Employment Options for International Students Before and After

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Employment Options for International
Students Before and After Graduation
Presented by:
Matthew Martinez, Esq.
Jared Leung, Esq.
Kathy Bunch, Immigration Paralegal
LEGAL DISCLAIMER
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purposes only and is not legal advice. No attorney-client
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Session Goals
• Visa, Status, & I-94
• Maintain Valid F-1 Status
• Work Authorization for F-1
Students
• Work Authorization for J-1
Students
• H-1B And TN Work Status
• Overview of Green Card Process
• Q&A
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What is a “Visa”?
• A visa grants the holder permission to enter the U.S.
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What is an “I-94”?
• The I-94 card controls the terms of stay and serves as
evidence of lawful status.
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Maintain Valid F-1 Status
• Work closely with DSO (Designated
School Official)
• Maintain full course of study:
– Undergraduate students: 12
hours or credits per semester
– Graduate students: certified by
DSO
• Reduced course load possible, must
see DSO first
– One-time only, unless for medical
reasons
– Cannot reduce to less than 50%
of full course load
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Maintain Valid F-1 Status (Cont’d.)
• Cannot work without proper
authorization
• Understand your travel rules:
proper visa and endorsed I-20
• Be very careful with crimes
and misdemeanors: DUI,
underage drinking, shoplifting,
and owning firearms
• Allowed to stay in U.S. for
duration of program (“D/S”)
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Work Authorization for F-1 Students
• On-Campus Employment
• Curricular Practical Training
(CPT)
• Optional Practical Training
(OPT)
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On-Campus Employment
• First academic year prohibition
not applicable
• Work needs to be either:
– On school campus, including
commercial business, such
as bookstore or cafeteria
– Off campus locations
educationally affiliated with
the school
• 20 hours / week during school
year
• Full time okay when school is
not in session
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Curricular Practical Training (CPT)
• Permitted before graduation
• Must be authorized by DSO on I-20
• Must be an integral part of an
established curriculum
• Not allowed during first year of study,
except in the case of graduate students
who require immediate participation of
CPT as part of study
• If used 12 months or more full time
CPT, student is disqualified for any
post-graduation OPT, but time spent on
CPT for less than 12 months does not
reduce OPT eligible time
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Optional Practical Training (OPT)
• Must be directly related to
field of study
• Valid for 12 months
• Okay for both pre- and postgraduation use, but time
spent on pre-graduation
OPT reduces eligible time
for post-graduation OPT
• Apply up to 90 days before
graduation and up to 60
days after graduation –
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• I-765 must be submitted to
USCIS within 60 days after
DSO recommendation
• Careful planning with
international travel during
OPT
Quick Quizzes
True or False?
• I can work on-campus as a T.A. under
“on-campus” work rule
• I can also work in the construction
company that is building a new campus
building as a construction worker
• I can have 11 months and 2 weeks of
full time CPT, and still apply for 12
months of OPT
• I don’t have a job now, so I cannot
apply for OPT
• I can work at Best Buy selling
computers on my OPT because my
major is computer engineering
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Extension of OPT
• OPT Extension possible for additional 17 months for STEM
fields (science, technology, engineering and mathematics)
• Examples of STEM fields:
– Computer Science Applications
– Actuarial Science
– Engineering
– Engineering Technologies
– Biological and Biomedical Sciences
– Mathematics and Statistics
– Military Technologies
– Physical Sciences
– Science Technologies
– Medical Scientist
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STEM OPT and E-Verify
• STEM extension permitted only if students work for
employers enrolled in E-Verify.
• Employer’s E-Verify ID# required for STEM OPT
extension.
• E-Verify: Internet-based system operated by DHS in
partnership with SSA.
• Electronically compares information contained on Form I9 with records contained in DHS and SSA databases.
• New EAD required for STEM extension
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OPT Unemployment Time
• 90-day limit for first 12 months of OPT.
• STEM OPT extension: 30 additional days; maximum 120 days
of unemployment for the entire 29 months.
• OPT work must be at least 20 hours per week.
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OPT Reporting Requirements
• F-1 must report change in employment to
DSO – ASAP or within 10 business days.
• Changes: new job, change of employer,
multiple “short-term gigs,” self-employment,
change of address, or unemployed for more
than 10 days.
• If there is a change of employer the F-1 must
report to the DSO and confirm new
employer’s E-Verify participation
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Work Authorization for J-1 Students
• Academic Training: Exchange visitors that
intend to participate in an approved
program for the purpose of teaching,
instructing or lecturing, studying,
observing, conducting research,
consulting, demonstrating special skills,
receiving training, or to receive graduate
medical education or training
• Allowed to stay in U.S. for duration of
program
• May be subject to a 2-year foreign
residency requirement; may obtain waiver
for it
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Work Authorization for J-1 Students
(Cont’d.)
• Undergraduate and Pre-doctorate: Can
engage in Academic Training for up to
18 months, or the length of time you
have engaged in coursework,
whichever is less
• Cannot begin your program with
Academic Training
• Must begin Academic Training within 30
days of end of program
• Does not require an EAD card – Must
have letter of approval from dean or
advisor and a letter from RO
(Responsible Officer)
– The letter from RO serves in place
of an EAD
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Questions that you may be thinking
• Can I have two part-time jobs for
post-graduate OPT?
• Do I need sponsorship from a
potential employer if I have an OPT
EAD?
• Am I eligible for the 17-months
extension if my field is not in STEM?
• Can I travel back to my home
country or spend a weekend in
Mexico during my OPT time?
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H-1B Specialty Occupations
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H-1B Basics
• Must be in a “specialty occupation” – position which requires at least
a bachelor’s degree in a specific field
• Beneficiary must have that degree or equivalent.
• Degree must be in field of study relevant to occupation.
• Specialized Occupations may include: chemist, biologist, engineer,
physicist, software developer, systems analyst, accountant,
economist, architect.
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H-1B Basics
• Valid for total of 6 years (each petition max of
3)
• “Regular” H-1B cap/quota: 65,000 new H1Bs issued each fiscal year (10/01 to 09/30).
• “Master’s” H-1B cap/quota: 20,000 for holders
of U.S. master’s degree or above. When this
is used up, people with U.S. master’s degree
will use the “regular” quota
• Exempt from cap: extensions, change of
employer, exempt employers (universities,
non-profits affiliated with universities,
research organizations)
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F-1 OPT “Cap Gap” Extension
• Gap: time between end of F-1 OPT status
and beginning of H-1B status on October
1st.
• F-1 OPT “Cap-Gap” Extension: F-1 must
be beneficiary of timely filed H-1B petition
with 10/01 start date, and change of status
to H-1B
• DSO must issue I-20 to cover “Cap Gap”
and update SEVIS
• OPT work authorization will be
automatically extended to bridge gap to
9/30. H-1B status will begin 10/01.
• Do not travel internationally during “CapGap” time
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Hypothetical 1
Natasha Romanova graduated in May 2012 and began working
on OPT EAD, which is valid from 05/01/2012 to 04/30/2013.
Company A files H-1B status for Natasha on 04/01/2013.
– Can Natasha remain in the U.S. after 04/30/2013 when her OPT
EAD expires?
– Can Natasha keep working after 04/30/2013?
– Does Natasha need to apply for a new EAD, assuming that she
is eligible under STEM?
– Can Natasha travel out of the U.S. before 10/01/2013?
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Hypothetical 2
Tony Stark graduated in December
2011 and began working on OPT EAD,
which is valid from 01/01/2012 to
12/31/2012. He is eligible for STEM
extension because his major is robotic
engineering. He was told that he
should “save” his H1B time, so he
applied for STEM extension timely, and
has a new STEM EAD valid from
01/01/2013 to 05/31/2014.
• When should he apply for H-1B?
• If he applied for H1B on 04/01/2014,
will the cap gap protection help him?
• If he applied for H1B on 06/15/2014,
which is after his EAD expires but
within the 60-day grace period, does he
benefit from the cap gap protection?
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Helpful Tip:
Leaving some of your OPT time on
the table is a small price to be sure
to get an H-1B. The cap gap cannot
always bridge the gap.
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Other Important H-1B Issues
• Employer must pay “prevailing wage” as determined by DOL.
• Regulations state that employer is responsible for all legal
fees and costs (filing fees, legal fees).
• No labor market test or need to prove U.S. worker shortage.
• Return transportation cost.
• Material changes in employer or position may necessitate
amended or new petition.
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TN (NAFTA) Status
• A Mexican or Canadian national in a listed profession may
enter the U.S. for up to three years to work for a U.S.
employer in that profession
– NAFTA Professions include:
•
•
•
•
•
•
•
•
•
•
•
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Architects
Accountants
Systems Analysts
Engineers
Lawyers
Scientists in most disciplines
Graphic Artists
Management Consultants
Hotel Managers
Professors
Others
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TN (NAFTA) Status
• Canadian nationals–border
•
adjudication (Canadians are visaexempt).
•
• Mexican nationals apply at
consular posts.
• May also file petitions if in the
U.S.
• TN’s must have temporary,
nonimmigrant intent (but filing I140 is not a bar to extension).
No prevailing wage
requirement.
Need relevant degree
(experience relevant for
Management Consultant,
Scientific Technician).
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Overview of “Green Card” Options
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Employment Based Immigration
• Most classifications have builtin protections for American
labor.
• Generally requires strong
showing that the foreign worker
is one of the best in the field or
that there are no qualified
United States workers available
to fill the position.
• If the latter applies, DOL must
make a determination and
certify that there are not
sufficient United States workers
who are able, willing, qualified,
and available for the position
being offered.
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• This processes is called
Labor Certification –
PERM (Program
Electronic Review
Management process).
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Employment Based Preference
Categories
• EB1: Individuals with extraordinary ability, outstanding researcher
• EB2: Individuals in occupations which require the person has at least
a Master’s degree or Bachelor’s degree plus 5 years of progressive
experience in the same field
• EB3: Professional positions requiring at least a Bachelor’s degree
• Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html
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All Other
Countries
Mainland China
India
Mexico
Philippines
EB-1
C
C
C
C
C
EB-2
C
15JAN08
01SEP04
C
C
EB-3
(Professional)
15MAR07
15NOV06
15NOV02
15MAR07
22AUG06
EB-3 (skilled
workers)
15MAR07
01 JUL03
08NOV02
15MAR07
22AUG06
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Employment Based Immigration
Labor
Certification
(PERM)
I-140
Immigrant
Petition
I-485
application
(AOS)
• I-140 is filed by employer and can be filed at any time.
• I-485 is filed by employee and can only be filed when
employee's Priority Date is current. Employee receives
work permit and travel permit (Advance Parole) within 90
days.
• Once I-140 is approved, and once I-485 has been
pending for 6 months, employee is “portable” and may
change employers.
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Hypothetical Timeline 1
• Steve Rogers graduated in December
2011 with a Master’s in genetic mutation.
His EAD was valid from 01/01/2012 to
12/31/2012.
• He did not apply for STEM EAD
extension, but he applied for H1B through
his employer, InGen. His H1B was
approved for 10/01/2012 to 09/30/2015.
• Steve is from the UK and will be
in “EB-2” category, and there is
no green card quota backlog. He
submits the I-140 and I-485
applications concurrently. All of
them are approved in 6 months,
and he receives his green card in
March 2014
• InGen really likes Steve and wants to
help him get his green card.
• InGen starts the labor certification
process in Jan 2013 and the application
should be approved by 08/31/2013
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Hypothetical Timeline 2
• Thor Odinson graduated in December 2011 with a
Master’s in meteorology. His EAD was valid from
01/01/2012 to 12/31/2012.
• He did not apply for STEM EAD extension, but he
applied for H1B through his employer, Thunderbird
Tech. His H1B was approved for 10/01/2012 to
09/30/2015.
• Thunderbird really likes Thor and wants to help him get
his green card.
• Thunderbird starts the labor certification process in Jan
2013 and the application should be approved by
08/31/2013
• Thor is from India and will be in “EB-2” category.
However, there is a backlog for EB-2 Indian Nationals
for 8 years. Although he can submit the I-140
immediately after the labor cert is approved, he cannot
submit the I-485 applications until his priority date
becomes current, or approximately 2021
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QUESTIONS
Matthew Martinez
[email protected]
602-916-5446
Jared Leung
[email protected]
602-916-5315
Kathy Bunch
[email protected]
602-916-5716
Visit our blog:
www.fcimmigration.com
Follow us on Twitter:
@phximmigration
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