IMMIGRATION OPTIONS AFTER F-1/OPT Matthew J. Martinez, Esq. Kathy Bunch Immigration Paralegal

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IMMIGRATION OPTIONSAFTER F-1/OPTMatthew
J. Martinez, Esq.Kathy BunchImmigration
Paralegal
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Basic Concepts of a Nonimmigrant Visa
Permission to enter the U.S. (compare with
status) No guarantee of issuance (State Dept.)
nor admission (CBP) I-94 card controls terms
of stay and evidences status Must have
non-immigrant intent (some allow dual intent)
Employer specific no freelancing
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Nonimmigrant Visa Procedural Issues
Preparation of NIV petition (generally need USCIS
approval) Job description, salary,
resume, educational credentials Evidence
of prior status, maintenance of status Filed
with the appropriate agency (USCIS VSC or CSC
consular post border) Regular vs. premium
processing Visa or COS Can remain in U.S.
with new employer, apply for new visa on next
trip abroad Petitions can be filed 6 months
before start of employment
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F-1 Post-Completion OPT Training directly
related to students major field of
study/degree Apply up to 90 days before
graduation and up to 60 days after
graduation 12 months granted initially STEM
extensions for additional 17 months H-1B
Cap-Gap Extension Unemployment time
limitation during OPT Reporting requirements
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H1-B Temporary Professional Workers For
professional workers coming to work for a U.S.
employer in a specialty occupation Ex
chemist, biologist, engineer, physicist, software
developer, systems analyst, accountant,
economist, architect Generally valid for total
of 6 years (each petition max of 3) Dual intent
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The H-1B Cap Numerically limited 65,000
annually Additional 20,000 for holders of U.S.
advanced degrees Exception Extensions, change
of employer, exempt employers (universities,
non-profits affiliated with universities,
research organizations) Options for
Singaporeans, Chileans, Australians, Canadians,
and Mexicans discussed later
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H-1B Criteria Specialty Occupation position
which requires specialized body of knowledge
(i.e., at least baccalaureate degree (or
equivalent) in a particular field of study)
Qualified beneficiary must have that degree or
equivalent Degree must be in field of study
relevant to occupation
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H-1B Process Must file Form ETA-9035, Labor
Condition Application (LCA) (not Form ETA-9089
Labor Certification Application) No labor
market test or need to prove U.S. worker
shortage Employer must pay prevailing wage
as determined by DOL File I-129
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H-1B Visas Material changes in employer or
position may necessitate amended or new
petition Return transportation cost
Regulations governing who pays legal fees and
costs associated with H-1B - Employer filing
fees - Employee legal fees - Cannot reduce
wage below prevailing wage
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H-1B Visas Portability H-1B worker
allowed to start with new employer upon filing
new H-1B petition Must have
bona fide offer of employment Individual
must have been previously granted H-1B status
and must not have engaged in any
unauthorized employment Not subject to
cap
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H-1B VisasSpecial Provisions Extensions
beyond 6 years (AC-21) If labor
certification or I-140 was filed more than 365
days ago, H-1B worker may get extensions
in 1-year increments If I-140 has been
approved and immigrant visa number
unavailable, H-1B worker may get extensions in
3-year increments Recapturing
time abroad allowed
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H-1B1 Chile Singapore 5,400 visas available
for Singapore 1,400 for Chilean nationals
Specialty Occupation standard LCA required
Valid for 1 year, no limit on extensions
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H-3 Trainees Employed as trainee for up to 24
months Training must not be available
abroad Must benefit employer (intend to employ
abroad or establish a contact) Must have a
training program Must not be over or under
qualified for the training
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L-1 Intracompany Transferees Allows
multinational companies to transfer key employees
to related entities in the U.S. May be used
to transfer managers/executives (L-1As) and
individuals with specialized knowledge (L-1Bs)
who have worked for the company abroad for one
of the prior three years L-2 spouse may obtain
unrestricted work authorization
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TN (NAFTA) Status NAFTA provides a list of
professions A Mexican or Canadian national in
a listed profession may enter the U.S. for
three years to work for a U.S. employer in that
profession Includes Architects
Accountants Systems Analysts Engineers
Lawyers Scientists in most disciplines
Graphic Artists Management Consultants
Hotel Managers Professors Others
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TN or NAFTA Status Canadian nationalsborder
adjudication (Canadians are visa-exempt)
Mexican nationals apply at consular posts May
also file petitions if in the U.S. TNs must
have temporary, nonimmigrant intent (but filing
I-140 not a bar to extension) No prevailing
wage requirement Need relevant degree -
experience relevant for Management Consultant,
Scientific Technician
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E-3 Australians For professional workers
coming to work for a U.S. employer in a
specialty occupation Applies only to
nationals of Australia Spouses and children
may be of any nationality spouses may apply
for EAD Apply directly at consular post (can
apply outside of Australia) Employer must
obtain LCA from DOL 24-month maximum validity
(can be renewed) Numerically limited 10,500
annually
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E Visa Treaty Investor/Trader Visas Can be
investor or employee of investor Investment
must be substantial (100,000 is a good
benchmark) U.S. company must have nationality
of a treaty country Employee must be a
national of the same treaty country Employee
must be engaged in managerial duties or have
essential skills E visas granted for an
initial period of up to 5 years extensions are
available (petitions granted 2 years) Spouses
may apply for employment authorization
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O Visas Outstanding Individuals For
individuals with extraordinary ability Small
percentage who have risen to the very top in
their fields International recognition, three
types of evidence of extraordinary
achievements Valid for an initial three years,
extendable in one year increments
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P Visas Athletes, Artists Entertainers P-1
Internationally recognized athlete (coming to
perform individually or part of a team) P-2
Artist or Entertainer (coming to perform
individually or as part of a group) P-3
Artist or Entertainer coming to perform, teach or
coach in a culturally unique program
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Final Points on NIVs Nothing is guaranteed
Expect delays Petition approvals may be
delayed by RFEs Visa issuance subject to
delays for appointments, background checks and
other issues Dont assume that visa issuance
will be a quick trip plan ahead Delays in
other areas SSNs, drivers licenses
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• Employment Based Permanent Immigration
• Most classifications have built-in protections
  for American labor.
• Generally requires strong showing that the
  foreign worker is one of the best in the field or
  that there are no qualified United States workers
  available to fill the position.
• If the latter applies, DOL must make a
  determination and certify that there are not
  sufficient United States workers who are able,
  willing, qualified, and available for the
  position being offered, and that the employment
  of the foreign worker will not adversely affect
  the wages and working conditions of United States
  workers similarly employed
• This processes is called Labor Certification
  PERM (Program Electronic Review Management
  process ). Takes at least 6 months.

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• Employment Based (EB) Preferences
• EB-1 Priority Workers No PERM
• EB-2 Advanced-Degree Exceptional Ability
  PERM
• EB-3 Professional, Skilled and Other Worker -
  PERM
• The preference for which you qualify determines
  how long it will take to obtain legal permanent
  residence status.
• Typically no wait for first preference.
  Generally, it takes a person with a third
  preference approval longer to immigrate than a
  person with a second preference approval.

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• EB-1 First Preference
• These categories avoid Labor Certification all
  together
• Individuals of extraordinary ability
• Outstanding professors and researchers
• Individuals who are multinational managers or
  executives.
• I-140 / I-485 concurrent filing if visa number
  available

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• EB-1 First Preference
• Extraordinary Ability
• Must be seeking to enter U.S. in the sciences, ed
  ucation, business or athletics
• Must be able to demonstrate sustained national or
   international acclaim
• Evidence of a one-time receipt of a major
  international award (such as a Nobel Prize) or
  the evidence listed below to show that you are
  one of the few to have risen to the top of your
  field
• Receipt of lesser national or international
  awards
• Membership in associations that require
  outstanding achievements of their members as
  judged by national or international experts
• Published material about you in professional or
  trade publications or major media
• Evidence that you have judged the work of others
  in your field
• Evidence of original scholarly contributions to
  your field
• Evidence of scholarly articles written by you
  about your field and published in trade journals
  or other major publications

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• EB-1 First Preference
• Outstanding Researcher/Professor
• Outstanding international reputation as a
  researcher or professor and that you have at
  least three years research experience.
• Employer must be either a university or a
  private organization that has at least three
  full-time research positions.
• No self-petitions need employer.
• Evidentiary Requirements
• 1) Receipt of major prizes or awards
• 2) Membership in associations which require outsta
  nding achievements
• 3) Published material about the FNs
  work in professional or major trade 
• publications
• 4) Participation as editor/judge of work of others
  
• 5) Original scientific contributions of major sign
  ificance in the field and/or
• 6) Authorship of scholarly books/articles (in scho
  larly journals with international 
• circulation.

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• EB-1 First Preference
• Multinational Managers/Executives
• Similar to nonimmigrant L-1A visa regulations.
• The prospective U.S. employer is the same employe
  r or a subsidiary, affiliate, or other legal entit
  y related to the FNs overseas employer 
• In 3 years preceding entry to the U.S.,
  the employee was employed in a managerial or execu
  tive capacity and
• Employee must continue to be employed in the U.S.
   in a managerial or executive capacity.
• Advantage for those who entered the U.S. in L-1A 
  classification

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• EB-2 Second Preference
• Advanced Degree Exceptional Ability
• Individuals with advanced degrees (any U.S.
  academic or professional degree (or a foreign
  equivalent) above a bachelors degree level).
• Bachelors degree 5 years of progressive
  experience also typically qualifies (must be 4
  year degree)
• Individuals with exceptional ability in the
  sciences, arts, or business (arts includes
  athletics) these individuals have a degree of
  expertise above that which is ordinarily
  expected.

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• EB-3 Third Preference
• Professionals Skilled Workers
• Position requires individuals with bachelors
  degrees in their fields (but not necessarily any
  experience), or 2 years of training.

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• Employment-Based Immigrant Visas
• Quotas and Backlogs
• INA sets limits on how many green card visas may
  be issued each year.
• No one country can have more than a specific
  percentage of the total number of visas available
  annually.
• When these numbers are exceeded in a particular
  category for a particular nationality, a waiting
  list is created.
• Applicants are placed in line according to date
  of case filing (Priority Date).

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Immigrant Visa Backlogs DOS issues the Visa
Bulletin monthly, which provides information on
available visas To be eligible for an
available immigrant visa, an applicants
priority date in the particular visa category
must be current with respect to the country of
birth as reflected in the current Visa
Bulletin Visa Bulletin http//travel.state.
gov/visa/frvi/bulletin/bulletin_13 60.html
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Visa Bulletin for May 2009 Visa Bulletin for May 2009 Visa Bulletin for May 2009 Visa Bulletin for May 2009 Visa Bulletin for May 2009 Visa Bulletin for May 2009
All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIP- PINES
Employment Based
1st C C C C C
2nd C 15FEB04 15FEB04 C C
3rd U U U U U
Other Workers U U U U U
4th C C C C C
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Retrogression of Immigrant Visa Numbers Cannot
file concurrent I-140/I-485 when subject to the
immigrant visa backlog Can file the I-140
visa petition Applicants can file the
adjustment application or apply for the
immigrant visa at the consulate abroad only when
the priority date becomes current.
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Retrogression of Immigrant Visa Numbers If
numbers retrogress after filing USCIS
will hold the application Applicant may
apply for employment authorization and advance
parole I-140 portability for adjustment
applicants under AC21 I-485 pending for
more than 180-days and the I-140 petition is
approved or approvable
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THE END