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Immigration Seminar

Immigration Seminar. New York, NY April 15, 2010. Freddi Weintraub, Partner. Fragomen, Del Rey, Bernsen & Loewy, LLP 7 Hanover Square New York, NY 10004-2756 Email: fweintraub@fragomen.com (212) 891-7560 TEL (212) 446-0375 FAX www.fragomen.com. Susanah Wade Client Services Manager.

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Immigration Seminar

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  1. Immigration Seminar New York, NY April 15, 2010 Fragomen, Del Rey, Bernsen & Loewy, LLP

  2. Freddi Weintraub, Partner • Fragomen, Del Rey, Bernsen & Loewy, LLP • 7 Hanover Square • New York, NY 10004-2756 • Email: fweintraub@fragomen.com • (212) 891-7560 TEL • (212) 446-0375 FAX • www.fragomen.com Fragomen, Del Rey, Bernsen & Loewy, LLP

  3. Susanah WadeClient Services Manager • Fragomen, Del Rey, Bernsen & Loewy, LLP • 7 Hanover Square • New York, NY 10004-2756 • Email: swade@fragomen.com • (212) 891-7585 TEL • (212) 446-0377 FAX • www.fragomen.com Fragomen, Del Rey, Bernsen & Loewy, LLP

  4. Nonimmigrant and Immigrant Visas • Nonimmigrant visas - Temporary stay in the US • Immigrant Visas - Permanent Resident Status in US Fragomen, Del Rey, Bernsen & Loewy, LLP

  5. Most Common Business Nonimmigrant Categories • B-1 Visitors for Business • E-1/E-2 Treaty Traders/Investors • E-3 Australian Nationals • F-1 Foreign Students – Practical Training Provisions • H Temporary Worker • J-1 Exchange Visitor • L-1 Intracompany Transferee • O-1 Persons of Extraordinary Ability • TN Trade NAFTA – Canadian and Mexican Professionals Fragomen, Del Rey, Bernsen & Loewy, LLP

  6. PREMIUM PROCESSING • EXPEDITED PROCESSING – 15 CALENDAR DAYS TO ADJUDICATE PETITION • E-1, E-2 • H-1B, H-3 • L-1 • O-1, O-2 • P-1, P-2, P-3 • Q-1 • R-1 • TN Fragomen, Del Rey, Bernsen & Loewy, LLP

  7. B-1 Visitors for Business • B-1 Visitors for Business Foreign national engaging in short-term business on behalf of overseas employer • B-1 in Lieu of H-1B or H-3 Foreign nationals otherwise qualifying for H-1B or H-3 nonimmigrant status coming to perform H-1B services or participate in an H-3 training program, and who will receive no salary in the US Fragomen, Del Rey, Bernsen & Loewy, LLP

  8. E-1/E-2 Treaty Traders and Investors • Transfer of managerial or essentially skilled employees to the US • Crucial mechanism is existence of treaty or commerce and navigation or bilateral investment treaty between the US and country of nationality of transferring employers • Employee must possess same nationality as the company Fragomen, Del Rey, Bernsen & Loewy, LLP

  9. E-1/E-2 Treaty Traders and Investors Cont’d • E-1 appropriate where enterprise in US is engaged in substantial trade with treaty country and the company is majority owned by treaty nationals • E-2 appropriate where the US company is majority owned by treaty nationals and a substantial, active investment has been made • Initiate visa application in US through change of status or at US consulate abroad • Company must be registered at consulate • Spouses eligible for employment authorization Fragomen, Del Rey, Bernsen & Loewy, LLP

  10. E-3 Australian Nationals • Requirements similar to H-1B visa for professional workers • Specialty occupation requiring service of an Australian individual with at least US Bachelor's degree or equivalent in field related to job • Labor Condition Application filing with Department of Labor Fragomen, Del Rey, Bernsen & Loewy, LLP

  11. E-3 Australian Nationals Cont’d • Change of status petition filed at USCIS Service Center • Approval Notice (Form I-797) issued upon approval – present at consulate abroad to obtain visa • Visa application directly at US consulate abroad as long as pre-arranged job offer exists in the US Fragomen, Del Rey, Bernsen & Loewy, LLP

  12. E-3 Australian Nationals Cont’d • Visa valid for 2 years • Renew indefinitely • 10,500 visas available each year • Spouses/children accompanying or joining E-3 applicant not subject to numerical limitation and need not be Australian nationals • Dependent spouses eligible for Employment Authorization Fragomen, Del Rey, Bernsen & Loewy, LLP

  13. F-1 Visa • Full-time matriculated student at approved school • “Optional Practical Training:” pre- or post-graduation • 12 months; no more than 20 hrs/week during school year, full-time during vacations • need employment authorization document (EAD); • not tied to particular employer • 17 Month Stem Extension with a STEM degree. List located at http://www.ice.gov/sevis/stemlist.htm • “Curricular” practical training if part of educational program Fragomen, Del Rey, Bernsen & Loewy, LLP

  14. H-1B VISA - Specialty Occupation • Entry Level Requirement Bachelor’s Degree in a specific related field, or equivalent, at a minimum • 3 for 1 Rule -- 3 years of experience equals one year of university-level studies • Prevailing wage requirement – 100% • Initial approval: 3 years. 6-year max. stay w/extension • Extensions beyond 6 years in limited circumstances • Concurrent H status for more than 1 employer Fragomen, Del Rey, Bernsen & Loewy, LLP

  15. H-1B Visa (Cont’d) • Annual cap ceiling of 65,000 • Carve outs of 1,400 for Chile and 5,400 for Singapore • Additional 20,000 for foreign nationals with US earned advanced degrees (Master’s or higher) • Exemption from cap: • Change of employer H petitions – exception if changing from exempt to non exempt organization • Institution of higher education; • Nonprofit affiliated with institution of higher education; • Nonprofit research organization or governmental research organization; • Previously granted H-1B status within the past 6 years. Fragomen, Del Rey, Bernsen & Loewy, LLP

  16. H-1B Portability • H-1B employees can begin new employment upon filing of a new H-1B by a new employer if: • Foreign national has been lawfully admitted to US • Foreign national has not been employed without authorization subsequent to his/her lawful admission • A non frivolous H-1B is being filed for the new employment before the expiration of foreign national's current status Fragomen, Del Rey, Bernsen & Loewy, LLP

  17. H-1B Terms of Stay • Initial 3 years may be granted with extension of 3 years for maximum of 6 years • Must reside abroad for 1 year before eligible for new H-1B except where: • I-140 Immigrant Petition or Labor Certification pending and 365 days have elapsed since permanent residency process was initiated. Extension in 1 year increments until final decision on permanent residency process • Per country limitation (retrogression) prevents foreign national from applying for immigrant visa. Extensions beyond 6 year limit available in 3 year increments until I-485 is adjudicated. Must have approved I-140 Fragomen, Del Rey, Bernsen & Loewy, LLP

  18. H-1B Terms of Stay Cont’d • Time spent in L-1 status counts against H-1 maximum period of stay • Dependents receive H-4 visas and not permitted to work in US • Time spent in H-4 or L-2 status does not count against H-1 maximum period of stay Fragomen, Del Rey, Bernsen & Loewy, LLP

  19. H-1B Visa - Government Fees • Filing fee - $320 • Training fee - $1,500 (more than 25 full time workers) $750 (less than 25 full time workers) - must be paid by employer, and cannot be charged to foreign national • When seeking initial H-1B • When seeking first extension • When seeking change of employers • Academic institutions are exempt • Anti-fraud fee - $500 • Supplemental “Premium Processing” fee - $1,000 if 15 day processing is desired (otherwise, typical processing time of 12-16 wks.) Fragomen, Del Rey, Bernsen & Loewy, LLP

  20. H-3 Training Visa • Designed for participation in established company training program • Training cannot be conducted or engaged in with the intention of eventual employment in the United States • Foreign national cannot be employed to engage in productive employment that is other than incidental to the training program Fragomen, Del Rey, Bernsen & Loewy, LLP

  21. J-1 Training Visa • Exchange visitor program/maintain nonimmigrant intent • Categories: trainees, interns, research scholars, students • Requires detailed training program submitted to sponsor organization together with application form • Trainee- foreign degree and 1 year of work experience outside the US or 5 years work experience outside the US • Intern - Currently enrolled in academic institution outside the U.S. OR graduated from such institution within 12 months prior to the start date Fragomen, Del Rey, Bernsen & Loewy, LLP

  22. J-1 Training Visa Cont’d • Some J-Visa holders must return to home country for at least 2 years after completion of program • Foreign medical graduates • If program funded in whole or part by US or foreign national’s home government • Foreign nationals who possess skills determined to be in short supply in home country • Waivers available Fragomen, Del Rey, Bernsen & Loewy, LLP

  23. L-1 Intra Company Visa • Render services to a U.S. employer that is the parent, subsidiary, affiliate, or branch of an entity abroad for which the individual worked for at least 1 year (6 months for transfers under a blanket petition) within the preceding 3 years • L-1A – managerial or executive employment • L-1B – specialized knowledge employment • Spouses eligible for employment authorization Fragomen, Del Rey, Bernsen & Loewy, LLP

  24. “TN” Pursuant to North American Free Trade Agreement (NAFTA) • Must have nonimmigrant intent • Applies to Citizens of Canada and Mexico • Specific list of occupations - Appendix 1603.D.1 • Canadians submit application at an entry point to the US – no labor condition application (LCA) requirement • Mexicans apply at a US consulate • Mexicans need visa • 3 year initial admission - 3 year extensions available through USCIS or at port of entry Fragomen, Del Rey, Bernsen & Loewy, LLP

  25. O Visa • Extraordinary ability in science, arts, education, business or athletics • Initial approval for up to 3 years, then 1 yr. extensions, no maximum stay • One of small percentage who have risen to the top of their field • Standard (“distinction”) is relaxed for the arts • Need to document 3 out of 8 • national or international awards • membership in professional organizations that require outstanding accomplishments of their members • authorship of scholarly articles • published material about the individual in professional publications • original contributions of major significance to the field of expertise • judge of the work of others • employment in critical capacity with organizations with distinguished reputations. • high salary compared with others in same field Fragomen, Del Rey, Bernsen & Loewy, LLP

  26. Immigrant Visas • Immigrant Visa = Permanent Residence/Green Card • Available mainly based on employment in US or family based relationship Fragomen, Del Rey, Bernsen & Loewy, LLP

  27. Employment Based Immigrants • Qualify under 1 of 5 employment based preference categories • Steps: • #1: Labor Certification (if necessary) • #2: Petition with USCIS (Form I-140 petition) under appropriate employment based categories • #3: Application for Permanent Residence: (A) Adjustment of Status Application (Form I-485); or (B) Consular Processing Fragomen, Del Rey, Bernsen & Loewy, LLP

  28. Employment Based Petitions • Employment Based First Preference (EB1) • Extraordinary Ability Petition (EB1-1) • Outstanding Researcher/Professor Petition (EB1-2) • Intra-company executives and managers (EB1-3) • Employment Based Second Preference (EB2) • Advanced Degree Professionals; Exceptional Ability Aliens; National Interest • Employment Based Third Preference (EB3) • Skilled Workers, Professionals and Unskilled Workers • Employment Based Fourth Preference (EB4) • Religious workers • Employment Based Fifth Preference (EB5) • Investors of $1 billion or more or of $500,000 in high unemployment area Fragomen, Del Rey, Bernsen & Loewy, LLP

  29. Extraordinary Ability AliensEB1-1 • Extraordinary Ability - criteria virtually identical to O-1 visa category on page 25 except for those in the arts • Extraordinary ability in the sciences, arts, athletics, business and education • No Labor Certification required Fragomen, Del Rey, Bernsen & Loewy, LLP

  30. Outstanding Professors and Researchers • International recognition • 3 years experience • Tenured/tenure-track position or • Comparable research position with research facility • No Labor Certification required Fragomen, Del Rey, Bernsen & Loewy, LLP

  31. Criteria for Outstanding Researcher Classification • Evidence of recognition internationally, as being outstanding in the field (at least two of the following): • Documentation of the receipt of major prizes or awards for outstanding achievement in the academic field; • Documentation of membership in associations in the academic field which require outstanding achievements of their members; • Published material in professional publications written by others about the alien’s work in the academic field; • Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field; • Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or • Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field. Fragomen, Del Rey, Bernsen & Loewy, LLP

  32. Second Preference (EB2) • Advance Degree Professionals - Advanced degrees or equivalent of Bachelor’s degree plus 5 years progressive professional experience/Labor certification required • Exceptional ability in the arts, sciences and business/No labor certification required • National Interest Waiver/Self Petition/No labor certification required Fragomen, Del Rey, Bernsen & Loewy, LLP

  33. Exceptional Ability in Arts, Sciences and Business • Degree of expertise significantly above that ordinarily encountered • Widespread acclaim and international recognition • Exceptional Ability determined by satisfying at least 3 of 6 categories • Degree relating to exceptional ability • Letter from current or former employer showing at least 10 years of experience • License to practice profession, • High salary or remuneration denoting exceptional ability • Membership in professional association • Recognition for achievements and significant contributions to industry by peers, government entities or professional or business associations • Comparable evidence allowed if above criteria not applicable e.g. expert opinion letters • No labor certification required Fragomen, Del Rey, Bernsen & Loewy, LLP

  34. National Interest Waiver • National Interest Waiver • Can be difficult to obtain • Employment in area of substantial intrinsic merit • Proposed benefit is national in scope • Alien presents significant benefit to the field • National interest would be adversely affected if labor certification required. • Past record of alien justifies projections of future benefit to the national interest. • No labor certification required Fragomen, Del Rey, Bernsen & Loewy, LLP

  35. Third Preference (EB3) • Bachelor’s Degree or US equivalent • Skilled workers with 2 years of relevant training or experience, but no Bachelor's degree • Other workers without a Bachelor's degree and less than 2 years of training or experience • Labor certification required Fragomen, Del Rey, Bernsen & Loewy, LLP

  36. Fourth Preference (EB4) • Religious workers • Members of religious occupations • Members of religious vocations evidenced by taking vows • No labor certification required Fragomen, Del Rey, Bernsen & Loewy, LLP

  37. Fifth Preference (EB5) • Investors making investment of $1 million or more ($500,000 in high unemployment area) • New commercial enterprise • Creation of a least 10 positions for US citizens or US permanent residents • No labor certification required Fragomen, Del Rey, Bernsen & Loewy, LLP

  38. Labor Certification (PERM) • PERM – Program Electronic Review Management • Priority Date given upon filing with the Department of Labor • Search for qualified US workers minimally qualified, at appropriate wage • “Special Handling” provisions for college/university professors Fragomen, Del Rey, Bernsen & Loewy, LLP

  39. Labor Certification (Cont’d) “Special Handling” for College/University Professors • File within 18 months of appointment • Can re-test labor market if outside 18 months • Seeks best qualified not minimally qualified • Prevailing wage requirement • Union notification or posting requirement Fragomen, Del Rey, Bernsen & Loewy, LLP

  40. PERM – Application Process • Registration of company with Department of Labor (DOL) - by employer • Obtain prevailing wage - 100% of prevailing wage must be paid • Conduct recruitment of US workers • Place job order with State Workforce Agency for 30 days • Two print ads in Sunday newspaper of general circulation. May use one journal ad in lieu of one Sunday for professional jobs requiring advanced degree & exp. Ads must include employer name & location, and reflect nature of job • 3 other types of recruitment for professional jobs (e.g., ads on employer’s web site; employee referral program, online ads from newspaper, school/job fairs, etc.) Fragomen, Del Rey, Bernsen & Loewy, LLP

  41. PERM – Application Process Cont’d • Recruitment 30 to 180 days prior to filing case • File Form 9089 on-line or by mail – 8 to 12 months turnaround • Recruitment documents are not submitted with application, but must be kept by employer for 5 years • DOL may conduct audit before making decision Fragomen, Del Rey, Bernsen & Loewy, LLP

  42. FILING FOR PERMANENT RESIDENCE • File employment based petition, Form I-140 after Form 9089 certified by DOL If immigrant visa number available: • File Adjustment of status application (Form I-485) at USCIS; or • Visa process at U.S. Consulate abroad Fragomen, Del Rey, Bernsen & Loewy, LLP

  43. Availability of Immigrant Visas • Immigrant visa number must be available to apply for permanent residence (Green Card) • Availability determined by priority date • If demand for visas exceeds availability results in retrogression • Cannot file for permanent residence (I-485 or visa process) until priority date current • US Department of State publishes immigrant visa availability via “Visa Bulletin” – see handout • Visa Bulletin updated monthly • Current backlogs for China and India in second preference categories • Current backlogs for all areas in third preference category Fragomen, Del Rey, Bernsen & Loewy, LLP

  44. ADJUSTMENT OF STATUS • Can be filed concurrently with I-140 • Advance Parole may be required - Form I-131 - dependents and principal applicant may apply • Employment Authorization (EAD card) - Form I-765 - dependents and principal applicant may apply Fragomen, Del Rey, Bernsen & Loewy, LLP

  45. VISA PROCESSING • Filed at U.S. Consulate in home country or country of last residence • Can only be filed once I-140 is approved • Involves interview & travel on short notice • Additional documents required • Medical exam in home country • Police certificates • Military record Fragomen, Del Rey, Bernsen & Loewy, LLP

  46. Family Based Categories • Immediate relatives – visas immediately available • Children (under 21 and unmarried) of US Citizens • Spouses of US Citizens • Parents of US Citizens (US Citizen son or daughter must be at least 21 years old to file for parent) Fragomen, Del Rey, Bernsen & Loewy, LLP

  47. Family Based Preferences • Backlogs - Refer to Visa Bulletin for visa availability • First Preference - Unmarried sons and daughters of US citizens • Second Preference • 2A, Spouses and Children of permanent residents • 2B, Unmarried sons and daughters (21 years or older) of US citizens • Third Preference – married sons and daughters of US citizens • Fourth Preference – brothers and sisters of adult US citizens Fragomen, Del Rey, Bernsen & Loewy, LLP

  48. Considerations: Changing from F-1 (or J-1) to Permanent Residence (Based on Marriage to U.S. Citizen • Travel risks (do not travel until Advance Parole has been issued) • If travel and already married to U.S. Citizen, F-1 visa application (and possibly, entry) likely to be denied • Best to process in the U.S. • Risky to file I-485 Application for Adjustment of Status within 60 days of entering in F-1 status. Fragomen, Del Rey, Bernsen & Loewy, LLP

  49. Diversity Immigrants • Natives of country designated as low admission states • The Diversity Visa (DV) 2012 Lottery online entry begins in October, 2010 through November, 2010 (60 day period). Access information at Dept of State’s website @ www.dvlottery.state.gov • High school diploma or equivalent (admission to US college) • Within 5 years of applying, acquired at least 2 years of work experience in occupation requiring at least 2 years training or experience • File electronically with picture/No fee • One application only • Family members eligible i.e. spouse and children • Random selection of winners • Must obtain visa within the fiscal year in which applied Fragomen, Del Rey, Bernsen & Loewy, LLP

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