A BRIEF OVERVIEW OF EMPLOYMENT- BASED IMMIGRATION

Transcription

1 A BRIEF OVERVIEW OF EMPLOYMENT- BASED IMMIGRATION Oklahoma State University Friday, March 7, 2014 DISCLAIMER THESE SLIDES ARE FOR GENERAL INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE LEGAL ADVICE. PLEASE SEEK THE COUNSEL OF A REPUTABLE IMMIGRATION ATTORNEY AND/OR CONTACT YOUR EMPLOYER BEFORE ACTING UPON ANY INFORMATION LEARNED FROM THIS MEETING AND/OR THESE SLIDES. VISIT FOR A LIST OF IMMIGRATION ATTORNEYS IN YOUR AREA AND CONTACT YOUR EMPLOYER OR PROSPECTIVE EMPLOYER TO DETERMINE IF THE EMPLOYER HAS ALREADY SOUGHT THE ADVICE OF LEGAL COUNSEL FOR YOUR IMMIGRATION MATTER. IT IS NOT RECOMMENDED THAT YOU ACT ON YOUR OWN WITHOUT FIRST SEEKING THE COUNSEL OF AN ATTORNEY. 1

2 EB = EMPLOYMENT-BASED NONIMMIGRANT VISAS & IMMIGRANT VISAS The difference between immigrant visas and nonimmigrant visas The Progression of a Foreign National 1. Admittance to the U.S. May enter as one of dozens of nonimmigrant visa types School: F-1, J-1, etc. Work: H-1B, TN, L-1A/B, etc. 2. Post-Graduation Training Known as optional Practical Training (OPT) Usually granted for 1 year Can be extended for Cap Gap or STEM 3. Nonimmigrant Work Authorization Will most likely need the H-1B visa 4. Green Card Process (Adjustment of Status) 5. Naturalization 2

3 THE NONIMMIGRANT VISA Allows an individual to apply for temporary status What is a Nonimmigrant Visa? Nonimmigrant visas allow someone to enter the U.S on a temporary basis for pleasure, business, or, in limited circumstances, to engage in employment. Over 37 million nonimmigrant admissions to U.S. annually. Approx. 40 different nonimmigrant visa classifications, not including those for dependents and support staff. Examples Include: Diplomats and Government Officials = A Visa Business Visitors = B-1 Visa Tourist Visitors = B-2 Visa Crewman = D Visa Students = F-1 Full list: 3

4 Important Note #1 Visa vs. Status There is a difference between status and visa, despite the terms being used interchangeably. A Visa is a stamp placed in the passport by a U.S. Consular Officer outside the U.S. that serves to allow the foreign national to enter the U.S. Ability to enter the U.S. Status is the nonimmigrant classification one holds while within the U.S. and the privileges associated with that nonimmigrant classification. Ability to stay in the U.S. Visa v. Status Visa (found on visa stamp) Status (found on I-94 Card) 4

5 Important Note #2 The Doctrine of Dual Intent In general, the law requires that all nonimmigrants maintain an intent to return home at the expiration of their nonimmigrant status. When the nonimmigrant intent requirements are not present, we apply the doctrine of dual intent. Dual intent means an intention to immigrate at some time in the future while properly maintaining a nonimmigrant status in the present. F-1 Visa = Strict Nonimmigrant Intent Any evidence of intent to remain in the U.S. permanently, such as the filing of a green card application, may result in visa revocation. H-1B Visa = Dual Intent Allowed Evidence of intent to remain in the U.S. permanently will not affect the validity of the H-1B. Nonimmigrant Visas With so many nonimmigrant visa options available what are the three visa categories you, as students, are most likely to encounter: 1. F-1 (likely already in F-1 status) 2. OPT (technically still F-1 status) 3. H-1B (the gateway visa opens door to green card) 5

6 F-1 Students and OPT/CPT An F-1 Visa Holder is a Student An F-1 Student may seek an internship or employment as required by his or her curriculum or as a means to gain practical experience in the field. Two ways: Optional Practical Training Curricular Practical Training Glossary of F-1 Terms DSO: Designated School Official Usually an employee in the student s International Advisement Office. OPT: Optional Practical Training CPT: Curricular Practical Training EAD: Employment Authorization Document 6

7 Type One: Curricular Practical Training (CPT) Typically obtained by an internship offered by sponsoring employers via agreements between the employer and the student s university as required by the student s curriculum or to meet specific degree requirements. CPT is recommended by the student s academic advisor and authorized via his or her DSO. CPT is almost always taken during the school year while the student is in school. Type Two: Optional Practical Training (OPT) Temporary employment authorization granted by USCIS for practical training that is directly related to the student s major area of study OPT may be exercised during summer vacation, part-time throughout the normal academic year, post-completion of course requirements or post-completion of course study Generally taken post-completion Much more common than CPT. 7

8 Optional Practical Training Requirements Must be lawfully enrolled as full-time student for one academic year prior to grant May be employed anywhere by any employer but employment must be in field of study (see I-20) May also be self-employed (but be prepared to relinquish control and ownership of the company to get on the H-1B and apply for a green card) (must be 40 hours per week) Initial 12 months of employment authorization but may receive additional months if a qualified STEM graduate or eligible for cap gap. Optional Practical Training Requirements Continued Employer does not need to issue an offer letter Student must be working for employer or actively seeking employment. More than 90 days of unemployment may terminate F-1 status (120 days if it occurs in the 17 month STEM extension) Students may arrange for multiple, short-term employers such as performing artists and/or scientific projects (Work for Hire) Employment Allowed Unpaid employment allowed on the initial 12-month OPT via volunteer work or unpaid internships but must be at least 20 hours per week. 8

9 When to Apply for OPT? Student may apply for post-completion OPT with USCIS 90 days before degree completion date and up to 60 days after completion date. OPT Application Window Applying for OPT after graduation may result in lost time in OPT How is OPT Authorized? Post-completion of the degree program Undergraduate: last day of semester Graduate Student: defense date or last day of semester in which defense took place After completion of all course requirements for the degree, excluding thesis/dissertation Full-time (20+ hours per week) as pre-completion OPT during summer break allowed Part-time while school is in session (20 hours or less per week). Must maintain minimum enrollment as required by school. 9

10 Determining Start Date of OPT Employee OPT Student may not begin work on OPT until the EAD is in hand and the start date is current. Pre-completion OPT students must not work until USCIS has actually approved the application. Post-completion OPT may only begin after completion of program. Students are generally asked to provide a start date to the DSO. OPT validity period set forth on EAD and I-20. What do the EAD and I-20 Look Like? I-20 EAD 10

11 The OPT STEM Extension What is STEM? Academic Fields of Science, Technology, Engineering or Math 12 month limitation on OPT extended by 17 months for a total of 29 months for students who have completed STEM degree programs in the U.S. only. Employer must be signed up for E-Verify STEM Degrees STEM Degree May Include, but are not limited to: Actuarial Science Biological and Biomedical Sciences Medical Scientist (MS, PhD) Science Technologies Computer Science Applications Engineering Engineering Technologies Mathematics and Statistics 11

12 The OPT Cap Gap Extension What do H-1B cap-subject employers do when there is a gap between the student s OPT expiration and the start date of their H-1B? On April 8, 2008, USCIS indicated that all individuals who were drawn in the FY 2009 H-1B lottery and already working on OPT will be automatically granted an extension of OPT work authorization and lawful status in the U.S. Automatic Cap Gap every year now. Does not apply to cap-exempt employers like universities. H-1B Specialty Occupation The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in Specialty Occupations. The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor s degree or its equivalent as a minimum. 12

13 H-1B Specialty Occupation The foreign worker must possess at least a bachelor s degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer and any material change in employment usually requires the filing of a new H-1B (location, duties, significant salary increase, title, etc.). One may hold more than one H-1B at a time. One may attend school on H-1B. The dependent of the H-1B is the H-4. The H-4 cannot work but may attend school. H-1B Specialty Occupation Numerical Cap in H-1B Visas Each Fiscal Year: The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status each fiscal year. Excluded from the ceiling are all H-1B non-immigrants who work at (not necessarily for) universities and non-profit research facilities. This means that contractors working at, but not directly employed by the institutions may be exempt from the cap. This exemption is currently under attack by USCIS. Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master s or higher degree from U.S. universities from the cap on H-1B visas 13

14 H-1B Specialty Occupation Maximum Duration of Stay: The maximum duration of the H-1B visa is six years. H-1B holders who want to continue to work in the U.S. after six years, but who have not obtained permanent residency status, must remain outside of the U.S. for one year before reapplying for another H-1B visa. There are two exceptions to the six-year duration of the H-1B visa: 1. If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year increments until a decision has been rendered on their green card application 2. If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to visa unavailability, they may be entitled to a three-year extension. H-1B Specialty Occupation Timing Issues U.S. Citizenship & Immigration Services (USCIS) must approve petition before visa can be issued (visa processing can add several weeks) (PIMS) Current H-1B status holders (current Hs are not subject to annual quota) can begin work for new H-1B sponsor when petition is filed, if they have maintained status and not worked without authorization All new H-1Bs (straight out of school, hired from abroad, change of status L-1 to H-1B) are subject to the annual quota unless employer is exempt. 14

15 H-1B Common Questions When can one apply? Universities 180 days prior to start date so long as qualified (degree earned) Private/Cap-Subject Employers 180 days prior to start date April 1st deadline for Cap-Subject Employers Timed with release of visa numbers the beginning of each fiscal year Recruits with May graduate dates may be ineligible to apply as petition must be approvable at the time of filing. TN (NAFTA) Nonimmigrant Status What is it? Who is Eligible? What are the Application Requirements? Spouses and Children NAFTA Professional Job Series List (Appendix 1603.D.1) The List 15

16 What is It? Created as a part of the North American Free Trade Agreement (NAFTA). Allows citizens of Canada and Mexico to work in the United States so long as they meet strict professional occupation requirements. Set forth in The List. May not have the intent to remain in the United States permanently. No green card filing for TN. Must switch to H-1B before filing the green card application. The List and Where to Find It Too lengthy to add so please visit: x=343&mtpiid=147#ap1603.d.1 Which occupations on the list are relevant to Higher Education? 16

17 Who is Eligible? Citizen of either Mexico or Canada. The prospective occupation is on the The List (See Appendix 1603.D.1). Position is temporary; Position requires the NAFTA professional; Work is prearranged full-time or part-time employment for a U.S employer (self-sponsorship is not allowed); and Applicant meets the minimum qualifications for the position as set forth on The List. Canadians may apply at the border and do not need a visa Spouses and Children Spouses and children who accompanying or following to join TN visa holders may receive a derivative TD visa. Must demonstrate spousal or parent-child relationship to the principal TN. Children must be unmarried children under the age of 21. Dependents do not have to be citizens of Mexico or Canada. TD status does not carry work authorization but the TD dependent may study in the U.S. 17

18 Spouses and Children Canadian TDs do not need visas but must have the following documents at the port of entry: Proof of Canadian citizenship; Proof of relationship to the principal applicant, such as marriage certificate and birth certificate; and Photocopies of entry documents of the principal applicant. Mexican TDs must apply for TD nonimmigrant visas. THE IMMIGRANT VISA Allows an individual to apply for permanent residency 18

19 What is an Immigrant Visa? Strictly Defined: An immigrant visa is a document issued by a U.S. consular officer abroad that allows someone to travel to the United States and apply for admission as a legal permanent resident (LPR). It is a prerequisite to filing the Form I-485 based on employment, employer sponsorship, contribution to U.S. economy or safety and/ or well-being, etc. Loosely Defined: A visa that allows someone to apply for a green card. Immigrant Visas and the Visa Bulletin Approximately 140,000 employment-based immigrant visas Released every fiscal year (October 1 st ) Divided into five preference categories The preference categories have sub-categories Visa availability published on a visa bulletin Department of State publishes bulletin monthly Visa found online at 19

20 Immigrant Visas and the Visa Bulletin The Five Preference Categories: 1. First Preference (EB-1) = Priority Workers 2. Second Preference (EB-2) = Professionals Holding Advanced Degrees and Persons of Exceptional Ability 3. Third Preference (EB-3) = Skilled Workers, Professionals, and Unskilled Workers (Other Workers) 4. Fourth Preference (EB-4) = Certain Special Immigrants 5. Fifth Preference (EB-5) = Immigrant Investors Immigrant Visas and Visa Allocation How are the Visas Allocated? First: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. 40,000 visas Second: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. 40,000 visas Third: 28.6% of the worldwide level, plus any numbers not required by first and second preferences 40,000 visas Fourth: 7.1% of the worldwide level. 10,000 visas Fifth: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L ,000 visas 20

21 DOS Visa Bulletin for March 2014 Employment-Based Preference Categories EB-1 First Preference Priority Workers A First Preference applicant must be the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140) filed with USCIS. Labor Certification is not required. There are three sub-groups within this category: 1. Aliens of Extraordinary Ability 2. Outstanding Researchers and Professors 3. Multinational Executives and Managers 21

22 EB-1 First Preference Priority Workers Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Such applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have extraordinary ability. Such applicants can file their own Immigrant Petitions for Alien Worker, Form I-140, with the USCIS. EB-1 First Preference Priority Workers Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. Applicants in this category must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS. 22

23 EB-1 First Preference Priority Workers Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with USCIS. EB-2 Professionals Holding Advanced Degrees and Persons of Exceptional Ability A Second Preference applicant must generally have a labor certification approved by the Department of Labor. A job offer is required and the U.S. employer must file an Immigrant Petition for Alien Worker, Form I-140, on behalf of the applicant. Applicants may apply for an exemption, known as a National Interest Waiver, from the job offer and labor certification if the exemption would be in the national interest, in which case the applicant may file the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest. 23

24 EB-2 Professionals Holding Advanced Degrees and Persons of Exceptional Ability There are two subgroups within this category: 1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession. 2. Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. EB-3 - Skilled Workers, Professionals, and Unskilled Workers (Other Workers) A Third Preference applicant must have an approved Immigrant Petition for Alien Worker, Form I-140, filed by the prospective employer. All such workers generally require labor certification approved by the Department of Labor. 24

25 EB-3 - Skilled Workers, Professionals, and Unskilled Workers (Other Workers) There are three subgroups within this category: 1.Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal. 2.Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree. 3.Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal. EB-4 - Special Immigrants A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad (see number 3 below). Labor certification is not required for any of the Certain Special Immigrants subgroups. 25

26 EB-4 - Special Immigrants There are many subgroups within this category: Complete List Found at types_1323.html Some Notable Subgroups: a. Certain Iraqi and Afghan interpreters/translators b. Certain Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government c. Certain Foreign Medical Graduates (Adjustments Only) EB-5 Immigrant Investors A Fifth Preference applicant must file an Immigrant Petition by Alien Entrepreneur, Form I-526, with USCIS. Labor certification is not required for Immigrant Investors. To qualify as an Immigrant Investor, a foreign citizen must invest between U.S. $500,000 and $1,000,000, depending on the unemployment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent residents, or other lawful immigrants, not including the investor and his or her family. 26

27 To PERM or Not to PERM? The Majority of Foreign Nationals Who Navigate the Employment-Based Visa System Will Go Through PERM: EB-1 = No Labor Certification EB-2 National Interest Waiver = No Labor Certification EB-2 Professionals, Skilled Workers and Unskilled Workers = Labor Certification ( Three Step Process ) EB-3 = Labor Certification ( Three Step Process ) EB-4 = No Labor Certification EB-5 = No Labor Certification The Three Step Process Nearly every one of you will be a PERM-based Green Card and will go through a three step process: Step 1: Alien Labor Certification (PERM Form 9089) -- Filed with Department of Labor Step 2: Immigrant Petition (Form I-140, I-526, or I-360) -- Filed with USCIS Step 3: Green Card Application (I-485 or DS Form) -- Filed with USCIS or via Consular Processing with Department of State 27

28 What is PERM? The PERM Process is a Test of the Labor Market established by DOL. It seeks to probe the local and U.S. labor markets to answer the question: Is there a U.S. worker who is able, willing, available and minimally qualified? The Permanent Offer of Employment Employer may only sponsor a foreign national under the PERM process if the underlying job position is permanent Permanent does not mean a guarantee of lifetime employment The offer is prospective. It is an offer to perform specific duties in the future that requires specific qualifications in the form of education and experience Permanent means a position with an indefinite duration that the parties expect to continue into the future No definite ending date 28

29 How Employers Administer a PERM Special Handling or Traditional Recruitment? A PERM filed on behalf of a college or university teacher that was hired via a competitive recruitment process may be based on previously completed recruitment materials, rather than new recruitment as under normal PERM cases, so long as the offer was not more than 18 months prior to the filing of the PERM and at least one ad was used in a national professional journal. HR staff should fully understand the time and cost saving superpowers of the Special Handling PERM. How Employers Administer a PERM Special Handling PERM 1. Copy of the offer letter and alien s credentials. 2. Copy of the search committee report outlining full recruitment and why foreign national is more qualified than every other applicant 3. Copy of the final report from the faculty making the hiring decision 4. Copy of at least one advertisement for the job placed in a printed national professional journal (must include name of journal and date(s) of publication) or proof the advertisement was run in an electronic or web-based national professional journal if the journal s job listings are viewable to the public without payment of subscription and/or membership charges. The ad must have been posted for at least 30 calendar days Must include evidence of the start and end dates of the advertisement placement and the text of the advertisement (via screenshots). 29

30 How Employers Administer a PERM Special Handling PERM continued 5. Documentation of any other recruitment efforts, including copies of letters sent to other institutions or professional colleagues, postings on electronic bulletin boards or any other locations, internet postings, etc. The Department must demonstrate that a good faith recruitment effort was made to locate qualified U.S. workers for the position. 6. Statement of the Foreign National s Qualifications and Achievements. This should be a separate document prepared by the University. It is a detailed summary of the teacher s achievements and qualifications. This can be prepared by gathering the alien s transcripts, diplomas, credentials evaluations, job experience letters, and c.v. to create a short but detailed summary. DOL has not set forth a minimum or maximum amount of detail to be used when drafting this How Employers Administer a PERM Traditional PERM Recruitment - The Basic Steps: Develop job description and determine minimum education and/or experience requirements to be set out in recruitment Are the requirements normal for the type of occupation? Specific Vocational Preparation (SVP Levels) and Business Necessity Draft advertisement language and postings under attorney direction Obtain the prevailing wage through NPWC Good for 90 days to one year, depending on issuing officer. Register employing entity with DOL Recruitment (designed by attorney) for approximately 75 to 90 days Job Order with SWA Notice of Filing Two Sunday Advertisements 3 of 10 Alternative Recruitment Methods 30

31 How Employers Administer a PERM Employer interviews potentially qualified applicants Send certified mail letters to all potentially qualified candidates informing them to call for a phone interview. Document qualifications of all candidates compared to minimum qualifications set forth in recruitment Compile all evidence of recruitment tear sheets, postings, screen shots, etc. Employer prepares recruitment report (template provided) How Employers Administer a PERM Attorney and Employer review all pertinent dates and recruitment to ensure compliance with strict DOL regulations Prepare PERM application and forward to employer and alien for review, approval and signature Audit package prepared and maintained Post-Filing: Approval, Audit or Denial If approved, proceed to I-140 If denied, consider Motion to Reopen or Reconsider and/or BALCA appeal If audited, respond completely and timely to all issues 31

32 The PERM Process Targeted and random audits: Exceeding industry norms Foreign language requirements Improper completion of form Typographical error Improper use of advertising language Improper alternative requirements Random computer selection EB-3 Professionals Usually there is a significant priority date backlog for all countries in the EB-3 category. Some EB-3 categories are now currently more available than EB-2 but this is not expected to last very long. If your case is filed under EB-2, you may also be able later file an EB-3 without having to file a new I-140. You should not run out of H-1B so long as the PERM is filed prior to the end of your 5 th year of H-1B status You can change jobs later and switch to EB-2 while maintaining the earlier priority date from the EB-2 Requires new PERM and I

33 Matthew D. Stump Matthew D. Stump focuses his practice on employmentbased nonimmigrant and immigrant business visa issues, I-9 and corporate compliance and federal mandamus litigation. Matthew has extensive experience counseling both small and large multinational corporations, universities, government agencies, non-profits, and many other employers on obtaining H, E, L, O, P, R, and TN nonimmigrant visas, and procuring green cards under the extraordinary ability, outstanding researcher, multinational manager, and National Interest Waiver categories. He is an expert on advising clients on Alien Labor Certification (PERM processing). Matthew serves as Vice-Chair of the U.S. Department of Homeland Security Vermont Service Center Liaison Committee for the American Immigration Lawyers Association (AILA). He previously served on AILA s National Distance Learning Committee served four terms as the AILA Liaison to the Oklahoma City Sub-Office of the U.S. Citizenship and Immigration Services. He is frequently asked to serve as a CLE discussion panelists for conferences in the U.S. and Mexico. Contact Information Matthew D. Stump Stump & Associates, P.C Waterford Boulevard, Suite 222 Oklahoma City, OK (405) mstump@usvisagroup.com 33