Employment Based Immigration Issues. Nelli Nikova Bracewell & Giuliani LLP [email protected]

Transcription

1 Employment Based Immigration Issues Nelli Nikova Bracewell & Giuliani LLP

2 Non-immigrant v. Immigrant visa Only for a specific petitioning employer For a limited duration of time Spouse and children may receive derivative status Beneficiary may not petition for independent immigration status of family members

3 May I apply for immigrant visa (green card) directly? Generally, the processing times for the immigrant visa are so long that beneficiary will require a non-immigrant visa Exceptions: EB-1 person with extraordinary abilities EB-1 Outstanding professor/researcher EB-2 Advanced degree or exceptional abilities AND NIW or Schedule A worker

4 Non-immigrant employment based visa options H-1B Specialty Occupation H-1B1 fast track for Chile and Singapore L-1A Manager/Executive Transferee TN Professional from Canada or Mexico E-3 Specialty Occupation Australia E-2 Investor or essential employee of investor

5 H-1B Non-immigrant visa Only for Specialty Occupations (position must require the equivalent of Bachelor's degree); Employer must match 100% of the prevailing wage for this position in the area of employment; Employee must satisfy the minimum requirements for the position Employee must satisfy the minimum requirements for the position (license, etc).

6 Specialty Occupation Bachelor's degree is normally the minimum requirement for the position Degree requirement is common in the industry in similar organizations Employer normally requires a degree The nature of the specific duties is so specialized and complex that knowledge required is usually associated with bachelor's degree

7 Cap Considerations 65,000 visas per fiscal year, plus additional 20, 000 for foreign nationals who earned master's or higher degree from a US institution of higher education; Timing of filing - on or close to April 1, for the October 1 begin date.

8 Cap exemptions Institution of higher education Non-profit institutions affiliated with institution of higher education Second or subsequent extension Non-profit research organization

9 Portability Aliens who have held H-1B status in the previous six years are not subject to the numeric cap Aliens who have maintained valid H-1B status with a prior employer may begin work for the new petitioning employer as soon as the new petition is filed (not necessarily approved).

10 Changes requiring the filing of new petition Successor company no new filing; Substantial changes in job duties, hours, work location require new filing.

11 Termination FMLA leave does not terminate the H-1B relationship Employer must notify the USCIS about the termination and offer return travel costs Immigration status is terminated (complications with change of status or extension of stay)

12 Duration Generally, the maximum duration of H-1B is six years. The H-1B may be extended beyond the six-year period if a labor certification for a green card has been pending for 365 days on the sixth year anniversary.

13 Processing time Regular processing of H-1B petitions may take three to six months. However, by applying premium processing (and paying an additional $1,000 premium processing fee), the employer may obtain a decision on its petition within fifteen calendar days.

14 Benefits of H-1B visa Does not require qualifying relationship with a foreign entity (prior employer); Available to nationals from all countries; Provides smooth transition to green card (allows dual intent).

15 Limitations/Considerations - H-1B Employer must pay 100% of the prevailing wage; Employer must offer return transportation costs in the event of termination; "Benching" is prohibited; USCIS filing fees, Fraud prevention fee and training fee must be paid directly by the employer; Spouses of H-1B cannot work.

16 Tax issues A "resident" of the United States is any citizen of a foreign country who (i) holds a US "green card" whether they actually reside within or without the territorial United States, (ii) meets the "substantial presence test" based on the number of days spent within the territorial United States, or (iii) makes an election to be classified as a resident of the United States for federal income tax purposes in the first year they move their residence to the territorial United States and certain other requirements are met.

17 Transition to green card H-1B is a "dual intent" visa The green card process may be initiated by a different employer EB-2 v. EB-3 filing for green card time considerations and business justification of requirements exceeding those considered normal for the occupation

18 When should I start the green card process? Employer must be willing to sponsor and be able to show ability to pay wages Job market considerations employer must be able to show inability to hire US worker meeting the minimum requirements for the position Lay offs in the last six months in the same or similar occupation employer must contact laid off workers Move to a new employer after the I-140 has been approved preserve the earlier priority date, but require new LCA Move to a new employer after the I-485 has been pending for 180 days may port to same or similar occupation with a new employer

19 Nelli Nikova