ImmigrationImmigration

Visas After GraduationVisas After GraduationBinghamton UniversityBinghamton University

March 21, 2012March 21, 2012

Miller Mayer, LLP202 E. State StreetIthaca, NY 14850(607) 273-4200www.millermayer.com

OverviewOverview

Nonimmigrant visasNonimmigrant visas

Immigrant visasImmigrant visas

Nonimmigrant Nonimmigrant Visa Categories

AA DiplomatsDiplomats BB Visitors Visitors

(business/pleasure)(business/pleasure) CC TransitTransit DD CrewmanCrewman EE Treaty trader/investorsTreaty trader/investors FF Academic studentsAcademic students GG International International

OrganizationOrganization HH Temporary workersTemporary workers II Journalists/MediaJournalists/Media JJ Exchange visitorsExchange visitors KK Fiancés/fiancées of Fiancés/fiancées of

US citizensUS citizens LL Intra-company Intra-company

transfereestransferees MM Vocational studentsVocational students

NN Parents or children of Parents or children of special special immigrantsimmigrants

OO Persons of extraordinary Persons of extraordinary abilityability

PP Athletes or entertainersAthletes or entertainers QQ International cultural International cultural

exchange visitorsexchange visitors RR Religious workersReligious workers SS Federal witnesses (sneaky Federal witnesses (sneaky

snitches)snitches) TT Trafficking of persons Trafficking of persons

victimsvictims TNTN NAFTA professionals (Mexico NAFTA professionals (Mexico

and Canada)and Canada) UU Certain crime victimsCertain crime victims VV Certain spouses/children Certain spouses/children

waiting for green cardswaiting for green cards

H-1B H-1B Nonimmigrant Visas

Employer sponsored for up to 6 years in a Employer sponsored for up to 6 years in a “specialty occupation”“specialty occupation”

3 Requirements:3 Requirements:• Job must require a Bachelor’s degree or Job must require a Bachelor’s degree or

higher in specific fieldhigher in specific field• Beneficiary must have at least the relevant Beneficiary must have at least the relevant

Bachelor’s degree or equivalentBachelor’s degree or equivalent• Employer must pay a required wageEmployer must pay a required wage

Procedure Procedure

File Labor Condition Application (LCA) -- File Labor Condition Application (LCA) -- Employer must pay higher of prevailing or Employer must pay higher of prevailing or actual wage; no adverse work conditions for US actual wage; no adverse work conditions for US workersworkers

File H-1B petition (Form I-129)File H-1B petition (Form I-129)

Overall processing time frame:Overall processing time frame:•3-4 months normally3-4 months normally•Premium processing possibility: 2 weeksPremium processing possibility: 2 weeks

Advantages of H-1B:Advantages of H-1B:

Duration: Duration: • 6 year maximum6 year maximum• 1 year stay outside U.S. refreshes 6 yrs 1 year stay outside U.S. refreshes 6 yrs • additional H extensions if green card started by additional H extensions if green card started by

end of 5end of 5thth year year Time to work toward green cardTime to work toward green card No advertising or test of the U.S. labor market No advertising or test of the U.S. labor market

---- but new large employer restrictionsbut new large employer restrictions-- and new ITAR attestations-- and new ITAR attestations

H-1B portability when change employersH-1B portability when change employers

Disadvantages of H-1B:Disadvantages of H-1B:

Tied to one employer Tied to one employer Not flexible like F-1 OPTNot flexible like F-1 OPT Paperwork, cost and delayPaperwork, cost and delay October 1October 1stst start date + cap race start date + cap race Fees: Fees:

$825 - $3,550 filing fee$825 - $3,550 filing fee

$ 2,500 approx. legal fee$ 2,500 approx. legal fee

What is the H-1B “cap”?What is the H-1B “cap”?

65,000 per fiscal year65,000 per fiscal year Of 65,000, 6,800 carved out for Chile Of 65,000, 6,800 carved out for Chile

and Singaporeand Singapore Separate 20,000 for graduates with Separate 20,000 for graduates with

U.S. master’s degree or higherU.S. master’s degree or higher

Race for H cap visasRace for H cap visas

Quota year: October 1 to September 30 Quota year: October 1 to September 30 Apply Earliest: April 1 (6 months before)Apply Earliest: April 1 (6 months before) Past years’ H-1B quota filled:Past years’ H-1B quota filled:

August 10, 2005 (FY 2006)August 10, 2005 (FY 2006) May 26, 2006 (FY 2007)May 26, 2006 (FY 2007) April 3, 2007 (FY 2008)April 3, 2007 (FY 2008) April 7, 2008 (FY 2009)April 7, 2008 (FY 2009) December 21, 2009 (FY 2010)December 21, 2009 (FY 2010) January 26, 2011 (FY 2011)January 26, 2011 (FY 2011) November 22, 2011 (FY 2012)November 22, 2011 (FY 2012)

If needed, USCIS conducts “lottery” to select cases to be If needed, USCIS conducts “lottery” to select cases to be considered for H-1B approvalconsidered for H-1B approval

20,000 U.S. Master’s 20,000 U.S. Master’s ExemptionExemption

Defining receipt of degreeDefining receipt of degree““complete requirements for degree”complete requirements for degree”

Accredited U.S. institutionsAccredited U.S. institutions All advanced degrees includedAll advanced degrees included Master’s cases considered under Master’s cases considered under

both capsboth caps

H-1B Cap ExemptionsH-1B Cap Exemptions

College/university employeesCollege/university employees Related or affiliated nonprofit entitiesRelated or affiliated nonprofit entities Nonprofit research organizationsNonprofit research organizations Government research organizationsGovernment research organizations Prior cap H-1B holdersPrior cap H-1B holders J-1 shortage area waivered doctors J-1 shortage area waivered doctors

Moving from Exempt to Cap Moving from Exempt to Cap Subject EmployerSubject Employer

Makes you subject to the capMakes you subject to the cap Concurrent employment: consider Concurrent employment: consider

part-time with each jobpart-time with each job Pre-October 1 portability Pre-October 1 portability Changing jobs between April 1 and Changing jobs between April 1 and

October 1October 1

Program end date

5/27/12

60-day grace period

7/26/12

You choose your OPT start date

Example: 7/24/1212 months OPT plus cap

gap extension Apply up to 90 days before program end date and no later than 60 days

after.

10/1/2013

Apply 2/27/12

OPT Timeline & Cap Gap Extension

Apply for H 4/1/2013

EAD expires 7/23/2013

Good News Administrative Efforts

17-month OPT extension for PRIOR STEM degree

H-4 work authorization for certain spouses

Article: DHS Reforms To Attract And Retain Highly Skilled Immigrants

P.L. 111-230 – P.L. 111-230 – Large EmployersLarge Employers

P.L. 111-230 certification that large P.L. 111-230 certification that large company does not have 50% or more company does not have 50% or more H-1B employees; if more than 50%, H-1B employees; if more than 50%, employer pays additional feesemployer pays additional fees

ITAR -- Export Controls Attestation

Regulations restrict release of certain “technology” and “technical data” to certain foreign nationals

Employers of covered foreign nationals must get a license to release “technology” or “technical data”

H-1B ConclusionH-1B Conclusion

H-1B visas are the workhorse of the H-1B visas are the workhorse of the temporary worker visa categories, but temporary worker visa categories, but are complex and must be done correctly are complex and must be done correctly to avoid immigration or Labor to avoid immigration or Labor Department violations. Limited supply Department violations. Limited supply makes careful planning essential.makes careful planning essential.

Fraud Site Visits and Fraud Site Visits and LCAs for New WorksitesLCAs for New Worksites

Employer Site visits:Employer Site visits: USCIS Office of Fraud InvestigationUSCIS Office of Fraud Investigation DOL LCA auditsDOL LCA audits

Foreign National inspections:Foreign National inspections: U.S. consulate DS-160 visa processingU.S. consulate DS-160 visa processing CBP airport inspection: where do you work? Carry CBP airport inspection: where do you work? Carry

LCA for additional worksiteLCA for additional worksite Border patrol interior stopBorder patrol interior stop

compliance important, enforcement occurscompliance important, enforcement occurs

Other NIVsOther NIVs B/WTB/WT: : bridging as a visitor E-1/E-2E-1/E-2: : treaty traders/investors E-3E-3: only for Australians: only for Australians F/JF/J: : back to school options J:J: professional trainees H-3H-3: :

Up to two years of on-the-job training L-1L-1: : move out of U.S. for a year

L-2L-2: derivative spouses with work : derivative spouses with work authorizationauthorization

OO: : Extraordinary ability aliens (researchers and artists)(researchers and artists)

E-3: E-3: only for Australians only for Australians • 2 year renewable, indefinitely2 year renewable, indefinitely• 10,500 annual quota10,500 annual quota• LCA only, consular filingLCA only, consular filing• Spouse and child work permitsSpouse and child work permits

L-1: L-1: multinational transferee • 12 months foreign employment12 months foreign employment• Executive, manager, specialized knowledgeExecutive, manager, specialized knowledge• Lower cost, green card, harsh adjudicationsLower cost, green card, harsh adjudications• Spouse work permitsSpouse work permits

Other NIVs continuedOther NIVs continued

E-1/E-2: E-1/E-2: treaty traders/investors• Start/buy a companyStart/buy a company• 50+% foreign owned50+% foreign owned• Lead, direct, manageLead, direct, manage• No China, India; few Middle Eastern or African countriesNo China, India; few Middle Eastern or African countries

Os and Ps:Os and Ps: extraordinary ability or performer

• Portfolio, c.v., reviews and publicationsPortfolio, c.v., reviews and publications• 3 of 8 criteria 3 of 8 criteria

Other NIVs continued (no quota, no Other NIVs continued (no quota, no maximum stay)maximum stay)

Eight criteria for classification:Eight criteria for classification:1.1. Receipt of a nationally or internationally recognized prize for Receipt of a nationally or internationally recognized prize for

achievement in fieldachievement in field

2.2. Membership in associations in field that require “outstanding Membership in associations in field that require “outstanding achievement” of their membersachievement” of their members

3.3. Material published about applicant in major trade publications Material published about applicant in major trade publications or other major mediaor other major media

4.4. Applicant serves as a judge of others in field either individually Applicant serves as a judge of others in field either individually or on a panelor on a panel

5.5. Original, scientific, scholarly, artistic, athletic, or business-Original, scientific, scholarly, artistic, athletic, or business-related contributions of major significance in fieldrelated contributions of major significance in field

6.6. Authorship of scholarly articles in fieldAuthorship of scholarly articles in field

7.7. Performing a critical or leading role for organizations that have Performing a critical or leading role for organizations that have a distinguished reputationa distinguished reputation

8.8. Commanding a high salary in fieldCommanding a high salary in field

O-1 CriteriaO-1 Criteria

Mexican/ Canadian citizens Mexican/ Canadian citizens Unlimited extensionsUnlimited extensions Residence outside U.S. Residence outside U.S. Up to 3 years in job offer in listed occupation Up to 3 years in job offer in listed occupation Bachelor’s degree/license in that fieldBachelor’s degree/license in that field See chapter 16 of NAFTA and 8 C.F.R. § 216.4See chapter 16 of NAFTA and 8 C.F.R. § 216.4

TNs

AccountantAccountant ArchitectArchitect College/university College/university

professorprofessor Computer systems Computer systems

analystanalyst EngineerEngineer Graphic designerGraphic designer

Management Management consultantconsultant

Occupational Occupational therapisttherapist

Registered nurseRegistered nurse Scientific Scientific

techniciantechnician Social workerSocial worker Urban plannerUrban planner

Common TN OccupationsCommon TN Occupations

Bring to U.S. port of entry:Bring to U.S. port of entry:• Proof of citizenshipProof of citizenship• Statement from employer stating the Statement from employer stating the

qualifications of the positionqualifications of the position• Evidence of applicant’s qualifications for that Evidence of applicant’s qualifications for that

positionposition• Filing feeFiling fee

Approved applicants can leave and re-enter Approved applicants can leave and re-enter the U.S. with their endorsed multiple entry I-94 the U.S. with their endorsed multiple entry I-94 cardscards

TN Procedure for CanadiansTN Procedure for Canadians

How Can I Become a US Permanent How Can I Become a US Permanent Resident?Resident?

Family-basedFamily-based

Employment-basedEmployment-based

Diversity LotteryDiversity Lottery

Family Relationship BasisFamily Relationship Basis Immediate Relatives –children, spouses, or Immediate Relatives –children, spouses, or

parents of USparents of US citizens (no limit per year)citizens (no limit per year)

Unmarried sons & daughters of US citizens Unmarried sons & daughters of US citizens (23,400 visas per (23,400 visas per year)year)

Spouses/minor children & unmarried sons and Spouses/minor children & unmarried sons and daughters of US permanent residents (114,200 visas per daughters of US permanent residents (114,200 visas per year)year)

Married sons and daughters of US citizens (23,400 Married sons and daughters of US citizens (23,400 visas visas per year) per year)

Brothers and sisters of US citizens (65,000 visas Brothers and sisters of US citizens (65,000 visas per year) per year)

US citizen son or daughter sponsor must be age US citizen son or daughter sponsor must be age 21 or over21 or over

Employment BasisEmployment Basis

Priority Workers (EB-1)40,000 visas per year40,000 visas per year

Extraordinary ability (self-sponsor)Extraordinary ability (self-sponsor) Outstanding professors & researchers Outstanding professors & researchers

(tenure-track position)(tenure-track position) Business executives & managers (no Business executives & managers (no

labor certification required)labor certification required)

Advanced degree holders (EB-2)40,000 visas per year40,000 visas per year

Professionals with advanced degrees Professionals with advanced degrees or exceptional ability in sciences, arts or exceptional ability in sciences, arts & business (labor certification & business (labor certification required)required)

National Interest Waiver of labor National Interest Waiver of labor certification requirementcertification requirement

Skilled & unskilled workers (EB-3)40,000 visas per year40,000 visas per year

Skilled workers in short supplySkilled workers in short supply Professionals with bachelor’s degreeProfessionals with bachelor’s degree Unskilled workers in short supply (all Unskilled workers in short supply (all

require labor certification)require labor certification)

Special Immigrants (EB-4)Special Immigrants (EB-4)10,000 visas per year10,000 visas per year

Religious workers; certain US govt. Religious workers; certain US govt. employees; Panama Canal employees; employees; Panama Canal employees; plus certain dependent juvenilesplus certain dependent juveniles

Investors (EB-5)Investors (EB-5)10,000 visas per year10,000 visas per year

Must invest between $500,000 and $1 Must invest between $500,000 and $1 millionmillion

Must create at least 10 full-time jobsMust create at least 10 full-time jobs

PERM(DOL)

I-140 Immigrant

Visa Petition(USCIS)

Adjustment of Status

AOS(USCIS)

Consular Processing Overseas

(DOS)

Most Common Way to Get an Most Common Way to Get an Employment-Based Green CardEmployment-Based Green Card

(for EB-2, EB-3)(for EB-2, EB-3)

PERM Labor CertificationPERM Labor Certification

A certification from the Department of Labor that a A certification from the Department of Labor that a particular position at a particular company is “open” particular position at a particular company is “open” because no qualified U.S. workers are available because no qualified U.S. workers are available

Employer must complete 5 kinds of recruitment, Employer must complete 5 kinds of recruitment, show ability to pay wage and prepare audit fileshow ability to pay wage and prepare audit file

Electronic filing with US DOLElectronic filing with US DOL

Upon certification, must file I-140 within 180 daysUpon certification, must file I-140 within 180 days

Final step: may have to wait for some EB-2, EB-3sFinal step: may have to wait for some EB-2, EB-3s

Three types of EB-1 priority workers:Three types of EB-1 priority workers:1.1. EB-1-1 Extraordinary ability aliens EB-1-1 Extraordinary ability aliens

2.2. EB-1-2 Outstanding professors and EB-1-2 Outstanding professors and researchersresearchers

3.3. EB-1-3 Multinational executives and EB-1-3 Multinational executives and managersmanagers

EB-2 (Advanced degrees, Exceptional EB-2 (Advanced degrees, Exceptional ability) with ability) with “national interest” waiver“national interest” waiver

I-140 Green Card PetitionsI-140 Green Card Petitions(without PERM Labor Certification)(without PERM Labor Certification)

““Priority date” is “current”Priority date” is “current” EB-3 category and India and China in EB-3 category and India and China in

EB-2 category:EB-2 category: It could take five years or longer to get It could take five years or longer to get

an immigrant visa, even if you start an immigrant visa, even if you start today!today!

Read our bi-monthly newsletters for up Read our bi-monthly newsletters for up to date news information to date news information

Green Card Processing BacklogsGreen Card Processing Backlogs

Quota Delay: Wait for Priority Date

to File Adjustment of Status (April 2012)Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born

INDIA MEXICO PHILIPPINES

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

4th C C C C C

Certain Religious Workers

C C C C C

5th C C C C C

Targeted Employment Areas/ Regional Centers

C C C C C

5th Pilot Programs

C C C C C

Reserved for immigrants who invest in and Reserved for immigrants who invest in and manage U.S. companies that benefit U.S. manage U.S. companies that benefit U.S. economy and create or save at least 10 economy and create or save at least 10 fulltime jobsfulltime jobs

$1 million normally required to invest; can $1 million normally required to invest; can be $500,000 in rural or poor areasbe $500,000 in rural or poor areas

Get conditional residence for two years; then Get conditional residence for two years; then must prove investment worked to get must prove investment worked to get condition removedcondition removed

Law allows up to 10,000 EB-5 green cards Law allows up to 10,000 EB-5 green cards per yearper year

No quota backlogsNo quota backlogs

EB-5 Immigrant InvestorsEB-5 Immigrant Investors

Sources of Information on Sources of Information on Immigration LawImmigration Law

Citizenship & Immigration ServicesCitizenship & Immigration Services

– Statutes & regulationsStatutes & regulations– FormsForms– Procedures and instructionsProcedures and instructions– Contact informationContact information– Processing timesProcessing times

Sources of Information on Sources of Information on Immigration LawImmigration Law

U.S. Department of StateU.S. Department of State

– Links to embassies & consulates worldwideLinks to embassies & consulates worldwide– Application procedures and consulate Application procedures and consulate

closingsclosings– Wardens messages and travel advisoriesWardens messages and travel advisories– Public announcementsPublic announcements– Derivative citizenship and renunciationDerivative citizenship and renunciation– Visa Bulletin regarding priority datesVisa Bulletin regarding priority dates

Parting ThoughtsParting Thoughts

Realistic assessment is importantRealistic assessment is important Planning ahead is keyPlanning ahead is key Get to know employers soonGet to know employers soon Think of alternative and creative Think of alternative and creative

employment optionsemployment options

Need help with immigration Need help with immigration matters?matters?

Interested in an immigration consultation? Interested in an immigration consultation?

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Contact: Contact: Miller Mayer, LLPMiller Mayer, LLP202 E. State Street, Suite 700202 E. State Street, Suite 700Ithaca, NY 14850Ithaca, NY 14850(607) 273-4200(607) 273-4200info@millermayer.cominfo@millermayer.com

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Questions?Questions?