increased opportunities for investors and entrepreneurs

9. H-1B and TARP Recipients • American Recovery and Reinvestment Act of 2009 requires certain H-1B to attest to: • good faith efforts steps to recruit U.S. workers; • no U.S. worker was displaced by the employment of an H-1B worker either • at the employer's own worksite, or • at any outside worksite where the employer has placed an H-1B worker.

10. H-1B and TARP Recipients • Which Employers Are Required to Make the Additional Attestations: • Recipients of TARP funds http://www.financialstability.gov/latest/index.html • Recipients of FRA Section 13 funds • Recipient determination depends upon the type of borrowing arrangement between the entity and the Federal Reserve • Term Asset-Backed Securities Loan Facility (TALF) (received discounted gov’t loans) • What is TARP funds are repaid? It’s unclear.

11. Alternatives to H-1B • O-1 (extraordinary ability) • E-3 (Australians) • TN (Canadian/Mexicans) • J-1 (new rules limiting applicability) • E visas (treaty between home & U.S.) • L visas (intra-company transfer to U.S.) • I visa(journalists – disseminate news abroad) • OPT Extension- STEM

12. Alternative Visa Options (cont’d) • EAD through spouse’s status • J-2 • E • L-2 • I-485

13. Permanent Resident Status • Family • Investment • Asylum • Employment • Diversity Visa Lottery

14. Permanent Resident StatusEmployment • Employer-sponsored or self-sponsored • Labor certification or extraordinary/national interest/exceptional • Multiple petitions

15. Permanent Resident StatusEmployment (Cont.) Extraordinary Ability or Outstanding Researcher/ Professor • EB-1 • Standards • Documentation • Reference letters National Interest Waiver • EB-2 • Standards

16. Permanent Resident StatusEmployment (Cont.) • Labor Certification Application (PERM) • Employer Sponsored • Recruitment • Prevailing wage • Legal issues • Timing • First of 3 steps • EB-2 or EB-3

17. Permanent Resident StatusAdjustment of Status (I-485) • Timing • Preference categories/quotas • Priority dates • Processing times • Concurrent filing (I-140/I-485) • Employment Authorization • Advance Parole

18. Permanent Resident StatusAdjustment of Status (I-485) • Adjustment Portability • H-1B Extensions • One Year • Three years • Spouses

19. Travel Issues • Potential Problems • Intent to return – F & J vs. H & O • Visa interview delays • Security clearances • Technology Alert List • 222(g) • Possible solutions • Don’t travel • Canada/Mexico • Advance Parole

20. Contact Information Kate Kalmykov, Esq. • Telephone: 212-796-8856 • Fax: 212-297-1799 • Email: kkalmykov@klaskolaw.com