Presented to: UNCC Students February 20, 2015 6100 Fairview Road, Suite 200 Charlotte, NC 28210 P 704.442.8000 www.garfinkelimmigration.com Based in Charlotte, North Carolina One of the largest immigration law firms in the Southeast Six (6) immigration attorneys & twenty (20) paralegals/support staff Our clients include: ◦ ◦ ◦ ◦ ◦ Numerous NC colleges & universities Several NC healthcare systems One of the largest automotive suppliers in the world One of the largest supermarket chains in the U.S. The second largest public school system in NC 2 BA & JD – Wake Forest University Practicing Immigration & Visa Law since 1984 American Immigration Lawyers Association (AILA) ◦ Member since 1985 ◦ Carolinas Chapter President 1995 & 1996 ◦ Served on National Board of Directors Certified as a Specialist in Immigration & Nationality Law by NC State Bar since 1997 Member of Alliance of Business Immigration Lawyers (ABIL) 3 B.A., Hollins College J.D., Stetson University Practicing Immigration & Visa Law since 1995 Certified as a Specialist in Immigration & Nationality Law by NC State Bar American Immigration Lawyers Association (AILA) ◦ Member since 1995 ◦ Former Secretary, Treasurer, AILA Central Florida Chapter; Former Treasurer, AILA Carolinas Chapter Best Lawyers in America, 2013-2015 International Who’s Who of Corporate Immigration Lawyers, 2012-2015 4 Introduction Temporary Work Visas (including H-1B Visa) ◦ Types of Visas ◦ H-1B Issues “Green Card” Options, Process & Availability Questions & Answers 5 Department of Homeland Security comprised of: ◦ US Citizenship & Immigration Services (“CIS”) ◦ US Immigration & Customs Enforcement (“ICE”) ◦ US Customs & Border Protection (“CBP”) Department of State: ◦ Responsible for visa services at U.S. consulates abroad Department of Labor: ◦ Administers Permanent Employment Certification Application process 6 Two Visa Categories Nonimmigrant – Temporary Immigrant – Permanent (Green Card) 7 Nonimmigrant Visa Type Sponsorship Required Duration of Visa Self Petition Work Permission Spousal Work Permission H-1B Employer must sponsor and cover all associated fees Up to 6 years (longer in some cases) No Yes No H-3 Trainee Employer must sponsor Up to 2 years, no extension No Employment only incidental to training, stipend No J-1 Exchange Visitor (Trainee/Intern) Approved agency must sponsor 18 months (Trainee); 12 months (Intern) No With DOS approval Yes, with EAD L-1A/L-1B Intracompany Transferee Employer must sponsor Up to 7 years (L-1A) or 5 years (L-1B) No Yes Yes, with EAD E-1/E-2 Treaty Trader/Investor Employer must sponsor Up to 5 years, renewable indefinitely Yes- If owner of company Yes Yes, with EAD O-1 Extraordinary Ability Employer must sponsor Up to 3 years and extensions possible No Yes No TN- NAFTA Employer must sponsor Up to 3 years and extensions possible No Yes No 8 B-1/B-2 (Visitor Visa/Visa Waiver) E-1/E-2 (Treaty Visas)* F-1 (Student Visa) O-1 (Extraordinary Ability)* H-3 & J-1 (Trainee Visas) TN-1 (NAFTA Professional)* L-1 (Intracompany Transferee) H-1B (Professional)* 9 Always employer-specific May be position- & location-specific (depending on visa type) Processing times for visa petition approval/visa issuance normally 90-120 days Premium Processing Program - $1,225 secures 15-day adjudication/review 10 Position offered must require at least a Bachelors degree FN must possess degree (or equivalent) related to position offered Visa is location & job specific 11 Six (6) year limit (with exceptions) – granted in maximum of 3-year increments Employer must file petition, agree to pay “required wage” & return transportation costs upon termination FN in valid H-1B status may transfer & work for new employer upon filing of H-1B petition (portability) 12 Since 1990, annual cap on number of H-1B petitions which may be approved USCIS may only approve 65,000 visa petitions per fiscal year Additional 20,000 visas authorized for those with U.S. Masters & Ph.D. degrees 13 Filing period began April 1, 2014 On April 7, 2014, USCIS reached 65,000 H-1B petition cap AND 20,000 H-1B “advanced degree” cap USCIS received approximately 172,500 total petitions 14 Filing period begins April 1, 2015 Many expect cap to be reached in early April Once cap is reached, no “cap subject” H-1B petitions accepted until April 1, 2016 (absent change in law) 15 The following are subject to annual cap: ◦ FNs seeking H status for 1st time ◦ FNs changing from cap-exempt to cap-subject employer The following are NOT subject to annual cap: ◦ Petitions for FNs currently in H-1B status (i.e., extensions or change of employers) ◦ FNs who have been counted against H-1B cap within past 6 years ◦ FNs who work at institutions of higher education or nonprofit related to/affiliated with institutions of higher education 16 Applies to F-1 students on OPT where H-1B petition accepted on or after April 1 Extends employment authorization from OPT end date (if after April 1 and before October 1) to H-1B effective date Does not authorize travel 17 E-1/E-2 - Treaty Trader/Treaty Investor O-1 - Extraordinary Ability TN - Treaty NAFTA L-1 – Intracompany Transferee 18 Five Ways to Qualify Family Asylum Investment Diversity Lottery Employment 19 Five (5) employment-based categories: EB-1 •Priority Workers EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability EB-3 •Professionals, Skilled and Unskilled Workers EB-4 •Special Immigrants EB-5 •Employment Creation 20 International Managers & Executives Outstanding Professors & Researchers* FNs of Extraordinary Ability * ◦ *USCIS regulations contain list of eligibility criteria 21 To qualify as “advanced degree professional”, FN must possess advanced degree & position must require advanced degree (or equivalent) USCIS regulations set out criteria for exceptional ability Can bypass labor certification process by proving employment would serve U.S. “National Interest” 22 For FN who possesses 4-year university degree where job offered requires degree; or For FN who possesses minimum of 2 years of experience in position requiring minimum of 2 years of experience 23 STEP 1 – Labor Certification (“PERM”) ◦ Requires proof of no minimally qualified available U.S. workers ◦ Current Processing times: 18 months if no DOL audit ◦ 12+ months if audited 24 STEP 2 – Immigrant Petition, Form I-140 ◦ Current processing times: Six (6) months + Step 3 – Application for Adjust Status, Form I-485** ◦ Current Processing times: Up to nine (9) months ** APPLICATION CANNOT BE FILED UNLESS PRIORITY DATE IS CURRENT 25 1st Preference • CURRENT 2nd Preference • CURRENT 3rd Preference • January 1, 2014 26 1st Preference • CURRENT 2nd Preference • September 1, 2005 3rd Preference • December 22, 2003 27 1st Preference • CURRENT 2nd Preference • March 15, 2010 3rd Preference • September 1, 2011 28 Increase number of years STEM graduates can participate in OPT Allow individuals whose 1st college degree is in STEM but 2nd degree is not to qualify for STEM OPT (e.g., MBAs with Bachelors in Engineering) Expand STEM degree field list Issue guidance to clarify ability of entrepreneurs, researchers, inventors & founders to quality for National Interest Waiver green card Temporary injunction affects only expanded DACA & DAPA programs 29 Uncertain in light of Executive Action Comprehensive law would likely include ◦ Legal status for “undocumented” ◦ Employee verification system ◦ Changes to legal immigration 30 Steve.Garfinkel@garfinkelimmigration.com 6100 Fairview Road, Suite 200 Charlotte, NC 28210 P 704.442.8000 www.garfinkelimmigration.com