Immigration

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Immigration

• A Guide to Work after Graduation

By Miller Mayer, LLP 202 E. State Street,
Suite 700 Ithaca, NY 14850 (607)
273-4200 www.millermayer.com
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Overview

• Nonimmigrant visas
• Immigrant visas

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Nonimmigrant Visa Categories http//www.millermaye
r.com/resources/usvisacategories.htm

• A Diplomats
• B Visitors (business/pleasure)
• C Transit
• D Crewman
• E Treaty trader/investors
• F Academic students
• G International Organization
• H Temporary workers
• I Journalists/Media
• J Exchange visitors
• K Fiances/fiancees of
• US citizens
• L Intracompany transferees
• M Vocational students

• N Parents or children of special immigrants
• O Persons of extraordinary ability
• P Athletes or entertainers
• Q International cultural exchange visitors
• R Religious workers
• S Federal witnesses (sneaky snitches)
• T Trafficking of persons victims
• TN NAFTA professionals (Mexico and Canada)
• U Certain crime victims
• V Certain spouses/children waiting for green
  cards

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H-1B Nonimmigrant Visas

• Employer sponsored for up to 6 years in a
  specialty occupation
• 3 Requirements
• - Job must require a Bachelors degree or higher
• - Beneficiary must have at least the relevant
  Bachelors degree or equivalent
• - Employer must pay the prevailing wage

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Specialty Occupation Defined

• A job that requires
• Highly skilled specialized knowledge
• _ Bachelors or higher degree in the specific
  specialty (or its equivalent)
• The degree must be in a specialty field
• General degrees may be challenged
• Clear examples of H-1B jobs accountant,
  scientist, computer science

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Procedure

• Employer must pay prevailing wage
• Overall processing time frame
• 3-6 months normally
• Premium processing possibility 2 weeks

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Advantages of H-1B

• Duration
• - up to 3 years initially, 3 more years, for 6
  year maximum
• Eligible for another 6 years after 1 year stay
  outside U.S.
• extensions after 6th year if green card started
  by end of 5th year
• Time to work toward green card
• No advertising or test of the U.S. labor market
• H-1B portability when change employers

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Disadvantages of H-1B

• Tied to one employer not flexible like F-1 OPT
• Paperwork, cost and delay scare some employers
• Fees
• 320 base fee
• 750 retraining fee if employer has lt25
  employees 1500 if gt25 employees
• 500 antifraud fee
• 1000 premium processing fee (optional)
• Total 1510-3320 plus Legal Fee

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What is the H-1B cap?

• 65,000 per fiscal year
• Of 65,000, 6,800 carved out for Chile and
  Singapore
• Separate 20,000 for graduates with U.S. masters
  degree or higher (since FY 2006)

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Race for H cap visas

• Quota year October 1 to September 30
• Apply Earliest April 1 (6 months)
• Past years H-1B quota filled
• April 1 - August 10, 2005
• April 1 - May 29, 2006
• April 2, 2007 1030 a.m.
• April 1-7, 2008
• USCIS conducts lottery to select cases to be
  considered for H-1B approval

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20,000 U.S. Masters Exemption

• Defining receipt of degree
• -- May 30, 2007 VSC liaison minutes,
• complete requirements for degree
• -- inconsistent adjudication
• Accredited U.S. institutions
• All advance degrees included
• FY2007 cap hit on July 26, 2006
• FY 2008 cap hit on April 30, 2007
• FY 2009 cap hit April 1 -7, 2008

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H-1B Cap Exemptions

• College/university employees
• Related or affiliated nonprofit entities
• Nonprofit research organizations
• Governmental research organizations
• Those already counted against the quota
• J-1 shortage area waivered doctors

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Moving from Exempt to Cap Subject Employer

• Subjects you to cap
• Concurrent employment consider part-time with
  each job
• Pre October 1st portability (5-23-07 Hernandez
  letter)

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OPT Time-Line
60-day grace period
Apply 3/24/08
Program end date 5/27/08
7/26/08
You choose your OPT start date
12 months OPT
Example 7/24/08
7/24/2009
Apply up to 120 days before your chosen start
date -- 90 days bf program end date and up to 60
days after.
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Cap Gap Regulation

• Permits F-1 student working on OPT whose H-1B
  petition is selected for H-1B adjudication to
  continue to work on OPT until H-1B is effective
  on October 1.

July 24, 2009 OPT expires, but cap gap work
authorization continues
July 24, 2009 OPT starts
October 1, 2009 H-1B work authorization begins
April 1, 2009 H-1B filed, accepted for
processing and ultimately approved
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Other NIVs

• E-3 only for Australians
• 2 year renewable, indefinitely
• 10,500 annual quota
• LCA only, consular filing
• Spouse and child work permits
• L-1 multinational transferee
• 12 months foreign employment
• Executive, manager, specialized knowledge
• Lower cost, green card, harsh adjudications
• Spouse work permits

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Other NIVs continued (no quota no maximum stay)

• E-1/E-2 treaty traders/investors
• Start/buy a company
• 50 foreign owned
• Lead, direct, manage
• No China, India few ME or African
• Os and Ps
• Extraordinary ability or performer
• Portfolio, c.v., reviews and publications
• 3 of 8 criteria

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O-1 Criteria

• Eight criteria for classification
• Receipt of a nationally or internationally
  recognized prize for achievement in field
• Membership in associations in field that require
  outstanding achievement of their members
• Material published about applicant in major trade
  publications or other major media
• Applicant serves as a judge of others in field
  either individually or on a panel
• Original, scientific, scholarly, artistic,
  athletic, or business-related contributions of
  major significance in field
• Authorship of scholarly articles in field
• Performing a critical or leading role for
  organizations that have a distinguished
  reputation
• Commanding a high salary in field

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TNs

• Mexican/ Canadian citizens
• Unlimited extensions of one year
• Residence outside U.S.
• Up to 3 years in job offer in listed occupation
• bachelors degree/license in that field
• See chapter 16 of NAFTA and 8 C.F.R. 216.4

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Common TN Occupations

• Accountant
• Architect
• College/university professor
• Computer systems analyst
• Engineer
• Graphic designer

• Management consultant
• Occupational therapist
• Registered nurse
• Scientific technician
• Social worker
• Urban planner

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How Can I Become a US Permanent Resident?

• Family-based
• Employment-based
• Diversity Lottery

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Family Relationship Basis

• Immediate Relatives children, spouses, or
  parents of US citizens (no limit per year)
• Unmarried sons daughters of US citizens
  (23,400 visas per year)
• Spouses/minor children unmarried sons and
  daughters of US permanent residents (114,200
  visas per year)
• Married sons and daughters of US citizens
  (23,400 visas per year)
• Brothers and sisters of US citizens (65,000
  visas per year)
• US citizen must be age 21 or over

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Employment Basis

• Skilled unskilled workers (EB-3)
• Skilled workers in short supply
• Professionals with baccalaureate degree
• Unskilled workers in short supply (requires a job
  offer and labor certification limit of 40,000
  visas per year)
• Special Immigrants (EB-4)
• Religious workers certain US govt. employees
  Panama Canal employees plus certain dependent
  juveniles (10,000 visas per year)
• Investors (EB-5)
• Must invest between 500K and 1 million
• Must create at least 10 full-time jobs (limit of
  10,000 visas per year)

• Priority Workers (EB-1)
• Extraordinary ability (no job required)
• Outstanding professors researchers (entering
  for tenure or tenure-track position)
• Business executives managers (no labor
  certification required limit of 40,000 visas per
  year
• Advanced degree holders (EB-2)
• Professionals with advanced degrees
• Exceptional ability in sciences, arts business
  (job offer and labor certification required
  limit of 40,000 per year

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Most Common Way to Get an Employment-Based Green
Card
(for EB-2, EB-3)
Adjustment of Status AOS (CIS)
PERM (DOL)
I-140 Immigrant Visa Petition (CIS)
Consular Processing Overseas (DOS)
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PERM Labor Certification

• A certification from the Department of Labor that
  a particular position at a particular company is
  open because no qualified U.S. workers are
  available
• Employer must complete 5 kinds of recruitment,
• show ability to pay wage and prepare audit file
• Electronic filing with US DOL
• Upon certification, file I-140 within 180 days
• Final step may have to wait for some EB-2, EB-3

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I-140 IV Petition (without PERM Labor
Certification)

• Three types of EB-1 priority workers
• EB-1-1 Extraordinary ability aliens
• EB-1-2 Outstanding professors and researchers
• EB-1-3 Multinational executives and managers
• Labor certification not required for any EB-1
  priority workers
• EB-2 (Advanced degrees, Exceptional ability)
• No Labor certification required if work is in the
  national interest

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Green Card Backlogs

• Can file for adjustment, obtain immigrant visa
  only if priority date is current
• Substantial backlogs for the EB-3 category and
  for nationals of India and China in EB-2 category
• EB-2 backlogs may spread to other nationalities
  or to EB-1
• It could take five years or longer to get an
  immigrant visa, even if you start today!

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Quota Delay Wait for Priority Date To file AOS
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EB-5 Immigrant Investors

• Reserved for immigrants who invest in and manage
  U.S.
• companies that benefit U.S. economy and create
  or save at least 10 fulltime jobs
• 1 million normally required to invest can be
  500,000 in rural or poor areas
• Get conditional residence for two years then
  must prove investment worked to get condition
  removed
• Law allows up to 10,000 EB-5 green cards per year
• Unlike other EB categories, no quota backlogs

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Sources of Information on Immigration Law

• Citizenship Immigration Services
• http//www.uscis.gov/portal/site/uscis
• Statutes regulations
• Forms
• Procedures and instructions
• Contact information
• Processing times

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Sources of Information on Immigration Law

• U.S. Department of State
• http//travel.state.gov/
• Links to embassies consulates worldwide
• Application procedures and consulate closings
• Wardens messages and travel advisories
• Public announcements
• Derivative citizenship and renunciation
• Visa Bulletin regarding priority dates

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Parting Thoughts

• Realistic assessment is important
• Planning ahead
• Getting to know employers soon
• Alternative and creative employments

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Need help with immigration matters?

• Interested in an immigration consultation?
• To sign up for a free monthly immigration
  newsletter
• Contact
• Miller Mayer
• 202 E. State Street, Suite 700
• Ithaca, NY 14850
• [phone]
• info_at_millermayer.com

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Questions?