Work Visa Options After OPT

Transcription

1 Work Visa Options After OPT Wolfsdorf Immigration Law Group Fuji Whittenburg Attorney at Law VISA-LAW New York City Los Angeles This presentation does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed Wolfsdorf Immigration Law Group (all rights reserved) The contents of this document are proprietary and should not be duplicated or shared without express permission from Wolfsdorf Immigration. Like us on Facebook Follow us on Twitter

2 CPT and OPT Curricular Practical Training (CPT) Allows employment during school year under certain circumstances Optional Practical Training (OPT) How long does it last?

3 STEM OPT 17-Month Extension of OPT (total of 29 months) STEM students (Science, Technology, Engineering, Mathematics) In May 2012, ICE expanded list of designated STEM degree programs to include other related fields so make sure you check the list, your degree may qualify. DHS STEM designated degree program list Job must directly relate to degree major Employer must be registered with E-Verify STEM OPT must be from degree on which OPT is based

4 OPT (continued) Unemployment periods 90 days of unemployment = out of status (regular 12-month OPT) 120 days of unemployment = out of status (STEM 29-month OPT) How to avoid periods of unemployment Volunteer minimum 20 hours in your field of study Advice: Stay in close contact with your ISO

5 OPT (continued) Don t forget to apply! 90 days prior to program end date; or 60 days after program end date Always check with your school for exact filing dates Apply even if you plan to return home after graduation Use it as a stepping stone to find that H-1B employer!

6 What Are Your Options? H-1B Professional Occupation Visa What is a professional occupation? Job must be one that requires a Bachelor s degree in that field to perform the job E.g. Financial Analyst, Accountant, Engineer, Account Executive, Operations Analyst, Computer Scientist, Software Engineer, Graphic Designer

7 H-1B Professional Occupation Employer-specific Part-time or full time Visas Concurrent H-1B for multiple employers 6 year maximum; granted in 3 year increments At-will employment Portability can transfer H-1B to new employer at any time - not subject to H-1B cap again (already counted as part of the H-1B cap)

8 The H-1B Quota Fiscal Year (FY) October 1 to September 30 H-1B Quota/Cap private industry employers 65,000 per fiscal year 5,400 Singapore 1,400 Chile 20,000 for U.S. graduates with MA or higher degree

9 H-1B Cap Timing Issues: History: October 1, March Madness H-1B computer generated lottery to select petitions FY 2010 cap reached December 21, 2009 FY cap reached January 27, 2011 FY 2012 cap reached November 22, 2011 On June 12, 2012, USCIS announced that the H-1B cap was reached on Monday, June 11, This was shortest H-1B filing season since 2008 (2 months), so we are predicting a very short Cap season file early! How early can you file an H-1B? April 1

10 H-1B Cap-Gap Relief Applies to all F-1 students who timely file H-1B petition during acceptance period (on or after April 1) Timely = while D/S is still in effect (valid I-20, valid OPT, or within 60 day grace period). F-1 status automatically extended. employment authorization automatically extended (must be filed prior to OPT exp.) Extended until adjudicated or September 30, If denied/rejected, have 60 days from date of notification.

11 F-1/H-1B Cap-Gap Relief Graduation May 2012 OPT starts July 2012 File H-1B April 1, 2013 OPT ends July 2013 CAP-GAP PERIOD October (H-1B starts) If selected for H-1B cap-gap relief until September 30 (H-1B starts on October 1) no gap! J If not selected, cap-gap relief ends upon rejection, denial or revocation (and 60 day grace period from date of notification)

12 H-1B Process Agencies involved: USCIS and Department of Labor (DOL) Department of Labor steps: 1. Verify Federal Employer Identification Number (FEIN) 3-5 days. 2. Labor Condition Application (LCA) Submit LCA to DOL online, takes one week to be certified. USCIS steps: 1. Submit application via mail to USCIS Support Letter with job description Forms I-129, I-129 H, I-129 Data Form Government Filing Fees

13 Employer Obligations Must pay prevailing wage you can find this at: No benching (just b/c it s a slow season at work, employer can t withhold work and pay) Termination must offer reasonable costs of transportation home must notify USCIS

14 Who is Responsible for all the Fees? Training fee must be paid by employer Other govt. filing fees may be paid by alien or employer Legal fees can be paid by alien or employer If foreign national pays any of the filing fees or legal fees - MUST STILL BE PAID PREVAILING WAGE E.g. Prevailing wage is $60,000; alien salary is $60,000. If alien pays for any of legal fees or government filing fees salary will drop below PW. Who will know?

15 H-1B Audits Increase in fraud investigations and worksite visits USCIS hired 1,500 investigators to conduct 25,000 worksite visits An agent can show up and ask to speak with you and supervisor, make sure you are performing in H-1B job, can ask to see payroll records.

16 The Cap has been met, so now what? Other H-1B options: H-1B for Cap-exempt organizations (i.e. employer is not subject to the H-1B cap can file anytime) Institutes of higher education, i.e. universities and colleges Non-profit organization affiliated with institute of higher education Non-profit research organization Government research organization Cap-exempt H-1B to cap-subject employer (university to private industry) Subject to H-1B cap (never been counted)

17 Other H-1B Options: H-1B Extensions: The H-1B cap does not apply to extensions. H-1B Remainder Option previously held H-1B status and did not use 6 year maximum? e.g. H-1B to F-1 to H-1B e.g. previously held H-1B and then left U.S. Use remainder of time not subject to cap If physically outside U.S. for more than one year: Recapture unused time (not subject to cap); or File for new 6 years but subject to H-1B cap

18 What Happens when you Reach 6- year Cap? Is 6-years Really 6 Years? Recapture time spent abroad 2 ways to extend H-1B beyond 6 years I-140 or labor cert pending for more than 1 year (one-year increments) I-140 approved and cannot file I-485 application because of backlogs or retrogression (three-year increments)

19 Top 10 Myths About the H-1B Visa 1. No H-1B for small company or start-up 2. Must advertise H-1B position and show there is no qualified U.S. worker 3. Cannot change employer if H-1B cap reached 4. New 6-year period if change employers day grace period after lay-off If laid off, status terminates immediately 6. Cannot go to school part-time on H-1B 7. OK to file under MA cap before completing higher degree 8. Premium Processing locks in H-1B number 9. No one will check if you are actually working in the H-1B position. 10. File multiple H-1Bs with same employer to increase chances of selection

20 H-4 Spouses and Children No employment authorization Can go to school If H-4 spouse wants to work, apply for own visa

21 Other Nonimmigrant Visa Options Alternatives to H-1B Visas Free Trade Agreement Visas H-1B1 s for Chile and Singapore - There are still H-1B1s for Chileans and Singaporeans. TN NAFTA visas for Canadians and Mexicans Check TN Appendix 1603.D.1 Canadians apply at border, Mexicans apply at U.S. Embassy in Mexico E-3 visas for Australian professionals

22 H-1B Alternatives J-1 Visa for exchange visitors: (Intern, trainee, professor/research scholar) Trainee (12 or 18 mos.) - must have: A post-secondary degree or professional certificate from a foreign academic institution and at least one year of prior related work experience in the field outside the United States; OR Have five years of work experience outside the United States in the occupational field in which they are seeking training Intern (12 mos.) must: Be currently enrolled in and pursuing studies at a foreign degree- or certificate-granting post-secondary academic institution outside the United States; or Have graduated from a foreign institution no more than 12 months prior to their exchange visitor program start date.

23 H-1B Alternatives J-1 Professor/Research Scholar: University and research positions, academic appointments, short-term scholar. Beware: some J-1 visa holders are subject to 2 year home residency requirement upon completion of training Possible to apply for a waiver of this requirement. 30 day grace period at end of term as stated on DS H-3 trainee - Training not available in home country & will benefit your career abroad No productive employment unless incidental to training Have residence/job abroad once you are done w/ training

24 Other Nonimmigrant Visa Options L-1A Multinational Executive/Manager Visa or L-1B Specialized Knowledge One-year abroad at parent, affiliate or subsidiary as an executive, manager or specialized knowledge individual Must be coming to U.S. to fill executive, managerial or specialized knowledge position Based on corporate relationship of foreign entity and U.S. entity (parent, subsidiary, affiliate, etc.)

25 Other Nonimmigrant Visa Options New office L for new companies only good for 1 year. L-1A total of 7 years L-1B total of 5 years Spouses and children receive L-2 visa Spouses may apply for work permit unrestricted employment Fast-track green card (EB-13)

26 Other Nonimmigrant Visa Options E-1/E-2 Treaty Trade and Treaty Investor Visas for entrepreneurs/business. Must have treaty between U.S. and Treaty country (check Treaty Country list at At least 50% of company must be owned by Treaty country Can start-up company or buy company as E-1 or E-2

27 Other Nonimmigrant Visa Options E-1 Treaty Trader 50% trade must be between Treaty Country and U.S. Import-export E-2 Investor Visa Must make substantial investment Must be executive, manager or essential employee -- must have nationality of treaty country. (E.g. Company in U.S. is 50% Australian owned; can hire Australian under E visa) Spouses and children receive E-1/E-2 dependent visas Spouses can apply for work permit unrestricted employment

28 Other Nonimmigrant Visa Options O-1 Visas Extraordinary Ability Classifications: O-1A: Science, Education, Business or Athletics (and fashion models!) O-1B: Arts or Motion Picture/TV Arts (Artists, Musicians, VFX Artists, Graphic Designer, Dancer, Stylists, Art Director, Creative Director, Sound Engineer, etc.) Motion Picture/TV (Actors, Writers, Cinematographer, Directors, Producers, etc.) extraordinary achievement O-2 Visas Essential Support Personnel O-3 Visas Dependents (No work authorization)

29 O-1 Visa Standards O-1A (Business, Education, Science, Athletics): Extraordinary ability demonstrated by a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. O-1B (Arts): Distinction Extraordinary ability demonstrated by a high level of achievement in the field as evidenced by a degree of skill & recognition substantially above that ordinarily encountered. O-1B (Film/TV): Extraordinary achievement demonstrated by a very high level of accomplishment evidenced by a degree of skill/recognition significantly above that ordinarily encountered.

30 O-1 criteria and types of evidence: Lesser national or international prizes of awards, Major awards (including nominations) Membership in associations requiring outstanding achievements Press or Published materials or mainstream media written by others about the alien Participation, individually or on a panel, as the judge of the work of others Original contributions of major significance Authorship of books or articles Conference presentations Critical role for distinguished organizations or productions/events High compensation/salary Commercial success Display of work at exhibitions, film festivals Reference letters from prominent people in the industry (experts) Online evidence / press (music charts, IMDB printouts, etc.)

31 Job Search Tips Social networking sites School career services office Chamber of Commerce Local embassy/consulates Stronger candidate because of your international perspective foreign talent is a competitive advantage Cultural diversity in workforce is especially important in global economy

32 Immigrant Visa ( Green Card ) Options Green Card Lottery ( 50,000 green cards Registration period is October - November each year (CLOSED) No application fee Must be eligible to participate

33 Green Card Lottery Based on country of birth (not citizenship) Countries that are NOT eligible include: BANGLADESH, BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. Cross-charge to spouse s country of birth

34 Immigrant Visa ( Green Card ) Options Family Based Immigrant Visas Immediate Relative: spouse, parent, minor children of U.S. citizens Immediate benefits work permit and travel document within 2-3 months 6-8 month processing Conditional 2 year green card (marriage cases) Adult child must be 21 years old

35 Family Based Immigrant Visas continued... Unmarried Adult Children of U.S. citizens (F1) (7 year backlog) Spouse/Child of Legal Permanent Resident (LPR) (F2A) (2-3 year backlog) Unmarried adult children of LPR (F2B) (8 year backlog) Married adult children of U.S. citizens (F3) (11 year backlog) Brothers and sisters of U.S. citizens (F4) (12 year backlog) ***Check for most recent Visa Bulletin and dates

36 Immigrant Visa ( Green Card ) Options Employment Based Immigrant Visas (EB-1 through EB-5) EB-1 (First Preference) Aliens of Extraordinary Ability Outstanding Researchers/Professors Multinational Executives and Managers

37 Employment Based Immigrant Visas EB-2 (Second Preference) Advanced Degree Holders Masters or higher degree or foreign equivalent BA plus five years progressive experience Schedule A, Group II Alien of Exceptional Ability in Arts, Sciences or Performing Arts National Interest Waiver (NIW) EB-3 (Third Preference) Professionals with BA degree or foreign equivalent Skilled Workers with 2 years experience Other Workers

38 Immigrant Visa ( Green Card ) Options EB-2 vs. EB-3 why does it matter? Retrogression EB-2 vs. EB-3 processing times Backlogged countries: China and India

39 Process Step 1: PERM Labor Certification process USCIS and DOL Employer must conduct good faith recruitment efforts and show there is no qualified U.S. worker to do the job Step 2: I-140 Immigrant visa petition Step 3: I-485 Application to Adjust Status to Permanent Residence (AOS) Employment Authorization Document (EAD) Advance Parole travel document» Issued within days of filing AOS

40 Employment- Based All Chargeability Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd C 15 JAN08 01SEP04 C C 3rd 15MAR07 15NOV06 15NOV02 15MAR07 22AUG06 Priority Date (PD) = date of filing PERM application or filing of I- 140 Immigrant Visa Petition (or if family based, Form I-130) If retrogressed can t file I-485 AOS until PD is current Based on February 2013 Visa Bulletin (

41 PERM Issues Deciding between EB-2 and EB-3 NOT based on alien s educational background Based on actual minimum requirements for job Tricks that don t work: Tailoring minimum job requirements to your experience or education Foreign language requirements Generally cannot use employment experience gained with sponsoring employer Cannot use unauthorized employment

42 Common Green Card Issues When to Start Green Card Process 4.5 years into H-1B Make sure you like the employer and vice versa

43 Immigrant Visa ( Green Card ) Options EB-4 Religious Worker visas EB-5 Million Dollar Investor Green Card $500,000 in area of high unemployment Must create 10 jobs

44 Immigrant Visa ( Green Card ) Options EB-5 Regional Programs $500,000 in pre-approved program Pooled investment 3 step process I-526 Immigrant Petition by Alien Entrepreneur I Adjustment of Status Application 2 year conditional green card I-829 Removes conditional aspect of green card

45 Q & A Wolfsdorf immigration Law Group For follow-up questions: Fuji Whittenburg (fwhittenburg@wolfsdorf.com) VISA-LAW New York City Los Angeles Like us on Facebook Follow us on Twitter This presentation does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.