IMMIGRATION OPTIONSAFTER F-1/OPT

Matthew 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 VisaProcedural 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 student’s 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: TemporaryProfessional 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 Visas–Special 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 nationals–border 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 RFE’s

• Visa issuance subject to delays for appointments, background checks and other issues

• Don’t assume that visa issuance will be a “quick trip” – plan ahead

• Delays in other areas: SSN’s, driver’s 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:

1) Individuals of extraordinary ability;

2) Outstanding professors and researchers;

3) Individuals who are multinational managers or executives.

*I-140 / I-485 concurrent filing if visa number available

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EB-1 First PreferenceExtraordinary Ability

• Must be seeking to enter U.S. in the sciences, education, 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;

• Evidence that you have performed a lead or critical role for organizations of distinguished reputation;

• Evidence that you have commanded a high salary or other remuneration for work in your field.

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EB-1 First PreferenceOutstanding 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 outstanding achievements;3) Published material about the FN’s work in professional or major trade  publications;4) Participation as editor/judge of work of others;5) Original scientific contributions of major significance in the field; and/or6) Authorship of scholarly books/articles (in scholarly journals with international  circulation.

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EB-1 First PreferenceMultinational Managers/Executives

• Similar to nonimmigrant L-1A visa regulations.

• The prospective U.S. employer is the same employer or a subsidiary, affiliate, or other legal entity related to the FN’s overseas employer; 

•In 3 years preceding entry to the U.S., the employee was employed in a managerial or executive 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 PreferenceAdvanced Degree & Exceptional Ability

• 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)

• 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 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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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 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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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 ImmigrantVisa 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 ImmigrantVisa 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