J-1 to O-1 Department Training Advanced. Jan. 21, :00 am 11:00 am

Transcription

1 J-1 to O-1 Department Training Advanced Jan. 21, :00 am 11:00 am

2 Advanced Training Agenda What s new at IFSO Visa selection Non-IFSO-sponsored classifications (B-1/WB, F-1 OPT, TN) J-1 status updates J-1 student intern category, bars and bans H-1B status updates H-1B Processing times and timelines J and H comparison O (NO!) Questions and Answers 2

3 What s New at IFSO Online Recharge New staff members, and departmental-based advising Kevin DelMastro; H-1B and J-1; SIO, Qualcomm, Rady, SDSC, UNEX, affiliates Richard Yien; H-1B; School of Medicine, SOM ORUs, and Skaggs; And all permanent faculty hires Sandra Vargas; H-1B; All other main campus departments and ORUs Dalia Alshamas; J-1; School of Medicine, SOM ORUs, and Skaggs Becky Guberek; J-1; All other main campus departments and ORUs Roark Miller; F-1, WB/B-1, TN, PR questions 3

4 Visa Selection Common classifications for employees at academic institutions: J-1 (IFSO sponsored) H-1B B-1/WB F1-OPT TN (IFSO sponsored) (non-ifso sponsored no salary allowed) (non-ifso sponsored) (non-ifso sponsored, usually) EAD holders (J-2 spouses, adjusting to Permanent Residency; non- IFSO sponsored) How to choose which classification? Immigration regulations, internal policies, available resources, expediency 4

5 Appointment titles and UCSD internal policies UCSD internal policy for sponsored visa classifications and appropriate titles: Guidance within PPM (J, H, and PR) Long-term visa planning for initial hires Example: PI wants to hire an Asst Statistician in F-1 OPT status what are the long term possibilities for employment of this person? 5

6 Visa classifications not sponsored through IFSO: B-1/WB B-1/WB VISITORS FOR BUSINESS For business consultations, observations, independent research. NOT for internships, collaborative research in the lab. J-1 IS SAFER B-1: up to 6 months WB: up to 3 months. NO extension or change of status, or travelling to Tijuana for re-entry in another status. Only available to citizens of approved visa waiver countries (list on our website) Note on B-2/WT: AVOID USING Reimbursement allowed for business expenses Honorarium also allowed if activity on campus lasts for a period of 9 or fewer successive days, and not received from more than 5 institutions Procedure for invitation: Pros and Cons: Expediency and cost, particularly visa waiver Visa denials; POE assigns B-2/WT or denies entry; abuse of per diem/misunderstanding of employment; 30% tax withholding maximum for payment authorizations 6

7 F-1 Student: Optional Practical Training (OPT) Employment authorization in a specific field of study available to F-1 international students graduating from U.S. educational institutions for up to 12 months. Required documents: Employment Authorization Document (EAD) (see: pdf, p ) Register at IFSO: we send out status expiry alerts Pros and Cons To avoid $1225 Premium Processing fee, contact IFSO 7 months in advance for change of status to H-1B; 4 months for J-1 7

8 F-1 Student: (OPT) STEM Extension OPT may be extended an additional 17 months if student completed a degree in one of the STEM fields (Science, Technology, Engineering, Mathematics). The application for a STEM extension must be supported by the degree-granting school. Employer must be certified with E-Verify. Required documents for I-9: Valid EAD or I-20 with endorsement from degree-granting school and Expired Employment Authorization Document (EAD) (see: p.21) Contact IFSO 7 months in advance for change of status to H-1B; 4 months for J-1 8

9 Sample STEM Employment Authorization Document ( EAD card ) 9

10 TN Status TN is an immigration status for Canadian and Mexican citizens admitted to the United States as business professionals under the North American Free Trade Agreement (NAFTA) TN professions listed on IFSO website: Must be paid employment (not necessarily from UCSD) May be part-time Procedures: Department issues letter with specific contents (see IFSO website at: Register with IFSO (expiry notices will go out reminding scholars of impending status expiration) 10

11 TN Status Procedures (see: Canadians no visa required Mexicans must apply for a TN visa first At the port of entry provide: Evidence of citizenship Letter from the chair of the academic department which must state: The activity to be engaged in, including a detailed job description; and correlation with the list of approved TN professions The anticipated length of stay (up to 3 years) The amount of funding, including benefits Confirmation that the position requires a minimum of a bachelor s degree in a specified field of study Confirmation of the person s academic credentials Original diploma of the highest academic degree (with foreign credentials evaluation if degree is not from a Mexican or Canadian institution) Professional license (if required for position) Curriculum vitae $50 (Canadians only) 11

12 Other EAD Holders (J-2 dependents, persons adjusting status to permanent residency) Must have EAD card in hand to be employed TN professions listed on IFSO website: May be part-time Register with IFSO (expiry notices will go out reminding scholars of impending status expiration) Pros and Cons Expediency and cost Employment authorization is dependent upon principal s immigration status 12

13 Scenarios 1. A Canadian national with a stellar publication record wants to visit your department for one month to participate in a seminar, give 3 talks on her research area, observe research techniques used in UCSD labs, and consult with professors in your department. Your department would like to pay her a nominal amount. Which visa classifications are potentially available for her visit? Which classification might be most cost-effective for all parties? What might be an appropriate appointment title? What type of payment could be made to her in the different classifications? 2. Your department wants to hire a postdoctoral researcher in one month; he informs you that he is an F-1 student with Mexican citizenship. What are some possible visa classifications that might be used to hire him? What are some potential pros and cons for each classification? 13

14 J-1 STATUS: Reminders & Updates Please always use up-to-date forms; download from Notify our office of significant job changes, such as: Funding Change in worksite Job title PPS separation or early program completion (IMPORTANT: complete the Departure Form immediately) Family Orientation: 1 st & 3 rd Wednesday of each month 9:30am New title for paid Visiting Grad Students: Junior Specialist 14

15 J-1 Student Intern category Must be used for Undergraduate level students (optional for Graduate) Must be enrolled in, and coming from, a home-country institution that recognizes this internship as part of the student s curriculum Overall 12-month limit to stay No extension allowed beyond the 12-month max Additional requirements for category: DS-7002 form ( TIPP ) filled out/signed by dept, student, and IFSO Final evaluation by supervisor required (and mid-term as well if over 6 months) No UCSD salary payments UCSD classification: Staff Volunteer For full details, see: 15

16 Bars and Bans: the Two-Year Home Residence Requirement or 212(e) J-1 Exchange Visitors subject to this rule must return to their home country or last legal residence for two years (or get waiver) before applying for an H-1B (temporary employment), L-1 (intracompany transfer) or immigrant visa. J-1 Exchange Visitors subject to 212(e) may not change their status within the U.S. 212(e) does not have to be fulfilled immediately or all at once. J-1 Exchange Visitors may return to the U.S. in other visa categories such as J-1, F-1, B-1, B-2, WB, WT, O-1, etc. while still subject. 16

17 212(e)- Who is Subject? 1. Direct US or Home Government Funding Paid directly to scholar from home country or U.S. government. Funding received as salary from UCSD is not considered government funding for this purpose. 2. The Exchange Visitor Skills List Areas of specialization identified as being in short supply by scholar s government (China: ALL) How can you tell if a J-1 has 212e?... 17

18 212(e): Where To Look Bottom annotation of J-1 visa stamp, i.e. Bearer is subject to 212(e). Bottom left-hand side of DS- 2019, the Consular Officer signed and indicated the preliminary endorsement of 212(e) requirements

19 Bars and Bans: The 24-Month Bar Applies to J-1 Research Scholar or J-1 Professor only (#4 on DS-2019) Any scholar who participates in a J-1 Professor or Research Scholar category is subject to a 24-month bar on repeat participation in those categories Cannot start new J-1 Research Scholar or Professor program for two years after completion of current program Does not prevent the scholar from returning to the U.S. in other J categories (i.e. Short-Term Scholar) or in any other visa category such as H-1B, B-1/B-2, WB/WT, F-1, TN, etc. 19

20 Options for returning to UCSD if 24-month bar applies Need to return within 2 years? Contact our office prior to scholar s departure J-1 Short-Term Scholar: Can be used for appointments 6 months or less H-1B: must be paid employment TN: Canadian or Mexican citizens only Others: B-1, WB, F-1, etc. OR: Keep current J-1 record ACTIVE by authorizing leave of absence (see next slide) 20

21 Keeping J-1 Record Active While Outside of Country Example: A scholar has been at UC San Diego from 01/01/2013 to 1/31/2014. He will return to his home country for 6 months to defend his Ph.D. thesis but wants to return in August 2014 for an extended postdoctoral appointment in J- 1 status. How does one avoid the 24-month bar? Solution: Leave of Absence Authorization: a) Must maintain on-going collaboration during absence b) Leave of absence period no more than 6 months c) Scholar submits Leave of Absence application form ( ) with department endorsement. Extension/recharge required at this point if LOA return date falls after expiration of current J-1 program (appt title remains the same) All entries into U.S. during this period (e.g., conference) should be in J-1 21

22 Prior to return to UC San Diego: Reactivation of J-1 record Scholar should confirm expected return date with department Department notifies IFSO of any new appointment details (submit amendment form as appropriate) Scholar checks in at IFSO upon return 22

23 J-1 Short-Term Scholar ADVANTAGES-- No 24-month bar Can return as a Research Scholar/Professor any time in the future Can be used for multiple separate visits. DISADVANTAGES No extensions beyond the 6-month limit If scholar needs to return in new J program, scholar must pay SEVIS fee again, apply for new J visa and pay visa fee again 23

24 H-1B Status: Clinical Appointments Foreign Medical Graduates: M.D. degree or equivalent Medical license -- one of the three below California 2111 or 2113 PTAL (Postgraduate Training Authorization Letter) ECFMG Certificate from Educational Commission for Foreign Medical Graduates Passing score on USMLE steps 1, 2, and 3 U.S. Medical Graduates: M.D. degree or equivalent Medical license -- one of the three below California 2111 or 2113 PTAL (Postgraduate Training Authorization Letter) Clinical trainees (residents or fellows): Must have Graduate Medical Education office approval for H-1B requests (see: 24

25 H-1B Status: Employment/Compliance Issues Amendment: Inform IFSO when employment conditions change: Job title especially unionized to non-unionized or vice-versa For example: Postdoctoral Scholar Employee usually a 5 year maximum appointment after which a promotion to Asst Project Scientist is often made Significant change in salary Change of worksite Reduction in employment hours Note: All require an amended request prior to the change of employment condition; some may require amended H-1B petitions, to maintain compliance with federal regulations. Departure: Inform IFSO when employment terminates (departure form) Notice posting: Please return these to IFSO promptly; we will follow up and request these on a regular basis (non-unionized only) 25

26 H-1B Status: Managing the Six-Year Time Limit Recapture time Time spent outside the US during the six years of H-1B Require evidence boarding pass, itineraries, entry stamps, exit stamps, etc. Visa retrogression In the PR process, if the I-140 is approved, and from oversubscribed country (China or India), we may apply for a 3 year extension at the end of the 6 years 7 th year extension In the PR process, if Labor Certification or I-140 has been pending for more than 365 days, we may apply for a one year extension at the end of the 6 years New six years If 12 months outside the U.S. 26

27 H-1B Status: USCIS Processing Times and Repercussions Government processing times are outside the scope of our control, and can vary dramatically: Prevailing Wage Rate Determinations (USDOL; non-unionized positions only) USCIS petition adjudication Repercussions Lapse in employment eligibility/worker productivity H-1B employee losing driving privilege (license tied to approval notice dates) and other privileges tied to approval notice dates IFSO recommends USCIS Premium Processing Service for all H-1B cases ($1225) Must be paid by department unless personal benefit attested to by beneficiary 27

28 RUSH In-House Determinations of Prevailing Wage Rate For situations where employee may fall out of status/lose employment eligibility Carries risk of higher wages, paid retroactively; Department Chair must sign RUSH memo/request certifying understanding of this possibility RUSH fee of $200 (fee for premium OT pay for scholar advisors) Covers ONLY initial review, and in-house Prevailing Wage Rate determination, and immediate filing of LCA (all within five days, after which regular IFSO processing resumes) Subject to availability OT work must be limited 28

29 Current Timelines: IFSO through H Approval Notice Union Non-Union 1. IFSO review 1-2 wks. 1. IFSO review 1-2 wks. 2. DOL PWD days 2. DOL LCA 7-10 days 3. USCIS Regular 2-6 mths. 3. DOL LCA 7-10 days 4. USCIS Regular 2-6 mths. USCIS Premium bus. days USCIS Premium bus. days 4. US Post 2-14 bus. days 5. US Post 2-14 bus. days TOTAL Regular 3-7 mths. TOTAL Regular 4-9 mths. TOTAL Premium 6-8 wks. TOTAL Premium 2-3 mths.

30 Current Timelines: IFSO through H Approval Notice PORTABILITY 30

31 Case Study 1. Raj Patel is finishing his first three years in H-1B status having spent all three years at UCSD as a Postdoctoral Scholar-Employee. The PI would like to sponsor Raj for another three years in this same status. Thinking about limitations of postdoc appointments at UCSD and wage requirements for H-1B positions, what are some issues that you might consider addressing with the PI before submitting an extension request to IFSO for another three years as a Postdoctoral Scholar- Employee? 31

32 J-1 vs H-1B: A Comparison For a comparison of J-1 vs H-1B, see IFSO website at: Review handout of this document 32

33 OH NO! O-1 Status What: Person of Extraordinary Ability in the fields of science, education, business, athletics, or arts one of a small percentage who has risen to the very top of their field. No limit to amount of time, but granted initially for up to a 3-yr increment through a USCIS-adjudicated petition. How: Very high bar established; arduous gathering of evidentiary documentation. Significant cost (IFSO recharge; USCIS filing fee) and time. Why: for persons who are subject to 212(e) allows a salaried employee to maintain/begin employment when the H-1B route is unavailable. 33

34 Upcoming Attractions Future Trainings ( Monthly Permanent Residency Workshops Jan 30 PR workshop 10:00 1:00 p.m. Oceanids Pavilion (IC) Feb 27 PR workshop 10:00 1:00 p.m. Oceanids Pavilion (IC) Ongoing Departmental Mentoring Program: contact Kevin at to sign up as mentor or mentee 34

35 Any Questions? Please do not hesitate to contact IFSO for advice and guidance! Showing up in the wrong status can have serious consequences International Faculty & Scholar Office Phone:(858) Fax: (858)

36 Roark Miller x43731 Sandra Vargas-Tinoco x41939 Becky Guberek x44558 Jennifer Homrich x25851 Richard Paili Yien x24015 Kevin DelMastro x25541 Dalia Alshamas x61447 Jerry Linkon 36

37 Thank You! International Center University of California, San Diego 9500 Gilman Drive #0018 La Jolla, CA Phone (858) URL icenter.ucsd.edu 37