Pursuing Work Authorization and Permanent Residence After Leaving the University

Melissa Harms

UC Davis

May 20, 2015

Basic Immigration Terms

Non-immigrant: Foreign national approved for temporary entry into the U.S. for a specific purpose

Immigrant: Foreign national approved for lawful permanent residence in the U.S.

Visa: Travel document issued by a U.S. Consulate or Embassy abroad that allows a foreign national to apply for admission at a U.S. port of entry

Status: Period of authorized stay, as indicated on the Form I-94

H-1B Flowchart

File Labor Condition Application with DOL

(7 day processing)

File H-1B petition with USCIS

(4-6 months processing or 15 days for extra $1,225)

Change of Status

H-1B effective on or after October 1

Consular Processing

Interview Scheduled at U.S. Consulate/Embassy

H-1B Status

6 years of status (with limited exceptions) 3 years + 3 year extension Position must be in “specialty occupation” and require a baccalaureate

degree Foreign national must possess the required degree or equivalent Allows for dual intent-immigrant intent Family members – H4: Allowed to go to school but cannot work H-1B audits are common

H-1B Status

Position and employer specific Can be for part-time or concurrent employment Not for independent contractor Portability: Once in H-1B status can transfer employers once petition with

new employer filed and received. Do not need to wait for decision on petition.

Note: If going from cap-exempt to cap-subject employer, must apply for visa number

H-1B Numerical Cap

65,000 new H-1B “numbers” per year

20,000 additional H-1B numbers for holders of U.S. Master’s degree or higher degree

Cap opens up on April 1

Cap reached on April 1-5, 2015; April 1-5, 2014; April 1-5, 2013; June 11, 2012; January 26, 2011. This year, 240,000 applications received for 85,000 numbers.

Normally, visas gone immediately, and lottery held for available slots

H-1B Numerical Cap: Who is Not Subject?

Institution of Higher Education

Affiliated Non-Profit Entity: Associated with an institution of higher education, through shared ownership or control or attached as a branch, cooperative, or subsidiary

Non-profit research organization or governmental research organization

Individuals who previously held H-1B status

Individuals currently in H-1B status

© 2012 CPG Immigration Law Group

H-1B Labor Condition Application

Employer attests that it will pay higher of the prevailing wage or the actual wage

Prevailing wage = market wage as determined by DOL or wage source accepted by DOL

Actual wage = the wage that is actually being paid to similarly situated workers

Must pay actual wage if more than prevailing wage Employer attests that it will provide same working conditions to foreign

worker as to U.S. worker Employer must provide notice of the LCA to other employees LCA takes 7 calendar days to process

H-1B Visa: Filing Fees

REQUIRED OF ALL PETITIONS

$325 application fee $500 USCIS Fraud Fee

IF FEWER THAN 26 EMPLOYEES

$750 - ACWIA IF 26 OR MORE EMPLOYEES

$1500 – ACWIA

*OPTIONAL $1,225 TO PREMIUM PROCESS IN 15 DAYS

Preparing the H-1B Petition

After LCA is certified, file petition

H-1B petition filed with the USCIS

Regular processing 4 – 5 months

Premium processing in 15 days by paying USCIS an additional $1,225

Once approved, USCIS issues Form I-797 approval notice and either change of status or consular processing

Change of Status or Consular Processing

Change of Status Consular Processing

File petition with USCIS File petition with USCIS

Stay in US (BEWARE: departing US while petition is pending can result in denial)

Receive approval

Receive approval Depart US

Status change goes into effect on requested date

Take original approval notice to interview at US Consulate

If travel abroad, must obtain visa at US Consulate

Obtain visa

Re-enter US

H-1B Status

Employer must pay H-1B wage within 30 days of employee’s entry into U.S. or 60 days if a change of status application

Must apply for visa at U.S. Consulate abroad once travel abroad if change of status. Make sure to check processing times as delays are common.

Must notify USCIS of any address changes within 10 days

If terminated, there is no grace period and fall out of status upon termination

Employer is required to pay return transportation back to home country if terminated prior to H-1B expiration date

Cap Gap Regulation

Allows F-1 students to remain in the U.S. and continue to work on their OPT if a timely-filed H-1B petition remains pending or has been granted by the USCIS.

Applies to all F-1 students who are successful under the H-1B lottery and have a pending or approved H-1B petition.

H-1B must be approved by September 30 or employment must stop.

17 Month Extension of OPT

Students on OPT can extend that period by up to 17 months (for a maximum total period of 29 months of OPT) if the student received a degree in science, technology, engineering, or mathematics (STEM).

Only available to STEM degree students who have accepted employment with an employer registered and in good standing with USCIS’ E-Verify employment verification program.

E-Verify is an internet based system that verifies the work authorization of employees

OPT Dates and H-1B Submission

OPT Expiration When to apply for H-1B Special Notes

October 2014 – March 2015

April 2014 Lose some of OPT time

April 2015– September 2015

April 2015 Will need to work under H-1B gap cap from OPT expiration until 09/30/2015

October 2015– March 2016

April 2015 Lose some of OPT time

Advantages to H-1B and OPT

OPT H-1B

May work for any employer as long as related to field of study

Allowed a total of six years (with further extensions possible)

Allowed 90 days of unemployment Can start permanent residency process

No employer sponsorship required Counted once in H-1B “numbers”

Can be unpaid (note STEM OPT must be paid employment)

Must be paid the prevailing wage

Can be independent contractor Must be an employee and receive same benefits as other employees

Other Non-Immigrant Visas

Visa classification General requirements

TN Canadians or Mexicans are eligible for TN status for a position designated in NAFTA. Schedule 2 of NAFTA identifies the requirements for each position. Can be issued in 3 year increments.

L-1AL-1B

Intra-company transferee. (Manager or Executive) or (Specialized Knowledge). Must work abroad for one year within the last 3 years with overseas employer before transferring to U.S. Must be employed as a manager or executive (L-1A). May apply for permanent residency without going through labor certification process. Limited to 7 years in L-1A status and 5 years in L-1B status.

O-1 Persons of extraordinary ability in the arts and entertainment, athletics, sciences, business and education. No numerical quota. Initial visa for 3 years and renewable annually indefinitely.

Other Non-Immigrant Visas (cont’d)

Visa classification General requirements

J-1 Cultural exchange visa. Used for trainees, research scholar, short-term scholars, or specialists. Limits vary according to type of program. Beware – some individuals will be subject to two-year return requirement.

E-1/E-2 Treaty Trader/Treaty Investor: open to countries with treaties with US. Business must conduct substantial trade with US or there must be an investment in a US enterprise that is not “marginal”

E-3 Visa for Australian nationals. Similar to H-1B visa as position must require a Bachelor’s degree and foreign national must possess a Bachelor’s degree. Renewable indefinitely. Cap of 10,500 per year.

Sponsorship for Permanent Residency

Labor certification Non-labor certification

• Employer recruits and must prove a shortage of minimally qualified American workers to fill the position

• PERM process

• File with Department of Labor

• Outstanding Researcher

• Extraordinary Ability

• National Interest Waiver

• Multi-National Executive or Manager

• Diversity Lottery

• Investor

• Religious Worker

Permanent Residency Flowchart

PERM

Immigrant Visa Petition (I-140)

Wait for Visa Availability

Adjustment of Status (I-485)

EAD/AP

Consular Processing

Interview Scheduled at U.S. Consulate/Embassy

Green card Sponsorship: PERM

Test the labor market to prove no qualified U.S. worker through newspaper ads, state workforce job posting, internal job posting, online job boards, external online posting, company website, etc.

Recruitment for 60 – 180 day period

Earliest can file with Department of Labor (“DOL”) is 30 days AFTER last form of recruitment (i.e. last recruitment placed on 03/1/2012, can file any time after 04/01/2012)

Online filing, audit-based (like tax return)

Processing times (no audit = 6 – 7 months; audit = 1.5 yrs)

Once PERM pending more than 365 days AND PERM filed at least 1 year prior to H-1B max out date, can renew H-1B in 1 year increments

I-140 Petition

Once PERM application approved, file I-140 immigrant petition with the United States Citizenship and Immigration Services (“USCIS”)

Prove company can pay offered salary

Prove employee’s qualifications for position

Standard processing time is 5 – 6 months

Can premium process in 15 calendar days by paying $1,225 government filing fee

Can file concurrently with I-485 (Step 4) if visa available under Department of State Visa Bulletin

Once I-140 approved, can renew H-1B in 3 year increments while waiting for visa availability

Visa Availability - Visa Bulletin

Published monthly by the Department of State (www.travel.state.gov)

140,000 employment based immigrant visa numbers available on October 1

Limited numbers available for each preference category and for each country each year

Each month Department of State determines how many immigrant visas were used worldwide and publishes a “cut-off date” in the Visa Bulletin

Backlogs occur when the number of immigrant visas filed exceeds the number of immigrant visas available

Previously current dates on the Visa Bulletin may go backwards, or categories may become “Unavailable”

June 2015 Visa Bulletin

Priority Date is the date PERM was filed with the DOL

Country of Chargeability is applicant or spouse’s country of birth

Category (1, 2 or 3) is determined by position requirements AND employee’s qualifications

Employment-Based

All Other Chargeability Areas Except Those Listed

China India Mexico Philippines

1st Current Current Current Current Current

2nd Current 01Jun13 01Oct08 Current Current

3rd 15Feb15 01Sep11 22Jan04 15Feb15 01Jan05

Outstanding Researcher I-140

First Preference visa petition Sponsored by employer Requirements:

The individual must hold a tenured, or tenure-track faculty position at an university or institution of higher learning or have a comparable permanent job offer at such establishment; OR a comparable job offer at a private company with documented accomplishments in the academic field which employs three full-time research personnel; and

The individual must have at least three years prior teaching or research experience in the field.

Meet two of statutory criteria

Criteria for Outstanding Researcher

Receipt of major prizes or awards for outstanding achievements in the academic field;

Membership in associations in the academic field which require outstanding achievements of their members;

Published material in professional publications written by others about the alien’s work in the academic field;

Participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

Original scientific or scholarly research contributions to the academic field; or

Authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

National Interest Waiver I-140

Second Preference Visa Petition Self-sponsored petition Requirements:

Advanced degree or exceptional ability; The individual’s work must be of “substantial intrinsic merit;” The proposed benefits of the individual’s work must be “national

in scope;” and The individual’s past record of achievement must demonstrate

that he or she will prospectively benefit the national interest to a substantially greater degree than would an available US worker having the same minimum qualifications.

I-485 or Consular Processing

Beneficiaries can file for AOS or Consular processing only when a visa is available

– When preference category and country of chargeability in Visa Bulletin is “Current,” or

– When cut-off date in Visa Bulletin for preference category and country of chargeability is on or before the Priority Date

CONSULAR PROCESSING

If consular processing, National Visa Center will issue documents needed for immigrant visa interview overseas

Once Priority Date is current, U.S. consulate will schedule interview

ADJUSTMENT OF STATUS (I-485)

Once Priority Date is current, submit I-485 with USCIS

Apply for work permit and travel permit for spouse and children under 21 – work permit valid for 2 years if I-140 approved; I-131 valid for 1 year

Can be approved in 4-6 months if visa available current

© 2012 Law Office of Melissa Harms

Three steps to the process: Establishing the Relationship—Immigrant Relative Petition (I-130) Obtaining Permanent Residence:

In US: Adjustment of Status Outside US: Consular Processing

Visa Availability & Priority Dates Immediate Relatives: no wait for visa--may “one step” Preference Relatives & priority dates

Family Visa Processing

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© 2012 Law Office of Melissa Harms

Adjustment of Status Timeline for Family-Based Applications File I-485 and accompanying applications (I-765, I-131, I-864) with National

Benefits Center (immediate relative can also file Form I-130)

Attends biometrics appointment 4-6 weeks after filing

EAD and Advanced Parole generally 60-90 days

Interview scheduled within 4 months of filing

Green card arrives 2-4 weeks later via mail

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F-1/M-1/J-1 and the Permanent Residency Process

F-1/J-1 require strict non-immigrant intent: Filing I-130 establishes immigrant intent

DSOs should not terminate SEVIS record if student maintaining F-1 status

Recommend maintaining F-1 status while AOS is pending

No travel after I-130 filed unless using advance parole

Timing of AOS filing is very important: Recommend 60 days after F-1 entry to avoid presumption of immigrant intent

J-1 two year return requirement: Marriage to a US citizen does not excuse two year return requirement and must obtain necessary waivers

Strategy Issues

Research employer’s policies regarding sponsorship

Permanent residency—start planning early

Seek legal advice early in the process to assist your planning

Plan graduation date/OPT with H-1B in mind

Questions or Comments?

Melissa Harmsmharms@harms-law.com

700 Larkspur Landing Circle, Suite 199

Larkspur, California 94939 415.945.9600 (Phone)

415.651.9602 (Fax)