David J. Wilks
April 29, 2015
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U.S. Citizens
Permanent
Residents
Unauthorized
Nonimmigrants
EMPLOYMENT OPTIONS MAY BE LIMITED
DURATION OF STAY IN THE U.S. IS LIMITED
CANNOT VOTE IN U.S. ELECTIONS
Nonimmigrants
Unauthorized
Permanent
Residents
U.S. Citizens
CAN WORK IN THE U.S. FOR ANY EMPLOYER
CAN LIVE IN THE U.S. INDEFINITELY
CANNOT
VOTE
IN U.S.
ELECTIONS
EMPLOYMENT
OPTIONS
MAY BE
LIMITED
DURATION OF STAY IN THE U.S. IS LIMITED
CANNOT VOTE IN U.S. ELECTIONS
ONLY GROUP IN THE U.S. WITH THE RIGHT TO VOTE
CAN WORK IN THE U.S. FOR ANY EMPLOYER
BECOME A CITIZEN THROUGH BIRTH, AS A
CAN LIVE IN THE U.S. INDEFINITELY
DERIVATIVE, OR THROUGH NATURALIZATION
CANNOT VOTE IN U.S. ELECTIONS
ONLY GROUP INOTHE
U.S. WITH
THE RIGHT TO VOTE
VERSTAYED
STATUS
BECOME A CVITIZEN
THROUGH
IOLATED
STATUS BIRTH, AS A
DERIVATIVE, OR THROUGH NATURALIZATION
ENTERED THE U.S. WITHOUT INSPECTION
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When looking for a job in the U.S., determine which
nonimmigrant classifications apply to you:
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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
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Specific time limitations
Specific authorized activities
Options depend upon nationality/activity/availability of visas
Weeks or months to secure
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Lesson: Plan ahead
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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
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OPT may be extended for up to 17 mos. for students not
awaiting H-1B
Requires I-765/EAD
Employer must be E-Verify registrant
Available for those in STEM fields
Classification of Instructional Programs codes published by
the National Center for Education Statistics (NCES CIP codes)
http://www.ice.gov/sevis/stemlist.htm
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Specialty Occupations – Professionals
Bachelor’s degree minimum
Right type of degree
Must pay at least prevailing wage or actual wage – whichever
is higher
6 year limit, but possible to extend beyond if permanent
residence process pending
Spouse generally cannot work until significant
work is completed toward permanent residence
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65,000 base
H-1B1 (Singapore & Chile) have a cut out of those numbers
20,000 for U.S. Masters degree or higher
Many employers exempt from the numbers – including postsecondary educational institutions and affiliates
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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
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Cases filed between April 1 – April 7, 2015 exceeded 233,000
In 2013 there were 124,000; 2014 there were 172,000
Results are still coming in
“Cap-gap” - If cases is selected, those with post-completion
OPT get an automatic extension of OPT status to bridge them
until October 1, 2015
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Review other nonimmigrant visa options
If STEM discipline, F-1 OPT extension for 17 months
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
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H-1B- like option for Australians only
No quota limitation
a)
b)
c)
d)
e)
f)
Treaty must exist between U.S. and Country in question (the Treaty Country).
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.
If E-1 status, must meet a through c above plus: trade of the company must be
“substantial”, principally between the U.S. and the Treaty Country (more than
50%), employee must be a supervisor or have essential skills.
For E-2 investor, must meet a through c above plus: investment must be active,
substantial, create jobs and employee must be a supervisor or have essential
skills filling a key role.
A spouse of an E-1 or E-2 is eligible to receive work
authorization.
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Exchange Visitors – several categories
 Including students, research scholars, trainees, professors
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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 of Home Country
Foreign Medical Graduates seeking post graduate training
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L-1A – Managers/Executives
L-1B – Specialized knowledge
At least one year of work experience abroad with “affiliated”
company to U.S. petitioner
L-2 spouses can obtain US work authorization
5 years maximum for L-1B; 7 years for L-1A
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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
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NAFTA (North American Free Trade Agreement)
Canadian/Mexican citizens only
Limited numbers of occupations – see list
 Including but not limited to: Computer Systems Analysts, Engineers,
Graphic Designers, Mathematicians, Statisticians, Research Assistants,
numerous Scientific disciplines
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3 year periods
Benefits – speed and expense
Spouse cannot work
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With basic documents, analyze visa options
Specific time limitations
Specific authorized activities
Options depend upon nationality/activity/availability of visas
Weeks or months to secure
Plan ahead
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Foregoing nonimmigrant visas are “temporary”
Though many are long-term, disadvantages abound:
 Lack of stability
 Work relationship is the only tether to the U.S.
 Spousal/children work authorization not always available
 Only unmarried children under 21 can tag along
EMPLOYMENT
BASED
FAMILY
BASED
DIVERSITY
LOTTERY
REFUGEE/
ASYLUM
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Well founded fear of persecution
Political overtones
Strict timelines for filing
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50,000 annual “winners”
Specific countries only
Electronic submission of applications
Digital photo required
www.travel.state.gov
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Limited circle of family
Spouses and children of USCs
 Regardless of age or marital status
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Spouses and unmarried children of PRs
Siblings of USCs
Parents of USCs
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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
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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
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3. I-485 Application for Permanent Residence
This 3-step process can take years
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Understanding the Visa Bulletin and its impact on the wait for
permanent residence
Visa Bulletin:
http://travel.state.gov/content/visas/english/law-andpolicy/bulletin.html
EmploymentBased
All
Chargeability
Areas Except
Those Listed
CHINA mainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
01JUN12
15APR08
C
C
3rd
01JAN15
01MAY11
15JAN04
01JAN15
01JUL07
Other Workers
01JAN15
15NOV05
15JAN04
01JAN15
01JUL07
4th
C
C
C
C
C
Certain Religious
Workers
C
C
C
C
C
5th
Targeted
Employment
Areas/
Regional Centers
and Pilot
Programs
C
01MAY13
C
C
C
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Possible Exemptions from Labor Certification process:
 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 FTE US workers
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1. I-140 petition
 EB-1 if Outstanding Researcher, Person of Extraordinary Ability or
Intracompany Manager
 EB-2 if National Interest Waiver
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2. I-485 application for Permanent Residence
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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?
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Watch this space!
Any Questions?
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