David J. Wilks
March 7, 2016
Overview
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General Overview of U.S. Immigration
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Nonimmigrant Categories (Alphabet Soup)
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Permanent Residence
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Your Immigration Plan
Overview of U.S. Immigration
Generally Four Types of People in the U.S.:
Employment options may
be limited.
Duration of stay limited.
Nonimmigrants
“Others”
TPS
DACA
Asylum
Undocumented
Permanent
Residents
Can live in the U.S. indefinitely
and work for any employer.
Can vote in U.S. elections.
Citizens
Can live in the U.S. indefinitely.
Can work for any employer.
Slang: “Green Card.” Most will need to obtain
nonimmigrant status after
graduation.
Being sponsored under
Temporary Visas
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Specific time limitations
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Specific authorized activities
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Options depend upon nationality/activity/availability of visas
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Normally weeks or months to secure
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PLAN AHEAD
Nonimmigrant Menu
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A
Ambassador, public minister or diplomatic
or consular office
B-1
Visitor for business
B-2
Visitor for pleasure
C
Alien in transit
D
Crewman
E-1
Treaty trader
E-2
Treaty investor
E-3
Specialty Occupation (Professional) Australia
F-1
Student
F-2
Spouse or child of student
G
Representative to international
organization
H-1B Specialty Occupation (Professional)
H-1B1 Specialty Occupation (Professional) –
Singapore or Chile
H-2A Temporary/seasonal worker
H-3
Trainee
H-4
Spouse or child of H
I
Foreign media
J-1
Exchange visitor
J-2
Spouse or child of J-1
K-1
Fiancé(e) of U.S. Citizen
K-2
Derivative unmarried child of K-1
K-3
Spouse of U.S. Citizen
K-4
Unmarried child of K-3
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L-1A
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L-1B
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L-2
M
O-1
O-2
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O-3
P-1
P-2
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P-3
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P-4
Q
R
S
TN
U
V-1
V-2
V-3
Intracompany transferee – manager or
executive
Intracompany transferee – specialized
knowledge
Spouse or child of L-1
Vocational or nonacademic students
Aliens of extraordinary ability
Aliens providing essential support to O-1
artist or athlete
Spouse or child of O
Athletes and entertainers
Artist or entertainer, individual or part
of group
Performer, teacher or coach of culturally
unique program
Spouse or child of P
International Cultural Exchange Program
Religious Workers
Critical Witness
Treaty NAFTA
Victim of abuse who will be a witness
Spouse of legal permanent resident
Unmarried child of V-1 (petitioned for)
Derivative unmarried child of V-1 or V-2
F-1 Students and OPT
 OPT - Optional Practical Training
 Generally available to those who have completed a U.S. degree
 Available for those in graduate programs who have completed
coursework
 Generally, only for a one year period
 Available at times during the academic program
 Curricular Practical Training
 Optional Practical Training
 Can be extended once for STEM, if employer registered for E-Verify
 New STEM Regulations
H-1B Visas
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Specialty Occupations – Professionals
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Bachelor’s degree minimum
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Right type of degree
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Must pay at least prevailing wage or actual wage – whichever
is higher
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6 year limit, but possible to extend beyond if permanent
residence process pending
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Spouse generally cannot work until certain steps taken toward
permanent residence
H-1B numbers
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Not a problem for cap-exempt employer
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65,000 base
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6,800 for H-1B1 (Singapore & Chile)
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20,000 for U.S. Masters degree or higher
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Many employers exempt from the numbers – including postsecondary educational institutions and affiliates
Lottery years – H-1B
 Occurs when more petitions are filed than the available quota
in the first 5 days of “open season” beginning April of each
year
 First step - Random lottery of 20,000 Masters cases
 Second step – random lottery of leftovers of above + all others
What happened in April 2015
 Cases filed between April 1 – April 7, 2015 exceeded 233,000
 In 2013 there were 124,000; 2014 there were 172,000
 “Cap-gap” - If cases is selected, those with post-completion
OPT get an automatic extension of OPT status to bridge them
until October 1, 2016
What if I’m not Selected
in the Lottery?
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Review other nonimmigrant visa options
If STEM discipline, F-1 OPT extension
Seek another degree and extend F-1
Review other work-authorized options
Consider change to B-2 visitor to remain in the U.S. for nonwork purposes
E-3: For Australians Only
 H-1B- like option for Australians only
 No quota limitation
E-1 Treaty Trader/
E-2 Treaty Investor
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Treaty must exist between U.S. and Country in question (the
Treaty Country – as it does with Canada)
Majority of ownership or control of the investing or trading
company must be held by nationals of the Treaty Country
The employee must be a citizen of the Treaty Country
E-1: trade of the company must be “substantial”, principally
between the U.S. and the Treaty Country (more than 50%),
and employee must be supervisor, executive or have essential
skills
E-2: investment must be active, substantial, create
jobs and employee must be filling a key role
Spouse can work
J-1 Visas
 Exchange Visitors – several categories
 Including students, research scholars, trainees, professors
 FMGs who are J-1 are subject to 212(e)
 The two year foreign residence requirement
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Home Government Funding
U.S. Government Funding
Skills List
Foreign Medical Graduates seeking post graduate training
L-1 Intracompany Transferees
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L-1A – Managers/Executives
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L-2 spouses can obtain US work authorization
L-1B – Specialized knowledge
At least one year of work experience abroad with a parent,
subsidiary, branch, or affiliate.
5 years maximum for L-1B; 7 years for L-1A
Dual Intent authorized
O-1 Extraordinary Ability
 Demonstrated Extraordinary Ability
 3 years, then 1 to 3 year extensions, indefinitely
 Evidenced by objective standards
 Scholarly articles
 Presentations
 Elite memberships
 Judge of the work of others
 Original contributions to the field
 Articles written about the individual
TN Status
NAFTA
 Canadians/Mexicans
 Limited numbers of occupations
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– Including but not limited to: Computer Systems Analysts, Engineers,
Graphic Designers, Mathematicians, Statisticians, Research Assistants,
numerous scientific disciplines, lawyers, etc.
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3 year periods
Benefits – speed and expense
Detriment – Temporary Intent
Spouse cannot work
Canadians can apply for TN status at the border
Transition to Permanence
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Nonimmigrant visas are “temporary”
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Though many are long term, disadvantages abound:
– Lack of stability
– Spousal/children work authorization
– 21 and out for children
Brief Overview of
Permanent Residence
Refugee / Asylum
Diversity Lottery
PERMANENT
RESIDENCE
(Green Card)
Family-Based
Employment-Based
Overview of
Permanent Residence
PERMANENT RESIDENCE
Refugee / Asylum
 Well founded fear of persecution
 Political overtones
 Strict timelines for filing
Overview of
Permanent Residence
PERMANENT RESIDENCE
Diversity Lottery
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50,000 annual “winners”
Specific countries only
Electronic submission of applications
Digital photo required
www.travel.state.gov
Overview of
Permanent Residence
PERMANENT RESIDENCE
Family Based
 Limited circle of family
 Spouses and children of USCs
 Regardless of age or marital status
 Spouses and unmarried children of PRs
 Siblings of USCs
 Parents of USCs
Overview of
Permanent Residence
PERMANENT RESIDENCE
Employment-Based
PROCESS CAN TAKE YEARS
Labor
Certification
File I-140
I-140 (EB-1 or NonBacklogged National
Interest Waivers)
Adjust Status
GREEN
CARD
Adjust Status
GENERALLY FASTER PATH
Employment Based Immigration
 Labor Certification Process
 Protecting the Labor Market
 Non-teaching positions (in universities or elsewhere)
 Only person left standing
 University or college teachers
 Special handling
 “Best qualified” standard
P.R. through Labor Certification
 1. Labor Certification
 2. I-140 Employment Based (EB) Petition
 EB-2 – Job requires minimum of a Masters or a Bachelor’s + 5 years
experience
 EB-3 – Job requires less than above
 3. I-485 Application for Permanent Residence
 This 3-step process can take years
P.R. through Labor Certification
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Understanding the Visa Bulletin and its impact on the wait for
permanent residence
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Visa Bulletin:
http://travel.state.gov/content/visas/english/law-andpolicy/bulletin.html
March 2016 Visa Bulletin
EmploymentBased
All Chargeability
CHINA Areas Except
mainland born
Those Listed
INDIA
MEXICO
PHILIPPINES
1st
2nd
3rd
C
C
01JAN16
C
01AUG12
01JUN13
C
15OCT08
15JUL04
C
C
01JAN16
C
C
15MAR08
Other Workers
01JAN16
01FEB07
15JUL04
01JAN16
15MAR08
4th
C
C
C
C
C
Certain Religious
Workers
C
C
C
C
C
5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs
C
22JAN14
C
C
C
Employment Based Immigration
 Possible Exemptions from Labor Certification process:
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Outstanding researcher/professor (EB-1)
Intracompany Managers (EB-1)
Extraordinary Ability (EB-1)
National Interest Waiver (EB-2)
Investor Status (EB-5)
 $500,000 to $1,000,000 investment
 Conditional Status granted
 Employ 10 US workers
Exemptions from Labor
Certification process
1.
2.
I-140 petition
a.
EB-1 if Outstanding Researcher, Person of Extraordinary Ability or
Intracompany Manager
b.
EB-2 if National Interest Waiver
I-485 application for Permanent Residence
Plan the Work & Work the Plan
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Planning is critical
Understanding the time it might take – short and long term
Reviewing individual options
Sometimes the answer is “no”
Deciding what is driving the train
 Immigration?
 Professional development?