Post Graduation Employment Post Graduation Employment Options: Clearing All the Options: Clearing All the

HurdlesHurdlesPresented by:Presented by:

David A.M. Ware, attorney at lawDavid A.M. Ware, attorney at lawwww.david-ware.com. . dware@david-ware.com

800 537 0179800 537 0179National Practice with Offices Across the Gulf SouthNational Practice with Offices Across the Gulf South

Your career in the US after graduation Your career in the US after graduation should ALWAYS start with Optional should ALWAYS start with Optional Practical Training (OPT).Practical Training (OPT).You must apply You must apply within the 90 days within the 90 days before completing your program or up before completing your program or up to 60 days after completion.to 60 days after completion.Apply early and follow school’s Apply early and follow school’s instructions: all OPT must end within 14 instructions: all OPT must end within 14 months of program end date.months of program end date.New rule of 4/8/08 has changed New rule of 4/8/08 has changed everything: not your brother’s OPT.everything: not your brother’s OPT.

Where Do I Start?Where Do I Start?

OPT ideally acts as a bridge between your OPT ideally acts as a bridge between your studies and the workplace.studies and the workplace.It allows you to “get your foot in the door” It allows you to “get your foot in the door” with a US employer without any paperwork with a US employer without any paperwork on their part: vitally important.on their part: vitally important.It allows you to try more than one job if you It allows you to try more than one job if you wish.wish.While in some cases it While in some cases it may may be possible to be possible to proceed directly to H1B or even permanent proceed directly to H1B or even permanent residence without OPT, this is usually residence without OPT, this is usually unadvisable, as the H1B could be denied, unadvisable, as the H1B could be denied, and PR almost always takes more than one and PR almost always takes more than one year.year.

Cross The BridgeCross The Bridge

How Do I Cross?How Do I Cross?

– Eligible for one year of OPT for each Eligible for one year of OPT for each higherhigher degree degree

Don’t need job offer to applyDon’t need job offer to apply

Employment must be directly related to major field of studyEmployment must be directly related to major field of study

Apply by filing Form I-765 with USCIS with OPT I 20Apply by filing Form I-765 with USCIS with OPT I 20

– Apply no more than 30 days after ISA authorizes in SEVISApply no more than 30 days after ISA authorizes in SEVIS

– While engaged in OPT, you must report change of While engaged in OPT, you must report change of your name, address, or e-mail address, change of your name, address, or e-mail address, change of employer’s name or address, loss of job, and employer’s name or address, loss of job, and changes of employer to your advisor. Failure to do changes of employer to your advisor. Failure to do so could result in denial of H1B, PR. Also, “validation so could result in denial of H1B, PR. Also, “validation report” each six months if on STEM ext. Your school report” each six months if on STEM ext. Your school must report any changes in SEVIS. Your employer must report any changes in SEVIS. Your employer must report if you are on STEM ext. and lose your must report if you are on STEM ext. and lose your job.job.

Grab onto the STEM!Grab onto the STEM!

– STEM extension of OPTSTEM extension of OPT

Students who earn bachelor’s or higher in a science, Students who earn bachelor’s or higher in a science, technology, engineering or mathematics (STEM) field may technology, engineering or mathematics (STEM) field may receive receive one one 17-month extension, for 29 months total OPT17-month extension, for 29 months total OPT

– Apply by filing Form I-765 Apply by filing Form I-765 before before initial 12 mos of OPT expiresinitial 12 mos of OPT expires

authorized to continue working 180 days while waiting for authorized to continue working 180 days while waiting for approvalapproval

– Employer must enroll in E-verifyEmployer must enroll in E-verify

See www.uscis.gov/E-VerifySee www.uscis.gov/E-Verify

Many already enrolled, required by law in some states, but Many already enrolled, required by law in some states, but some may refuse, so discuss with employersome may refuse, so discuss with employer

The Bridge Stops HereThe Bridge Stops Here

Unemployment may lead to violation of statusUnemployment may lead to violation of status

○ Allowed 90 days unemployment during initial period of OPT Allowed 90 days unemployment during initial period of OPT

○ Those with STEM extension allowed cumulative total of 120 days of Those with STEM extension allowed cumulative total of 120 days of unemployment during initial and extension periodunemployment during initial and extension period

○ SEVP says paid or unpaid employment of at least 20 hours per week SEVP says paid or unpaid employment of at least 20 hours per week suffices, it may be with more than one employer, but unpaid does suffices, it may be with more than one employer, but unpaid does not suffice during STEM extension. Volunteer!not suffice during STEM extension. Volunteer!

○ SEVP says self-employment, independent contractor work, or SEVP says self-employment, independent contractor work, or through agency or consulting firm are acceptable, but not on STEMthrough agency or consulting firm are acceptable, but not on STEM

○ Allowed up to 10 days off between jobsAllowed up to 10 days off between jobs

○ Time outside U.S. does not count as unemployment if you are Time outside U.S. does not count as unemployment if you are employed before leaving U.S.employed before leaving U.S.

○ This is current guidance from SEVP and could change, so get This is current guidance from SEVP and could change, so get advice from your ISA!advice from your ISA!

So Called “cap gap” OPTSo Called “cap gap” OPTIn order to assist students caught by the H1B In order to assist students caught by the H1B quota, USCIS in April 2008, created so called quota, USCIS in April 2008, created so called “cap gap” protection which automatically “cap gap” protection which automatically extends OPT and DS through September 30 of extends OPT and DS through September 30 of any year, if:any year, if:– The student’s employer properly filed an H1B The student’s employer properly filed an H1B

petition on his/her behalf prior to the expiration of petition on his/her behalf prior to the expiration of his/her OPT;his/her OPT;

– The H1B petition shows a start date of October 1.The H1B petition shows a start date of October 1.– Cap gap OPT ends October 1.Cap gap OPT ends October 1.In order to fully document the “cap gap”, the In order to fully document the “cap gap”, the student should seek a “cap gap” I 20 from the student should seek a “cap gap” I 20 from the school.school.

The Next Step: H1BThe Next Step: H1BH1B is the principal immigration status H1B is the principal immigration status available for persons temporarily working available for persons temporarily working in professional level jobs (“specialty in professional level jobs (“specialty occupations”) in the US.occupations”) in the US.It generally requires that the employee It generally requires that the employee have at least a four year degree or have at least a four year degree or equivalent AND equivalent AND that the position require a that the position require a minimum of a bachelor’s degree.minimum of a bachelor’s degree.So, for example, engineer, accountant, So, for example, engineer, accountant, yes; store clerk, cook, secretary, no.yes; store clerk, cook, secretary, no.

What Are the Other Parameters of What Are the Other Parameters of the H1B?the H1B?

Employment is limited to the employer(s) who Employment is limited to the employer(s) who petition(s) for the student. May hold more than petition(s) for the student. May hold more than one H1B at same time. H1B may be part time.one H1B at same time. H1B may be part time.Employment is generally limited to six years with Employment is generally limited to six years with ALL employers (unless employment-based ALL employers (unless employment-based permanent residence begun by end of 5permanent residence begun by end of 5thth year). year).Employment must be directly related to degree Employment must be directly related to degree program—either current program or any prior program—either current program or any prior degree program.degree program.H1B’s are limited by strict fiscal year quotas. H1B’s are limited by strict fiscal year quotas. Federal FY = 10/1 to 9/30.Federal FY = 10/1 to 9/30.The H1B beneficiary may have “dual intent”.The H1B beneficiary may have “dual intent”.

What Are the Employer’s What Are the Employer’s Obligations?Obligations?

Must agree to employ beneficiary as set out in Must agree to employ beneficiary as set out in the petition (no fraud!).the petition (no fraud!).Must need the services of the employee (no Must need the services of the employee (no uncles with corner stores!).uncles with corner stores!).Must agree to pay higher of Must agree to pay higher of actualactual or or prevailingprevailing wage.wage.– Actual wage: wage paid to other similarly employed and Actual wage: wage paid to other similarly employed and

similarly qualified workers at same worksite.similarly qualified workers at same worksite.– Prevailing wage: weighted mean or median wages for Prevailing wage: weighted mean or median wages for

similar positions in geographic area of employment.similar positions in geographic area of employment.– Basically, this means that a Basically, this means that a competitive competitive wage must be wage must be

offered.offered.– There are four levels of wages and separate wage data There are four levels of wages and separate wage data

for higher ed and certain other employers. See:for higher ed and certain other employers. See:www.flcdatacenter.com/oeswizardstart.aspxwww.flcdatacenter.com/oeswizardstart.aspx

Employer’s Obligations?Employer’s Obligations?Must be no strike or lockout (unionized Must be no strike or lockout (unionized jobs).jobs).Must notify other workers of terms of job Must notify other workers of terms of job (two 10 day postings or letter to union).(two 10 day postings or letter to union).Must agree to pay certain fees to USCIS:Must agree to pay certain fees to USCIS:– ACWIA fee: $1500; $750 if 25 or fewer FT ACWIA fee: $1500; $750 if 25 or fewer FT

employees.employees.Exemptions: K-12 schools, higher ed, affiliated Exemptions: K-12 schools, higher ed, affiliated entities, teaching hospitals, non profit entities, teaching hospitals, non profit research research organizationsorganizations and government and government research research organizations.organizations.

– Anti fraud fee: $500. No one exempt.Anti fraud fee: $500. No one exempt.

Employer’s Obligations?Employer’s Obligations?

Must agree to employ H1B only in Must agree to employ H1B only in geographic location(s) set out in geographic location(s) set out in labor condition application.labor condition application.

Must agree to pay return Must agree to pay return transportation to country of transportation to country of nationality if H1B terminated before nationality if H1B terminated before end of visa petition approval (but not end of visa petition approval (but not enforceable).enforceable).

What Are the Fees?What Are the Fees?

Regular filing fee: $320Regular filing fee: $320

Filing fee for dependants: $300Filing fee for dependants: $300

Premium fee: $1000 [15 day Premium fee: $1000 [15 day turnaround]turnaround]

Fraud fee: $500Fraud fee: $500

ACWIA fee: $1500 or $750ACWIA fee: $1500 or $750

Attorney’s fees: Attorney’s fees: vary widely: no vary widely: no standard amount.standard amount.

Who Pays for What?Who Pays for What?There is no hard and fast rule.There is no hard and fast rule.Usually larger companies are more Usually larger companies are more willing to pay. willing to pay. May depend on your bargaining power May depend on your bargaining power (your skill set, employer need).(your skill set, employer need).The employee may pay everything The employee may pay everything except the ACWIA fee ($750 or $1500), except the ACWIA fee ($750 or $1500), unless:unless:– Paying any or all of the fees would push the Paying any or all of the fees would push the

employee below the required wage.employee below the required wage.

Who Pays: An ExampleWho Pays: An ExampleShiva is offered $46K as a Shiva is offered $46K as a mechanical engineer.mechanical engineer.The prevailing wage (level 1) is $42K The prevailing wage (level 1) is $42K for the county where he is to workfor the county where he is to workwww.flcdatacenter.com/oeswizardstart.aspxEmployer pays the ACWIA fee; wants Employer pays the ACWIA fee; wants Shiva to pay attorney’s and other Shiva to pay attorney’s and other fees (total $5K). Can he?fees (total $5K). Can he?

What’s Filed and When?What’s Filed and When?First is Labor Condition Application. Filed electronically First is Labor Condition Application. Filed electronically with Department of Labor. Takes about five to ten with Department of Labor. Takes about five to ten business days to be approved.business days to be approved.Next is H1B Petition, together with LCA, evidence of Next is H1B Petition, together with LCA, evidence of qualifications, and description of job, filed at either VT qualifications, and description of job, filed at either VT or CA Service Center of USCIS, depending on place of or CA Service Center of USCIS, depending on place of employment, or CA if quota exempt.employment, or CA if quota exempt.If employee maintaining lawful status in US, status is If employee maintaining lawful status in US, status is changed to H1B, along with family members.changed to H1B, along with family members.If outside US, or traveling following change of status, If outside US, or traveling following change of status, must obtain H1B visa at US consulate, unless going for must obtain H1B visa at US consulate, unless going for 30 days or less to Canada/Mexico.30 days or less to Canada/Mexico.

The Magic ApprovalThe Magic ApprovalProcessing of the H generally takes three Processing of the H generally takes three to four months. Fifteen day to four months. Fifteen day premium premium processingprocessing is available for $1K; PP also is available for $1K; PP also guarantees easier communication with guarantees easier communication with USCIS via phone/email.USCIS via phone/email.Once approved, the H employee may Once approved, the H employee may “port” to a new employer once that “port” to a new employer once that employer employer files files a new petition. Approval of a new petition. Approval of new petition is not necessary to “port”. new petition is not necessary to “port”. BEWARE: “porting” is difficult if you have BEWARE: “porting” is difficult if you have not been counted against the quota.not been counted against the quota.

Any Pitfalls?Any Pitfalls?

Horrible quota problems in prior Horrible quota problems in prior years!years!– Currently H1B’s are limited to about Currently H1B’s are limited to about

78,200 per fiscal year.78,200 per fiscal year.~58,200 for those with no US earned ~58,200 for those with no US earned

Master’s.Master’s.--20,000 for those with US earned --20,000 for those with US earned

Master’s or higher.Master’s or higher.~6,800 reserved for H1B1 for citizens of ~6,800 reserved for H1B1 for citizens of

Chile, Singapore.Chile, Singapore.

Quota StatisticsQuota StatisticsIn 2008, USCIS accepted H petitions for five business In 2008, USCIS accepted H petitions for five business days beginning April 1 and all cases received put into days beginning April 1 and all cases received put into a lottery.a lottery.All 78,200 numbers were exhausted. All 78,200 numbers were exhausted. In 2009: same system, but about 20,000 visas left at In 2009: same system, but about 20,000 visas left at end of process. end of process. Both regular and Master’s quotas exhausted 12/21/09.Both regular and Master’s quotas exhausted 12/21/09.If you missed this quota, next application date is If you missed this quota, next application date is 4/1/2010. If OPT expires prior to April 1 and not 4/1/2010. If OPT expires prior to April 1 and not eligible for STEM, no work authorization until eligible for STEM, no work authorization until 10/1/2010.10/1/2010.If OPT expires after 4/1/09, then you get “cap gap If OPT expires after 4/1/09, then you get “cap gap protection as long as the H is filed before OPT protection as long as the H is filed before OPT expiration.expiration.Hopefully permanent relief from quota insanity will Hopefully permanent relief from quota insanity will come from Congress in 2010.come from Congress in 2010.

Who’s Exempt from Quota?Who’s Exempt from Quota?Exempt from the quota are Exempt from the quota are – persons persons already counted against it within past six already counted against it within past six

years.years.– persons who work in higher ed and affiliated persons who work in higher ed and affiliated

nonprofit entities.nonprofit entities.– Those who work “at” rather than for a quota Those who work “at” rather than for a quota

exempt employerexempt employer– Employees of non profit Employees of non profit researchresearch and government and government

researchresearch organizations. organizations.– J 1 physicians granted a waiver of the two year J 1 physicians granted a waiver of the two year

home residence requirement under “Conrad” home residence requirement under “Conrad” program. program.

– Note that most govt. entities and non profits are Note that most govt. entities and non profits are NOT exempt from quotas.NOT exempt from quotas.

– Persons engaged in concurrent quota exempt/quota Persons engaged in concurrent quota exempt/quota subject jobs also exempt.subject jobs also exempt.

Careful, Careful Careful, Careful Many beginning positions in business and IT do not Many beginning positions in business and IT do not require a degree: eg, sales, management trainee require a degree: eg, sales, management trainee slots, data entry operator.slots, data entry operator.Many entry level jobs pay partly or solely on Many entry level jobs pay partly or solely on commission. Commission or sales bonuses generally commission. Commission or sales bonuses generally cannot be included in the wage computation.cannot be included in the wage computation.Beware of “make work” or make believe jobs from Beware of “make work” or make believe jobs from friends or relatives. Pay stubs, W 2’s will be required friends or relatives. Pay stubs, W 2’s will be required when you go abroad for visa issuance, apply for future when you go abroad for visa issuance, apply for future immigration benefits!immigration benefits!Also beware of fly-by-night companies which may Also beware of fly-by-night companies which may “bench” you until they place you in a job.“bench” you until they place you in a job.Paying a company to file for you when you have no Paying a company to file for you when you have no intention of working for them is intention of working for them is FRAUDFRAUD—can —can jeopardize your future in the US.jeopardize your future in the US.Startups, financially troubled businesses, and those Startups, financially troubled businesses, and those that take a tax loss each year will NOT be able to that take a tax loss each year will NOT be able to sponsor for permanent residence!sponsor for permanent residence!

Does This Job Really Require a Does This Job Really Require a Degree?Degree?

Complexity of job:Complexity of job:Does the job require the Does the job require the application of theoretical and practical knowledge application of theoretical and practical knowledge typically acquired in a relevant four year degree typically acquired in a relevant four year degree program?program?Employer reqts:Employer reqts: Has the employer consistently Has the employer consistently required a minimum of a Bachelor’s in particular required a minimum of a Bachelor’s in particular major(s) for position? Or is the requirement major(s) for position? Or is the requirement simply an employer preference? Or is the simply an employer preference? Or is the employer simply making up the requirement to employer simply making up the requirement to get you an H1B?get you an H1B?Other, similar:Other, similar: What are industry standards for What are industry standards for this type of job? Check ads on internet, DOL’s this type of job? Check ads on internet, DOL’s Occupational Outlook HandbookOccupational Outlook Handbook..$$$$:$$$$: Is the salary commensurate with a Is the salary commensurate with a professional-level position?professional-level position?

Employers’ Many MisconceptionsEmployers’ Many Misconceptions

Employer believes that it must Employer believes that it must recruit, prove American workers not recruit, prove American workers not available, or prove that student is available, or prove that student is exceptional, special, or unique in exceptional, special, or unique in order to sponsor.order to sponsor.

FALSE: No recruitment required. FALSE: No recruitment required. Special qualities not required. Two Special qualities not required. Two ten day postings or letter to union ten day postings or letter to union are for notification only. are for notification only.

Dumb and DumberDumb and DumberEmployer thinks the process “will get them Employer thinks the process “will get them in trouble with immigration” (not unless in trouble with immigration” (not unless they have otherwise shady practices or lie they have otherwise shady practices or lie in the paperwork).in the paperwork).Employer doesn’t want to reveal financial Employer doesn’t want to reveal financial information to USCIS: in the H1B context information to USCIS: in the H1B context financial info almost never needed. If so, financial info almost never needed. If so, does not have to be revealed to employee.does not have to be revealed to employee.Employer thinks they have to pay legal Employer thinks they have to pay legal fees (not unless this would push employee fees (not unless this would push employee below required wage).below required wage).

We’re So VainWe’re So VainEmployer thinks “it’s too much trouble, Employer thinks “it’s too much trouble, paperwork” (a few signatures, two ten day paperwork” (a few signatures, two ten day postings, no advertising; attorney can postings, no advertising; attorney can simplify process).simplify process).Employer worries about posting the Employer worries about posting the employee’s wage (post a range!).employee’s wage (post a range!).Employer feels they receive enough Employer feels they receive enough resumes from US workers; no need to resumes from US workers; no need to apply for a foreigner (didn’t they ever hear apply for a foreigner (didn’t they ever hear of the immigrant work ethic?; try to of the immigrant work ethic?; try to identify immigrants within the company).identify immigrants within the company).

Too Many LawyersToo Many LawyersEmployer worries that sponsorship may Employer worries that sponsorship may constitute contract of employment (no, but constitute contract of employment (no, but if they’re worried, do a memo of if they’re worried, do a memo of understanding both sign).understanding both sign).Employer worries that employee is later Employer worries that employee is later going to ask for PR and leave the company going to ask for PR and leave the company –they’ve been burned before (Sign a “one –they’ve been burned before (Sign a “one way” contract; employee has to repay way” contract; employee has to repay legal fees if leaves before a certain date; legal fees if leaves before a certain date; but employer retains right to “employ at but employer retains right to “employ at will”).will”).

Fine, If You’re FreeFine, If You’re FreeEmployer doesn’t want to pay ACWIA Employer doesn’t want to pay ACWIA and fraud fees and wants employee to and fraud fees and wants employee to pay them.pay them.

– There are penalties for employee There are penalties for employee payment of ACWIA fee.payment of ACWIA fee.

– No apparent penalty for employee paying No apparent penalty for employee paying fraud fee.fraud fee.

These fees are less than what the These fees are less than what the employer would pay a recruiter.employer would pay a recruiter.Remember, you can pay fees that Remember, you can pay fees that would push your wage below would push your wage below “required” wage.“required” wage.

Let’s Make a DealLet’s Make a DealEmployer doesn’t want to pay required Employer doesn’t want to pay required wage and wants to have “side deal” with wage and wants to have “side deal” with employee to pay less or pay part in employee to pay less or pay part in commissions/bonuses.commissions/bonuses.– There are severe penalties, including back pay, There are severe penalties, including back pay,

fines up to $5000 per incident, and prohibition fines up to $5000 per incident, and prohibition from petitioning for any employment based from petitioning for any employment based nonimmigrant/immigrant for up to two years nonimmigrant/immigrant for up to two years for this practice.for this practice.

– Pay stubs, W 2’s are often requested at visa Pay stubs, W 2’s are often requested at visa interviews, and in connection with applications interviews, and in connection with applications for immigration benefits.for immigration benefits.

What About Starting My Own What About Starting My Own Business?Business?

To be an H1B employer, an entity usually To be an H1B employer, an entity usually must have at least one employee other than must have at least one employee other than the H1B.the H1B.Usually not a wise idea to start your own Usually not a wise idea to start your own business, unless you have loads of money business, unless you have loads of money (at least 500K to 1 million) or qualify for (at least 500K to 1 million) or qualify for investor visa (treaty).investor visa (treaty).Why not? Generally, business owners Why not? Generally, business owners cannot sponsor themselves for permanent cannot sponsor themselves for permanent residence.residence.Consider E or L instead of H (see below).Consider E or L instead of H (see below).

Are There Alternatives to the H?Are There Alternatives to the H?TN (Treaty NAFTA) for citizens of TN (Treaty NAFTA) for citizens of Canada and Mexico only. Occupations Canada and Mexico only. Occupations listed at 8 Code of Federal Regulations listed at 8 Code of Federal Regulations Sec. 214.6(c) generally require a Sec. 214.6(c) generally require a minimum of Bachelor’s degree. But minimum of Bachelor’s degree. But MBA’s beware: “Management MBA’s beware: “Management Consultant” is carefully scrutinized; Consultant” is carefully scrutinized; generally must be independent generally must be independent contractor. TN given in three year contractor. TN given in three year increments; requires residence abroad increments; requires residence abroad (no dual intent).(no dual intent).

Other Alternatives?Other Alternatives?H1B1 visa for Chile, Singapore: very similar to H1B1 visa for Chile, Singapore: very similar to normal H1B, except granted in one year normal H1B, except granted in one year increments, requires residence abroad (no dual increments, requires residence abroad (no dual intent).intent).E 3 for Australian citizens; again very similar to E 3 for Australian citizens; again very similar to H1B; minimum Bachelor’s, dual intent ok; H1B; minimum Bachelor’s, dual intent ok; spouses may work.spouses may work.H-3 trainee. 2 yrs max; training must be for job H-3 trainee. 2 yrs max; training must be for job abroad.abroad.J-1 trainee. 18 mo. max; looser than H 3, but J-1 trainee. 18 mo. max; looser than H 3, but many J sponsors will not sponsor if you are in US.many J sponsors will not sponsor if you are in US.J-1 professor/researcher or K-12 teacher.J-1 professor/researcher or K-12 teacher.O-1 alien of extraordinary ability/achievement.O-1 alien of extraordinary ability/achievement.

H Alternatives?H Alternatives?E 1/E 2: if your country of nationality has an E 1/E 2: if your country of nationality has an trader/investor treaty with US, investment of as trader/investor treaty with US, investment of as little as 50K in a job-creating business can mean little as 50K in a job-creating business can mean a visa for life, work permit for spouse.a visa for life, work permit for spouse.L 1A/L 1B: if you were employed by a company L 1A/L 1B: if you were employed by a company abroad for at least a year before coming to the abroad for at least a year before coming to the US, and they wish to employ you in US; work US, and they wish to employ you in US; work permit for spouse.permit for spouse.R-1: possible if job offer has a significant religious R-1: possible if job offer has a significant religious component.component.B-1 business visitor: only possible if employed B-1 business visitor: only possible if employed outside US, no remuneration in US except outside US, no remuneration in US except expenses, and product/service is made/rendered expenses, and product/service is made/rendered outside US. VERY LIMITED UTILITY.outside US. VERY LIMITED UTILITY.

Routes to Permanent Routes to Permanent ResidenceResidence

Employment-basedEmployment-basedFamily-basedFamily-based

– U.S. citizen or permanent resident spouseU.S. citizen or permanent resident spouse

– USC or PR parent; USC child over 21; USC siblingUSC or PR parent; USC child over 21; USC sibling– Long waits for all but spouse of USC or parent of USC Long waits for all but spouse of USC or parent of USC

child over 21.child over 21.

AsylumAsylumDiversity Visa LotteryDiversity Visa LotteryLarge InvestmentLarge InvestmentSpecial ProgramsSpecial ProgramsRemoval ProceedingsRemoval Proceedings

Employment-Based PREmployment-Based PRMust have a permanent, full-time jobMust have a permanent, full-time job– Or pursue “extraordinary” routeOr pursue “extraordinary” route– Or pursue “national interest waiver” routeOr pursue “national interest waiver” route

DOL labor certification process requires employer to show that DOL labor certification process requires employer to show that there are no qualified U.S. workers willing to take the jobthere are no qualified U.S. workers willing to take the job

Labor certification process very burdensome, but quicker with the Labor certification process very burdensome, but quicker with the relatively new PERM systemrelatively new PERM system

H-1B gives you 6 years to work this out, but START EARLY H-1B gives you 6 years to work this out, but START EARLY because it can take several years to get the “green card”because it can take several years to get the “green card”– University/college teachers get special benefit by having labor University/college teachers get special benefit by having labor

certification application filed within 18 months of job offercertification application filed within 18 months of job offer

Again, how you approach this depends on the situationAgain, how you approach this depends on the situation– Some employers handle or pay, others don’t (must pay LC costs)Some employers handle or pay, others don’t (must pay LC costs)– Consider negotiatingConsider negotiating– You can try several routes, even at the same timeYou can try several routes, even at the same time

StepsSteps

1. Labor certification1. Labor certification

Employer advertises position to “test the labor market” Employer advertises position to “test the labor market” – Several forms of advertisement requiredSeveral forms of advertisement required

Employer files application through PERM system (online)Employer files application through PERM system (online)

DOL approves, denies, or auditsDOL approves, denies, or auditsEmployer must pay attorney’s fees and ad costs.Employer must pay attorney’s fees and ad costs.

2. Employer files immigrant petition (I-140) with USCIS2. Employer files immigrant petition (I-140) with USCIS

3. Employee files Adjustment of Status Application (I-485) with USCIS3. Employee files Adjustment of Status Application (I-485) with USCIS

Must have current “priority date” on Visa Bulletin to fileMust have current “priority date” on Visa Bulletin to file– Some categories/countries backlogged, queues of several yearsSome categories/countries backlogged, queues of several years

If “current,” may file petition and application together (“concurrent filing”)If “current,” may file petition and application together (“concurrent filing”)

Can apply for EAD and advance parole “travel document” with adjustment Can apply for EAD and advance parole “travel document” with adjustment applicationapplication

Spouse and unmarried minor children can file AOS at same timeSpouse and unmarried minor children can file AOS at same time

– After Adjustment of Status application has been pending for 180 After Adjustment of Status application has been pending for 180 days, you can move to “same or similar employment” with a new days, you can move to “same or similar employment” with a new employer without having to start all overemployer without having to start all over

Finding an Immigration AttorneyFinding an Immigration AttorneyDiscuss with your employerDiscuss with your employer

Ask friends, your school, and others for referencesAsk friends, your school, and others for references

Probably a good idea to beware of those whoProbably a good idea to beware of those who

– Claim to be experts in immigration and other areas (divorce, injuries, etc.)Claim to be experts in immigration and other areas (divorce, injuries, etc.)

– Have little or no experience with students (you are subject to complex rules)Have little or no experience with students (you are subject to complex rules)

– Offer a guaranteed result or offer to charge you only if they are successfulOffer a guaranteed result or offer to charge you only if they are successful

– Will not agree to a “flat fee” (unless your case is unusual or complex)Will not agree to a “flat fee” (unless your case is unusual or complex)

– Are not familiar to anyone else, especially your advisorAre not familiar to anyone else, especially your advisor

– Are unusually cheap or promise results different from other lawyers you consultAre unusually cheap or promise results different from other lawyers you consult

– Who ask you to sign things that are not true, or without reading them first (fraud Who ask you to sign things that are not true, or without reading them first (fraud carries permanent and possibly criminal penalties)carries permanent and possibly criminal penalties)

– Who don’t call you back or don’t send you copies of their work on your behalfWho don’t call you back or don’t send you copies of their work on your behalf

– Are of interest to you Are of interest to you onlyonly because they speak your language or are from your because they speak your language or are from your countrycountry

– Are of interest to you Are of interest to you onlyonly because they have an office near you because they have an office near you

QUESTIONS?QUESTIONS?

¿Preguntas?¿Preguntas?Domande?Domande? Fragen?Fragen?Qüestiós?Qüestiós?Vragen?Vragen?

Perguntas?Perguntas?

Post Graduate Employment Post Graduate Employment Options: Clearing All The Options: Clearing All The

HurdlesHurdlesPresented by:Presented by:

David A.M. Ware, attorney at lawDavid A.M. Ware, attorney at lawwww.david-ware.com. . dware@david-ware.com

800 537 0179800 537 0179National Practice with Offices Across the Gulf SouthNational Practice with Offices Across the Gulf South