Immigration Visas After Graduation Binghamton University March 21, 2012 Miller Mayer, LLP 202 E. State Street Ithaca, NY 14850 (607) 273-4200 www.millermayer.com Overview Nonimmigrant visas Immigrant visas Nonimmigrant Visa Categories A Diplomats B Visitors (business/pleasure) C Transit D Crewman E Treaty trader/investors F Academic students G International Organization H Temporary workers I Journalists/Media J Exchange visitors K Fiancés/fiancées of US citizens L Intra-company transferees M Vocational students N Parents or children of special immigrants O Persons of extraordinary ability P Athletes or entertainers Q International cultural exchange visitors R Religious workers S Federal witnesses (sneaky snitches) T Trafficking of persons victims TN NAFTA professionals (Mexico and Canada) U Certain crime victims V Certain spouses/children waiting for green cards H-1B Nonimmigrant Visas Employer sponsored for up to 6 years in a “specialty occupation” 3 Requirements: • Job must require a Bachelor’s degree or higher in specific field • Beneficiary must have at least the relevant Bachelor’s degree or equivalent • Employer must pay a required wage Procedure File Labor Condition Application (LCA) -Employer must pay higher of prevailing or actual wage; no adverse work conditions for US workers File H-1B petition (Form I-129) Overall processing time frame: • 3-4 months normally • Premium processing possibility: 2 weeks Advantages of H-1B: Duration: • 6 year maximum • 1 year stay outside U.S. refreshes 6 yrs • additional H extensions if green card started by end of 5th year Time to work toward green card No advertising or test of the U.S. labor market -- but new large employer restrictions -- and new ITAR attestations H-1B portability when change employers Disadvantages of H-1B: Tied to one employer Not flexible like F-1 OPT Paperwork, cost and delay October 1st start date + cap race Fees: $825 - $3,550 filing fee $ 2,500 approx. legal fee What is the H-1B “cap”? 65,000 per fiscal year Of 65,000, 6,800 carved out for Chile and Singapore Separate 20,000 for graduates with U.S. master’s degree or higher Race for H cap visas Quota year: October 1 to September 30 Apply Earliest: April 1 (6 months before) Past years’ H-1B quota filled: August 10, 2005 (FY 2006) May 26, 2006 (FY 2007) April 3, 2007 (FY 2008) April 7, 2008 (FY 2009) December 21, 2009 (FY 2010) January 26, 2011 (FY 2011) November 22, 2011 (FY 2012) If needed, USCIS conducts “lottery” to select cases to be considered for H-1B approval 20,000 U.S. Master’s Exemption Defining receipt of degree “complete requirements for degree” Accredited U.S. institutions All advanced degrees included Master’s cases considered under both caps H-1B Cap Exemptions College/university employees Related or affiliated nonprofit entities Nonprofit research organizations Government research organizations Prior cap H-1B holders J-1 shortage area waivered doctors Moving from Exempt to Cap Subject Employer Makes you subject to the cap Concurrent employment: consider part-time with each job Pre-October 1 portability Changing jobs between April 1 and October 1 OPT Timeline & Cap Gap Extension Apply 2/27/12 60-day grace period Program end date 5/27/12 7/26/12 Apply for H 4/1/2013 EAD expires 7/23/2013 You choose your OPT start date Example: 7/24/12 Apply up to 90 days before program end date and no later than 60 days after. 12 months OPT plus cap gap extension 10/1/2013 Good News Administrative Efforts 17-month OPT extension for PRIOR STEM degree H-4 work authorization for certain spouses Article: DHS Reforms To Attract And Retain Highly Skilled Immigrants P.L. 111-230 – Large Employers P.L. 111-230 certification that large company does not have 50% or more H-1B employees; if more than 50%, employer pays additional fees ITAR -- Export Controls Attestation Regulations restrict release of certain “technology” and “technical data” to certain foreign nationals Employers of covered foreign nationals must get a license to release “technology” or “technical data” H-1B Conclusion H-1B visas are the workhorse of the temporary worker visa categories, but are complex and must be done correctly to avoid immigration or Labor Department violations. Limited supply makes careful planning essential. Fraud Site Visits and LCAs for New Worksites Employer Site visits: USCIS Office of Fraud Investigation DOL LCA audits Foreign National inspections: U.S. consulate DS-160 visa processing CBP airport inspection: where do you work? Carry LCA for additional worksite Border patrol interior stop compliance important, enforcement occurs Other NIVs B/WT: bridging as a visitor E-1/E-2: treaty traders/investors E-3: only for Australians F/J: back to school options J: professional trainees H-3: Up to two years of on-the-job training L-1: move out of U.S. for a year L-2: derivative spouses with work authorization O: Extraordinary ability aliens (researchers and artists) Other NIVs continued E-3: only for Australians • • • • 2 year renewable, indefinitely 10,500 annual quota LCA only, consular filing Spouse and child work permits L-1: multinational transferee • • • • 12 months foreign employment Executive, manager, specialized knowledge Lower cost, green card, harsh adjudications Spouse work permits Other NIVs continued (no quota, no maximum stay) E-1/E-2: treaty traders/investors • • • • Start/buy a company 50+% foreign owned Lead, direct, manage No China, India; few Middle Eastern or African countries Os and Ps: extraordinary ability or performer • Portfolio, c.v., reviews and publications • 3 of 8 criteria O-1 Criteria Eight criteria for classification: 1. Receipt of a nationally or internationally recognized prize for achievement in field 2. Membership in associations in field that require “outstanding achievement” of their members 3. Material published about applicant in major trade publications or other major media 4. Applicant serves as a judge of others in field either individually or on a panel 5. Original, scientific, scholarly, artistic, athletic, or businessrelated contributions of major significance in field 6. Authorship of scholarly articles in field 7. Performing a critical or leading role for organizations that have a distinguished reputation 8. Commanding a high salary in field TNs Mexican/ Canadian citizens Unlimited extensions Residence outside U.S. Up to 3 years in job offer in listed occupation Bachelor’s degree/license in that field See chapter 16 of NAFTA and 8 C.F.R. § 216.4 Common TN Occupations Accountant Architect College/university professor Computer systems analyst Engineer Graphic designer Management consultant Occupational therapist Registered nurse Scientific technician Social worker Urban planner TN Procedure for Canadians Bring to U.S. port of entry: • Proof of citizenship • Statement from employer stating the qualifications of the position • Evidence of applicant’s qualifications for that position • Filing fee Approved applicants can leave and re-enter the U.S. with their endorsed multiple entry I94 cards How Can I Become a US Permanent Resident? Family-based Employment-based Diversity Lottery Family Relationship Basis Immediate Relatives –children, spouses, or parents of US citizens (no limit per year) Unmarried sons & daughters of US citizens (23,400 visas per year) Spouses/minor children & unmarried sons and daughters of US permanent residents (114,200 visas per year) Married sons and daughters of US citizens (23,400 visas per year) Brothers and sisters of US citizens (65,000 visas per year) US citizen son or daughter sponsor must be age 21 or over Employment Basis Priority Workers (EB-1) 40,000 visas per year Extraordinary ability (self-sponsor) Outstanding professors & researchers (tenure-track position) Business executives & managers (no labor certification required) Advanced degree holders (EB-2) 40,000 visas per year Professionals with advanced degrees or exceptional ability in sciences, arts & business (labor certification required) National Interest Waiver of labor certification requirement Skilled & unskilled workers (EB-3) 40,000 visas per year Skilled workers in short supply Professionals with bachelor’s degree Unskilled workers in short supply (all require labor certification) Special Immigrants (EB-4) 10,000 visas per year Religious workers; certain US govt. employees; Panama Canal employees; plus certain dependent juveniles Investors (EB-5) 10,000 visas per year Must invest between $500,000 and $1 million Must create at least 10 full-time jobs Most Common Way to Get an Employment-Based Green Card (for EB-2, EB-3) PERM (DOL) I-140 Immigrant Visa Petition (USCIS) Adjustment of Status AOS (USCIS) Consular Processing Overseas (DOS) PERM Labor Certification A certification from the Department of Labor that a particular position at a particular company is “open” because no qualified U.S. workers are available Employer must complete 5 kinds of recruitment, show ability to pay wage and prepare audit file Electronic filing with US DOL Upon certification, must file I-140 within 180 days Final step: may have to wait for some EB-2, EB-3s I-140 Green Card Petitions (without PERM Labor Certification) Three types of EB-1 priority workers: 1. EB-1-1 Extraordinary ability aliens 2. EB-1-2 Outstanding professors and researchers 3. EB-1-3 Multinational executives and managers EB-2 (Advanced degrees, Exceptional ability) with “national interest” waiver Green Card Processing Backlogs “Priority date” is “current” EB-3 category and India and China in EB-2 category: It could take five years or longer to get an immigrant visa, even if you start today! Read our bi-monthly newsletters for up to date news information Quota Delay: Wait for Priority Date to File Adjustment of Status (April 2012) EmploymentBased All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd C 01MAY10 01MAY10 C C 3rd 08APR06 01MAR05 01SEP02 08APR06 08APR06 Other Workers 08APR06 22APR03 01SEP02 08APR06 08APR06 4th C C C C C Certain Religious Workers C C C C C 5th C C C C C Targeted Employment Areas/ Regional Centers C C C C C 5th Pilot Programs C C C C C EB-5 Immigrant Investors Reserved for immigrants who invest in and manage U.S. companies that benefit U.S. economy and create or save at least 10 fulltime jobs $1 million normally required to invest; can be $500,000 in rural or poor areas Get conditional residence for two years; then must prove investment worked to get condition removed Law allows up to 10,000 EB-5 green cards per year No quota backlogs Sources of Information on Immigration Law Citizenship & Immigration Services – Statutes & regulations – Forms – Procedures and instructions – Contact information – Processing times Sources of Information on Immigration Law U.S. Department of State – Links to embassies & consulates worldwide – Application procedures and consulate closings – Wardens messages and travel advisories – Public announcements – Derivative citizenship and renunciation – Visa Bulletin regarding priority dates Parting Thoughts Realistic assessment is important Planning ahead is key Get to know employers soon Think of alternative and creative employment options Need help with immigration matters? Interested in an immigration consultation? Sign up for a free monthly immigration newsletter Contact: Miller Mayer, LLP 202 E. State Street, Suite 700 Ithaca, NY 14850 (607) 273-4200 [email protected] Access this presentation online at: https://millermayer.box.com/ s/07ebf3a14b7e92bf4873 Questions?