From Degree to H-1B: Immigration Options After GraduationJared Leung, Esq.Kathy Bunch, Immigration Paralegal

Fennemore Craig, P.C.3003 North Central Ave., Ste. 2600Phoenix, AZ 85012(602) 916-5446www.fennemorecraig.com

Session Goals• Review Key Concepts.

• Understand the rules of Curricular and Optional Practical Training (CPT & OPT).

• Understand how to obtain H-1B work status

• Understand requirements for obtaining employment-based permanent residency.

• Q&A

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What is a “Visa”?• A visa grants the holder permission to enter the U.S.

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What is an “I-94”? • The I-94 card controls the terms of stay and serves as

evidence of lawful status.

Change of Status v. Consular Processing

Dual Intent• Non-immigrant vs. immigrant intent, and “dual” intent

J-1 Exchange Visitors

• Exchange visitors that intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training

• Allowed to stay in U.S. for duration of program

• May be subject to a 2-year foreign residency requirement • If subject to 2-year requirement may obtain

waiver

• Post-doctoral Academic Training - granted in increments of 18 months with a maximum period of 36 months.

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F-1 Students• Non-immigrants who enter the U.S.

as a full-time students at an accredited academic institution or in a language training program

• Program must culminate in a degree, diploma, or certificate and the school must be authorized by the U.S. government to accept international students

• Allowed to stay in U.S. for duration of program

• Can stay in the U.S. and change status if petitioned by employer

CPT & OPT for Students

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Curricular Practical Training (CPT)

• Permitted before graduation

• Must be directly related to field of study and authorized by DSO and evidenced on I-20

• If used 12 months or more full time CPT, student is disqualified for any post-graduation OPT, but time spent on CPT for less than 12 months does not reduce OPT eligible time

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Optional Practical Training (OPT)

• Permitted for both pre- and post- graduation, but time spent on pre-graduation OPT reduces eligible time for post-graduation OPT

• OPT directly related to major field of study/degree.

• Apply up to 90 days before graduation and up to 60 days after graduation – granted initially for 12 months

• Coordinate start date / end date with new visa start date.

• Often essential trial period before employer makes commitment for visa sponsorship.

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Employment Authorization Document (EAD)

Extension of OPT• Extensions possible for additional 17 months for STEM

fields (science, technology, engineering and mathematics)

• What are the eligible STEM fields?

• Computer Science Applications• Actuarial Science• Engineering• Engineering Technologies• Biological and Biomedical Sciences• Mathematics and Statistics• Military Technologies• Physical Sciences• Science Technologies• Medical Scientist

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STEM OPT and E-Verify• STEM extension permitted only if students work for employers

enrolled in E-Verify.

• Employer’s E-Verify ID# required for STEM OPT extension.

• E-Verify: Internet-based system operated by DHS in partnership with SSA.

• Electronically compares information contained on Form I-9 with records contained in DHS and SSA databases.

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OPT Unemployment Time • 90-day limit for first 12 months of OPT.

• STEM OPT extension: 30 additional days; maximum 120 days of unemployment.

• OPT work must be at least 20 hours per week.

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OPT Reporting Requirements• F-1 must report change in employment to

DSO – ASAP or within 10 business days.

• Changes: new job, change of employer, multiple “short-term gigs,” self-employment, or unemployed for more than 10 days.

• If there is a change of employer the F-1 must report to the DSO and file an “amended” I-765 to USCIS with new employer’s E-Verify ID# and copy of USCIS receipt for first EAD.

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STEM OPT Reporting Requirements

•Employer must report to DSO when employment is terminated.

•F-1 must report address changes to DSO, residential and mailing addresses.

•Consult with DSO regarding reporting procedure.

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H-1B Specialty Occupations

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• Must be in a “specialty occupation” – position which requires at least a bachelor’s degree in a specific field

• Beneficiary must have that degree or equivalent.

• Degree must be in field of study relevant to occupation.

• “Specialized Occupations” may include: chemist, biologist, engineer, physicist, software developer, systems analyst, accountant, economist, architect.

H-1B Basics

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• Valid for total of 6 years (each petition max of 3); dual intent permitted

• “Regular” H-1B cap/quota: 65,000 new H-1Bs issued each fiscal year (10/01 to 09/30).

• “Master” H-1B cap/quota: 20,000 for holders of U.S. master’s degree or above. When this is used up, people with U.S. master’s degree will use the “regular” quota.

• Exempt from cap: extensions, change of employer, exempt employers (universities, non-profits affiliated with universities, research organizations).

H-1B Basics

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F-1 “Cap Gap” Extension

• Cap-Gap: time between end of “normal” F-1 OPT status and beginning of H-1B status on October 1st.

• F-1 OPT “Cap-Gap” Extension: F-1 must be beneficiary of timely filed and approved H-1B petition with 10/01 start date.

• OPT work authorization will be automatically extended to bridge gap to 9/30. H-1B status will begin 10/01.

• Do not travel internationally during “Cap-Gap” time

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HypotheticalStudent graduates in December 2012 and begins working on OPT. His OPT expires in December 2013.

• When should he apply for H-1B?

• Will the cap gap save him?

• Helpful Tip: Leaving some of your OPT time on the table is a small price to be sure to get an H-1B. The cap gap cannot bridge a gap from December to October.

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HypotheticalStudent graduates in May 2012 and begins working on OPT. Company A petitions for H-1B status on her behalf in April 2013. Her OPT expires in May 2013.

• Can she remain in the U.S.?

• Can she keep working?

• Does she need to apply for a new EAD?

• Can she travel out of the U.S. before October 1, 2013?

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H-1B Portability(Change of Employer)

• H-1B worker allowed to start with new employer upon “filing” new H-1B petition (should have USCIS issued receipt notice on hand to start new position)

• 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.

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H-1B Extensions Beyond 6 Years

• If labor certification or I-140 (immigrant petition) 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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Other Important H-1B Issues• Employer must pay “prevailing wage” as determined by

DOL.

• Regulations state that employer is responsible for all legal fees and costs (filing fees, legal fees).

• No labor market test or need to prove U.S. worker shortage. Return transportation cost.

• Material changes in employer or position may necessitate amended or new petition.

• Export License may be required.

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HypotheticalH-1B worker is employed by Company A. Receives job offer from Company B which needs him to start immediately. Company B files Form I-129 on November 1.

• When can employee “port” and begin working for Company B?

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HypotheticalH-1B employee is in year 6 (final year) of his employment with Company A. He applies for labor certification at the 5 years and 6 months mark. The DOL certifies his application just before his H-1B expires.

• Can he extend his H-1B?

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HypotheticalH-1B employee works for University for 2 years. She then receives job offer from Company B, a semiconductor manufacturer, who files an I-129 on her behalf.

• Will she be subject to the H-1B cap?

• What if she will continue to work for University concurrently?

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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 up to three years to work for a U.S. employer in that profession

• Professions include:

• Architects• Accountants• Systems Analysts• Engineers• Lawyers• Scientists in most disciplines• Graphic Artists• Management Consultants• Hotel Managers• Professors• Others

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TN (NAFTA) Status• Canadian nationals–border adjudication (Canadians are visa-

exempt).

• Mexican nationals apply at consular posts.

• May also file petitions if in the U.S.

• TN’s must have temporary, nonimmigrant intent (but filing I-140 is not a bar to extension).

• No prevailing wage requirement.

• Need relevant degree (experience relevant for Management Consultant, Scientific Technician).

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Permanent Residency (“Green Card”)

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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.

• This processes is called Labor Certification – PERM (Program Electronic Review Management process ). 33

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Employment Based Permanent Immigration

• I-140 is filed by employer and can be filed at any time.

• I-485 is filed by employee and can only be filed when employee's Priority Date is current. Employee receives work permit and travel permit (Advance Parole) within 90 days.

• Once I-140 is approved, and once I-485 has been pending for 6 months, employee is “portable” and may change employers.

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Labor Certification

(PERM)

I-140 Immigrant

Petition

I-485 application

(AOS)

Priority Date• Immigrant visa numbers are assigned to a “preference category.”

• Limited to 140,000 total per year. Only certain percentage of visas can be allotted to each country depending on country usage.

• When demand exceeds supply, a visa queue (waiting list) forms.

• The priority date is used to determine an individual’s place in line in the visa queue.  When the priority date becomes current, the individual will be eligible to apply for an immigrant visa (i.e., file the I-485).

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Priority Date• The priority date for an employee who is the beneficiary of an

employment-based immigrant petition is either:

• The date the I-140 petition was properly filed with USCIS, or

• The date the labor certification application was accepted for processing by the Department of Labor (when a labor certification is required).

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Preference Categories• Each year 140,000 visas (green cards) allocated among 5 categories,

called “preferences”. (i.e., 1st. 2nd, 3rd, etc.)

• Demand for immigrant visas always exceeds supply. Generally, the higher the preference category, the shorter the wait for a visa.

• Typically no wait for first preference, and 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 PreferenceThese categories avoid Labor Certification all together:

• Individuals of extraordinary ability;

• Outstanding professors and researchers;

• Individuals who are multinational managers or executives. 38

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EB-2 Second PreferenceAdvanced Degree

• Individuals with advanced degrees (any U.S. academic or professional degree (or a foreign equivalent) above a bachelor’s degree level).

• Bachelor’s degree + 5 years of progressive experience also typically qualifies (must be 4 year degree)

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EB-3 Third PreferenceProfessionals & Skilled Workers• Position requires individuals with bachelor’s degrees in

their fields (but not necessarily any experience), or 2 years of training.

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Quotas and Backlogs• DOS issues the Visa Bulletin monthly, which provides

information on available visas

• To be eligible for an available immigrant visa, an applicant’s “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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AllChargeabilityAreas ExceptThose Listed

CHINA-mainland

born

INDIA MEXICO PHILIP-PINES

Employment Based

1st C C C C C

2nd C 01MAY10 01MAY10 C C

3rd 08APR06 01MAR05 01SEP02 08APR06 08APR06

Other Workers 08APR06 22APR03 01SEP02 08APR06 08APR06

Visa Bulletin April 2012

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HypotheticalsH-1B employee has spouse on H-4. Spouse wants to work. Employer obtains approved I-140 on behalf of employee.

• When will spouse be able to get work authorization?

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HypotheticalsH-1B employee with Company A files obtains labor certification. Files I-140 which is approved 6 months later. Priority date becomes current and employee files I-485.

• When can she change employers?

• Can she change to self-employment?

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HypotheticalsH-1B employee with Company A files obtains labor certification. Files I-140 which is approved 6 months later. Due to country backlogs, he is unable to submit I-485. He then changes employers.

• Does he need to file a new PERM with new employer?

• Does he get to keep priority date?

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QUESTIONS

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Jared Leungjleung@fclaw.com602-916-5315

Kathy Bunchkbunch@fclaw.com602-916-5716