The Basics: Advising Students who want to stay in the US. Respecting the Regs vs. Helping Your Students

Transcription

1 Whatever Happened to Nonimmigrant Intent? Advising International Students on Post Graduate Options The Basics: Advising Students who want to stay in the US 4 Aaron M. Blumberg Associate Fragomen, Del Rey, Bernsen & Loewy, LLP One Alhambra Plaza Suite 600 Coral Gables, Florida Telephone: (305) E Mail: ablumberg@fragomen.com 2 Respecting the Regs vs. Helping Your Students F 1 and J 1 are single intent/nonimmigrant visas ARO/RO/DSO/PDSO role is not to help students stay in the US but to protect the integrity of the school and the visa program In reality, we all know many students want to stay in the US and we want to help our students; the question is, what can we legally do? Once they apply for H 1B/GC they must rely on attorney, employer for assistance on those matters, not DSO 5 Purpose of this Presentation 1. Give you basic knowledge of the IV/NIV processes 2. Help you understand the interplay between J 1/F 1 status and H 1B/GC applications 3. Understand when you can and cannot advise/help students 4. Understand how certain actions may impact SEVIS record 3 General Advice for Students Seeking Visa Sponsorship Save OPT for after you graduate Students always want to grow up quicker and quicker and want that H 1B Best to utilize as much OPT as possible, but also depends on when OPT expires and how it interplays with H 1B cap Take advantage of CPT experience to build resume Don t delay, ask employer to start H 1B process as soon as possible; March 1 is the absolute cut off date Student must learn to look out for themselves; employer will not know! 6 1

2 General Advice for Ph.D. Students Publish and present work at conferences in your own name or collaboratively with Advisor/PI Review journal articles in your own name as soon as possible Make connections with other scholars at conferences for potential recommendation letters For Your Information: NIV Basics 7 10 Educate Employers Many employers may not understand that they can hire foreign students Educate them on OPT/CPT/Academic Training/Cap Gap For more complex issues, refer employers to an immigration attorney J 1 Two Year Home Residence Req Some J s must return to home country for 2 years after completion of program or seek waiver of this requirement 3 ways to be made subject: skills list government funding graduate medical education If you are subject, you are not eligible for: An immigrant visa or for adjustment of status An H or L visa Changing nonimmigrant status within the US from J to any other category (except A/G) 8 11 Beware the Almighty Internet! What Can You Do if You are Subject to 212(e)?? Depart the country and return to the US on an F (student) or O (extraordinary ability) visa; Note: 212(e) still applies Serve the 2 years In country of nationality or last legal permanent residence for an aggregate of 2 years Apply for a waiver Get an Advisory Opinion first!

3 How Do I Get a Waiver?? File DS 3035 with DOS along with a $215 filing fee Types of Waivers Available: No Objection (usually not for US govn $) Interested Government Agency (IGA) HHS, DOD, DOE, NASA, NSF Exceptional Hardship Fear of Persecution H 1B Specialty Occupation Entry level requirement = minimum Bachelor Degree or equivalent Six year maximum stay (can extend under certain circumstances AC 21); 3 year increments 65,000 annual ceiling, of which 6,800 are set aside for citizens of Chile and Singapore 20,000 additional visas allocated to holders of advanced degrees from U.S. universities Cap Subject vs. Cap Exempt Cap Subject: File on 4/1 for a start date of 10/1 Cap Exempt: File at any time How to Advise J 1 Student Seeking a Waiver? Provide basic information about why they are subject and what it means Discuss advisory opinion if you or they think 212e is a mistake You can refer them to an attorney or to DOS website for more information about waiver application H 1B Continued H 1B tied to employer Concurrent (Dual) H 1B possible H 1B can be part time or full time Find out who sponsors H 1Bs: What are the government fees? ($325, $500, $750/$1500); What are standard legal fees? Reasonable costs of return transportation for dismissed employee No grace period; once you stop working you must leave Spouse and children (H 4) not eligible to work Wage Concerns: Employer must pay prevailing wage Business (Work) Visas Options Intracompany transferees (L 1) Treaty Traders and Investors (E 1 & E 2) Workers of Extraordinary Ability (O 1) Students on Practical Training (F 1 & J 1) Exchange Visitors (J 1) Most common work visas (H 1B, H1 B1, E 3, TN) Advice to Students Applying for H 1B No international travel while OPT to H 1B pending AND if they must travel, probably cannot re enter until September 20 th at earliest, with H visa Graduating in May will make things easier for gap cap extensions Having a US advanced degree will make it easier to get an H 1B in the event of a lottery

4 Cap Gap Automatic Extension Automatic Extension of your OPT work authorization to September 30 th : This happens if your approved OPT end date (on your EAD card) is April 1st, 2014 or later. For example: if your OPT ended on or before March 31st, you would not be eligible for extension of work authorization until September 30th, However, you would be allowed to stay in the US if you otherwise maintain your status. Extension of your F 1 duration of status. This happens if your OPT had expired before April 1st, Again, you would be allowed to stay in the US if you otherwise maintain your F 1 status, but you are not authorized to work until the H 1b petition is approved and goes into effect October 1st, Eligibility: H 1B petition has been timely filed (within the acceptance period) Requests an employment start date of October 1st Requests a change of status When SEVIS is not Updated Perhaps the H 1B was filed but not yet receipted by USCIS or it was receipted but never updated in SEVIS If H 1B is filed but not yet receipted and the F 1 OPT expires before June 1 st, then DSO must update SEVIS, and then OPT is automatically extended until June 1 st. If H 1B is receipted and/or approved but not updated in SEVIS, then you must seek a data fix from SEVP Cap Gap What if H 1B Loses Lottery? 90 days of unemployment still applies during cap gap period Cap Gap ends immediately upon H 1B rejection or denial Beware of international travel during the cap gap! No Cap Gap for Cap Exempt Employers (University s) Work for a University (no cap) E 3/TN/H1 B1 Back to school on F 1 Apply for NIW or EB 1 GC (usually for Ph.D.s or any extraordinary individual) DSO role in Cap Gap During cap gap, the student is still on an F 1 and must still report any updates/changes to DSO (ie address change) SEVIS should be updated automatically upon an F 1 being sponsored for an H 1B E 3 Visa for Australian Nationals Visa category for citizens of Australia to take up professional positions in the U.S. 10,500 per year available Job offered must be for a specialty occupation as defined for H 1B visa category Requires certified LCA Visas can be applied for at consulates without prior USCIS approval Filings can be submitted to USCIS, but premium processing is not available 2 year validity; renewable indefinitely Dependent spouses may apply for employment authorization No 240 day rule; no portability; no premium processing

5 TN Category for Canadian and Mexican Professionals Must be nationals of either Canada or Mexico Coming to U.S. to work in profession listed on NAFTA schedule Generally require a Bachelors degree in field Canadians apply at border (non national dependents must obtain visa at U.S. Consulate) Mexicans apply at Consulate Three year increments, renewable indefinitely Extensions and changes of status may be filed at USCIS Service Center How to Get a Green Card 1. Family 2. Work 3. Diversity Lottery 4. Asylum 5. Special Legislation Special Legislation For Your Information: IV Basics Immigrants Green card holders = permanent residents = immigrants Coming to U.S. permanently Numerically limited Visa bulletin Priority date Can become U.S. citizens after 3 5 years Diversity Lottery 50,000 green cards given out each year (about 14 million applicants); usually apply sometime in October of each year Odds of winning the Powerball jackpot? 1 in 195,249,054 Who is NOT eligible? Persons BORN in: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, 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

6 How to Advise Students on DV Lottery Entering lottery is NOT filing for an immigrant visa If selected for lottery, student should consult an attorney and not travel yet Even if selected, may not get GC How to Advise Students Who are Sponsored for GC by Family Travel (applying for F 1/J 1 visa) can be risky Look at wait times before filing to see if its worth it (see Philippines siblings) Remember, filing of I 130 alone does not provide legal status (must file I 130 and I 485) If falling out of status, only being sponsored by USC spouse, USC child over 21 or USC parent (if under 21) will allow you to file I 130 and I 485 concurrently and stay in status Family Based Permanent Residence Immediate relatives (spouses, minor children & parents of U.S. citizens) Other close family members of citizens or permanent residents, including: 1. Unmarried sons & daughters of citizens (over age 21) 2. Spouses & children of LPRs (2A) & unmarried sons/daughters of LPRs (2B) 3. Married sons & daughters of citizens 4. Brothers & sisters of citizens Marrying LPR or USC If you marry a LPR and file for a green card, only I 130 can be filed If you marry USC, you can immediately file I 130/I 485 and get EAD/AP in 90 days and have interview in 6 months Advice for Students: As long as you married for love, you should have nothing to worry about, but its always best to seek the advice of an attorney Is an Attorney needed? Usually not, but its never a bad idea February 2014 Family Bulletin Employment Based Categories All Charge ability Family Sponsored CHINA mainland Areas Except INDIA MEXICO PHILIPPINES born Those Listed F1 01 Jan Jan Jan Oct Aug 01 F2A 08 Sep Sep Sep Sep Sep 13 F2B 08 Jul Jul Jul May May 03 F3 15 May May May Jun feb 93 F4 22 Oct Oct Oct Nov Aug 90 EB 1: EB 2: EB 3: EB 4: EB 5: Priority Workers Advance degree professionals & aliens of exceptional ability* Professional, skilled & unskilled workers* (* labor certification required) Special Immigrants Employment Creation (Investors)

7 February 2014 Employment Bulletin All Chargeability Areas Employment- Based CHINA- mainland born INDIA MEXICO PHILIPPINES Except Those Listed 1st C C C C C 2nd C 08 Jan Nov 04 C C 3rd 01 Jun Jun Sep Jun Apr 07 Other Workers 01 Jun Jun Sep Jun Apr 07 4th C C C C C Certain Religious Workers C C C C C 5th Targeted Employment Areas/ C C C C C Regional Centers and Pilot Programs 37 EB 2 National Interest Waiver Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national interest. Those seeking a national interest waiver may self petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I 140, Petition for Alien Worker. Good category for Post Docs Does not require employer sponsorship 40 EB 1 vs. EB 2 vs. EB 3 EB 3: Jobs that require a Bachelor s degree EB 2: Jobs that require an advanced degree EB 1: Priority workers (no labor certification) Persons of extraordinary ability (similar to the O 1 nonimmigrant category) Outstanding professors & researchers Multinational executives/managers Advising J 1/F 1s on EB GC s Always recommend getting an H 1B or L 1 (dual intent visas) before filing for a GC (limited exceptions include strong EB 1/EB 2 NIW filings; being sponsored by an immediate family member) Having an advanced degree can greatly reduce wait times Employers never required to sponsor employee for GC Employment Based Permanent Residence: 2/3 Step Process Labor certification (where required) Filed by employer on behalf of foreign national Processed under PERM system Immigrant preference petition Filed by employer Processed by USCIS Adjustment of status or consular processing Filed by the foreign national & family members F 1/J 1 Travel with Pending GC Travel issues can be quite complex, they MUST consult with their GC attorney Once I 485 is filed, no travel until AP received Recommend that students change to H 1b (if possible) and then file for GC (this permits travel while GC pending)

8 SEVIS Record with Pending GC Arguable whether F 1/J 1 is maintaining status when I 485 is pending Recommend keeping SEVIS record active as long as F 1/J 1 status is maintained (notwithstanding pending I 485) until individual receives GC Maintaining F 1/J 1 status gives you a backup plan in case something goes wrong with GC case What happens if you work on EAD or travel on AP? 43 What s up in Congress? Comprehensive Immigration Reform in 2014? 2015? Ever? Dream Act? STEM Bill? Dual Intent for F 1s? Help entrepreneurs? 44 Fragomen.com 45 8