Life After OPT: Work Visa Options

Transcription

1 Life After OPT: Work Visa Options Wolfsdorf Immigration Law Group Cliff Rosenthal, Esq. Attorney at Law VISA-LAW nd Street Santa Monica, CA 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.

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 for?

3 STEM OPT 17-Month Extension of OPT (total of 29 months) STEM students (Science, Technology, Engineering, Mathematics) 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 that OPT is based on

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

5 OPT (continued) Don t forget to apply 90 days prior to program end date; or 60 days after program end date Apply even if you plan to return home after graduation Use it as a stepping stone 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 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

8 Cap-exempt organizations i.e. employer is not subject to the H-1B cap 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

9 H-1B Government Filing Fees Training fee $1,500 for employers with 26 or more employees $750 for employers with 25 or fewer employees All new H-1B s, change-of-employer and first extension Private industry only; cap-exempt organizations do not pay training fee Fraud fee of $500 All new H-1B s and change of employer petitions Not required for extensions All must pay (private industry and cap-exempt organizations) Regular filing fee $325; $290 for derivatives Premium processing (Optional): $1,225

10 H-1B Professional Occupation Visas Employer-specific Part-time or full time Concurrent H-1B for multiple employers 6 year maximum; granted in 3 year increments At-will employment

11 H-1B 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) Portability allows commencement of new job upon filing of new petition no need to wait for approval

12 H-1B Portability Cap-exempt H-1B to cap-subject employer (university to private industry) Subject to H-1B cap (never been counted)

13 Other H-1B Scenarios 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

14 H-1B Process Agencies involved: USCIS and Department of Labor (DOL) Department of Labor steps: 1. Verify Federal Employer Identification Number (EIN) 2. Labor Condition Application (LCA) must post LCA at worksite for 10 consecutive business days in two conspicuous locations LCA attestations include» Must pay higher of prevailing wage and actual wage required wage» Payment cannot include discretionary bonuses, commissions, benefits, 401(k) Must offer same benefits as offered to U.S. workers No strike at workplace Must keep Public Access File Submit LCA to DOL online

15 H-1B Process USCIS steps Submit application via mail to USCIS Support Letter with job description Forms I-129, I-129 H, I-129 Data Form Government Filing Fees Training fee ($1,500/$750) must be paid by the employer

16 Employer Responsibilities Termination must offer reasonable costs of transportation home must notify USCIS No benching

17 Who is Responsible for all the Fees? Training fee must be paid by employer Fraud fee and other govt. filing fees can 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 REQUIRED WAGE E.g. Required 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?

18 H-1B Audits Increase in fraud investigations and worksite visits USCIS hired 1,500 investigators to conduct 25,000 worksite visits

19 Timing Issues When to File H-1B March madness: since October 1, 2003 File April 1, but October 1 start date file ASAP! FY 2010 cap reached December 21, 2009 FY cap reached January 27, 2011 H-1B computer generated lottery

20 H-1B Cap-Gap Relief Applies to all F-1 OPT students who file H- 1B petition during acceptance period (on or after April 1) If file H-1B petition on or after April 1 F-1 status automatically extended OPT (employment authorization) automatically extended

21 F-1/H-1B Cap-Gap Relief Graduation June 2011 OPT starts July 2011 File H-1B April 1, 2012 OPT ends July 2012 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! If not selected, cap-gap relief ends upon rejection, denial or revocation (60 day grace period from notification)

22 Top 10 Myths About the H-1B Visa 1. OK to file under masters cap before completing higher degree 2. E-filing will lock in H-1B number 3. Premium Processing locks in H-1B number 4. File multiple H-1Bs with same employer to increase chances of selection 5. No H-1B for small company or start-up 6. Must advertise H-1B position and show there is no qualified U.S. worker 7. Cannot change employer if H-1B cap reached 8. New 6-year period if change employers day grace period after lay-off If laid off, status terminates immediately 10. Cannot go to school part-time on H-1B

23 H-1B Professional Occupation Visa 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 Green card application 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)

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

25 Other Nonimmigrant Visa Options Alternatives to H-1B Visas Free Trade Agreement Visas H-1B1 s for Chile and Singapore TN NAFTA visas for Canadians and Mexicans E-3 visas for Australian professionals

26 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

27 L-1A/L-1B Visa 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-1)

28 Other Nonimmigrant Visa Options E-1/E-2 Treaty Trade and Treaty Investor Visas Must have treaty between U.S. and Treaty country At least 50% of company must be owned by Treaty country

29 E-1/E-2 Visa E-1 Treaty Trader 50% trade must be between Treaty Country and U.S. E-2 Investor Visa Must make substantial investment Can start-up company or buy company as E-1 or E-2 Category for E-2 employees Foreign national must have nationality of Treaty Country E.g. Company in U.S. is 50% Australian owned; can hire Australian under E visa Must be executive, manager or essential employee

30 E-1/E-2 Visa Spouses and children receive E-1/E-2 Spouses can apply for work permit unrestricted employment

31 O-1 Alien of Extraordinary Ability Sciences, education, athletics, business, arts, motion pictures and television Lower standard for arts, motion pictures and television Major award Lesser national or international prizes of awards Membership in associations requiring outstanding achievements 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

32 Other NIV Options R-1 Religious Worker J-1 Visa Intern or Trainee Requires foreign degree and/or experience

33 Immigrant Visa ( Green Card ) Options Green Card Lottery ( 50,000 green cards Registration period October/part of November No application fee Must be eligible to participate

34 Green Card Lottery Based on country of birth (not citizenship) Countries that are NOT eligible include: Brazil, Canada, P.R. China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and Vietnam Cross-charge to spouse s country of birth?

35 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

36 Family Based Immigrant Visas continued... Unmarried Adult Children of U.S. citizens (F1) (6 year backlog) Spouse/Children of Legal Permanent Resident (LPR) (F2A) (4-5 year backlog) Unmarried adult children of LPR (F2B) (9 year backlog) Married adult children of U.S. citizens (F3) (9 year backlog) Brothers and sisters of U.S. citizens (F4) (11 year backlog)

37 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

38 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

39 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

40 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» Both issued within days of filing AOS

41 Priority Date (PD) = date of filing PERM application or filing of I-140 Immigrant Visa Petition If retrogressed cannot file I-485 AOS until PD is current Visa Bulletin (

42 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

43 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

44 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

45 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

46 Q & A Please use your Chat function to ask questions A copy of the PowerPoint presentation and informational materials will be sent to you shortly For follow-up questions: Cliff Rosenthal, Esq. [email protected] or Daniel Manuel, Academic Services Coordinator [email protected] Wolfsdorf Immigration Law Group VISA-LAW nd Street Santa Monica, CA 90401