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Immigration Immigration A Guide to

VIEWS: 163 PAGES: 34

A Guide to Work after
         By: Miller Mayer, LLP
         202 E. State Street, Suite 700
         Ithaca, NY 14850
         (607) 273-4200

• Nonimmigrant visas
• Immigrant visas
    Nonimmigrant Visa Categories

•   A   Diplomats                      • N  Parents or children of special
•   B   Visitors (business/pleasure)        immigrants
•   C   Transit                        • O Persons of extraordinary ability
•   D   Crewman                        • P  Athletes or entertainers
•   E   Treaty trader/investors        • Q International cultural exchange
•   F   Academic students                   visitors
•   G   International Organization     • R  Religious workers
•   H   Temporary workers              • S  Federal witnesses (sneaky snitches)
•   I   Journalists/Media              • T  Trafficking of persons victims
•   J   Exchange visitors              • TN NAFTA professionals (Mexico and
•   K   Fiances/fiancees of
                                       • U  Certain crime victims
        US citizens
                                       • V  Certain spouses/children waiting for
• L     Intracompany transferees            green cards
• M     Vocational students
     H-1B Nonimmigrant Visas

• Employer sponsored for up to 6 years in a “specialty

• 3 Requirements:
  - Job must require a Bachelor’s degree or higher
  - Beneficiary must have at least the relevant Bachelor’s
   degree or equivalent
  - Employer must pay the prevailing wage
    Specialty Occupation Defined

• A job that requires:

   –    Highly skilled specialized knowledge
   _    Bachelor’s or higher degree in the specific specialty (or
        its equivalent)

• The degree must be in a specialty field:

   –    General degrees may be challenged
   –    Clear examples of H-1B jobs: accountant, scientist,
        computer science

• Employer must pay prevailing wage

• Overall processing time frame:
  • 3-6 months normally
  • Premium processing possibility: 2 weeks
          Advantages of H-1B:

    - up to 3 years initially, +3 more years, for 6 year maximum*
     - Eligible for another 6 years after 1 year stay outside U.S.
     - *extensions after 6th year if green card started by end of 5th

•   Time to work toward green card
•   No advertising or test of the U.S. labor market
•   H-1B portability when change employers
       Disadvantages of H-1B:

•   Tied to one employer; not flexible like F-1 OPT
•   Paperwork, cost and delay scare some employers
•   Fees:
     - $320 base fee
     - $750 retraining fee if employer has <25 employees;
       $1500 if >25 employees
     - $500 antifraud fee
     - $1000 premium processing fee (optional)
           Total: $1510-$3320 plus Legal Fee
    What is the H-1B “cap”?

• 65,000 per fiscal year
• Of 65,000, 6,800 carved out for Chile and
• Separate 20,000 for graduates with U.S.
  master’s degree or higher (since FY 2006)
         Race for H cap visas

• Quota year: October 1 to September 30
• Apply Earliest: April 1 (6 months)
• Past years’ H-1B quota filled:
   April 1 - August 10, 2005
   April 1 - May 29, 2006
   April 2, 2007 10:30 a.m.
   April 1-7, 2008
• USCIS conducts “lottery” to select cases to be
  considered for H-1B approval
         20,000 U.S. Master’s
• Defining receipt of degree
    -- May 30, 2007 VSC liaison minutes,
    “complete requirements for degree”
    -- inconsistent adjudication
•   Accredited U.S. institutions
•   All advance degrees included
•   FY2007 cap hit on July 26, 2006
•   FY 2008 cap hit on April 30, 2007
•   FY 2009 cap hit April 1 -7, 2008
       H-1B Cap Exemptions

•   College/university employees
•   Related or affiliated nonprofit entities
•   Nonprofit research organizations
•   Governmental research organizations
•   Those already counted against the quota
•   J-1 shortage area waivered doctors
  Moving from Exempt to Cap
      Subject Employer
• Subjects you to cap
• Concurrent employment: consider part-time
  with each job
• Pre October 1st portability (5-23-07
  Hernandez letter)
                        OPT Time-Line
Apply          60-day grace period
          Program end           7/26/08

                    You choose your
                     OPT start date       12 months OPT

                 Example: 7/24/08                         7/24/2009
      Apply up to 120 days
    before your chosen start
        date -- 90 days bf
    program end date and up
         to 60 days after.
                “Cap Gap” Regulation

Permits F-1 student working on OPT whose H-1B petition is selected for
H-1B adjudication to continue to work on OPT until H-1B is effective on
October 1.
                                                  July 24, 2009
                                              OPT expires, but “cap
                                                  gap” work

July 24, 2009                                                           October 1, 2009
                          April 1, 2009
 OPT starts                                                               H-1B work
                       H-1B filed, accepted                           authorization begins
                        for processing and
                       ultimately approved
                  Other NIVs

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

• L-1 multinational transferee
  • 12 months foreign employment
  • Executive, manager, specialized knowledge
  • Lower cost, green card, harsh adjudications
  • Spouse work permits
   Other NIVs continued (no quota no
           maximum stay)

•E-1/E-2: treaty traders/investors
 • Start/buy a company
 • 50+% foreign owned
 • Lead, direct, manage
 • No China, India; few ME or African

•O’s and P’s
 • Extraordinary ability or performer
 • Portfolio, c.v., reviews and publications
 • 3 of 8 criteria
                          O-1 Criteria
Eight criteria for classification:
1.   Receipt of a nationally or internationally recognized prize for achievement in
2.   Membership in associations in field that require “outstanding achievement” of
     their members
3.   Material published about applicant in major trade publications or other major
4.   Applicant serves as a judge of others in field either individually or on a panel
5.   Original, scientific, scholarly, artistic, athletic, or business-related contributions
     of major significance in field
6.   Authorship of scholarly articles in field
7.   Performing a critical or leading role for organizations that have a distinguished
8.   Commanding a high salary in field

•   Mexican/ Canadian citizens
•   Unlimited extensions of one year
•   Residence outside U.S.
•   Up to 3 years in job offer in listed occupation
•   bachelor’s degree/license in that field
•   See chapter 16 of NAFTA and 8 C.F.R. § 216.4
  Common TN Occupations

• Accountant           • Management
• Architect              consultant
• College/university   • Occupational therapist
  professor            • Registered nurse
• Computer systems     • Scientific technician
  analyst              • Social worker
• Engineer             • Urban planner
• Graphic designer
How Can I Become a US Permanent

 • Family-based

 • Employment-based
 • Diversity Lottery
     Family Relationship Basis
•   Immediate Relatives –children, spouses, or parents of US
    citizens (no limit per year)
•   Unmarried sons & daughters of US citizens (23,400 visas per
•   Spouses/minor children & unmarried sons and daughters of US
    permanent residents (114,200 visas per year)
•   Married sons and daughters of US citizens (23,400 visas per
•   Brothers and sisters of US citizens (65,000 visas per year)
•   US citizen must be age 21 or over
                   Employment Basis
Priority Workers (EB-1)                    Skilled & unskilled workers (EB-3)
•Extraordinary ability (no job required)   • Skilled workers in short supply
                                           • Professionals with baccalaureate
•Outstanding professors & researchers         degree
(entering for tenure or tenure-track       • Unskilled workers in short supply
position)                                     (requires a job offer and labor
•Business executives & managers (no           certification; limit of 40,000 visas
                                              per year)
labor certification required; limit of
40,000 visas per year                      Special Immigrants (EB-4)
                                           • Religious workers; certain US govt.
Advanced degree holders (EB-2)                employees; Panama Canal
                                              employees; plus certain dependent
•Professionals with advanced degrees          juveniles (10,000 visas per year)
•Exceptional ability in sciences, arts &
business (job offer and labor              •   Investors (EB-5)
certification required; limit of 40,000    •   Must invest between $500K and $1
per year                                       million
                                           •   Must create at least 10 full-time
                                               jobs (limit of 10,000 visas per year)
  Most Common Way to Get an
 Employment-Based Green Card
           (for EB-2, EB-3)
                               of Status
             I-140               AOS
PERM       Immigrant            (CIS)
(DOL)     Visa Petition

   PERM Labor Certification

• A certification from the Department of Labor that
  a particular position at a particular company is
  “open” because no qualified U.S. workers are
• Employer must complete 5 kinds of recruitment,
  show ability to pay wage and prepare audit file
• Electronic filing with US DOL
• Upon certification, file I-140 within 180 days
• Final step may have to wait for some EB-2, EB-3
          I-140 IV Petition
(without PERM Labor Certification)
 • Three types of EB-1 priority workers:
     1. EB-1-1 Extraordinary ability aliens
     2. EB-1-2 Outstanding professors and researchers
     3. EB-1-3 Multinational executives and managers
   Labor certification not required for any EB-1 priority
 • EB-2 (Advanced degrees, Exceptional ability)
     •   No Labor certification required if work is in the “national
       Green Card Backlogs
• Can file for adjustment, obtain immigrant
  visa only if “priority date” is “current”
• Substantial backlogs for the EB-3 category
  and for nationals of India and China in EB-2
• EB-2 backlogs may spread to other
  nationalities or to EB-1
• It could take five years or longer to get an
  immigrant visa, even if you start today!
Quota Delay: Wait for Priority Date
           To file AOS
          Immigrant Investors
• Reserved for immigrants who invest in and manage U.S.
  companies that benefit U.S. economy and create or save at
  least 10 fulltime jobs

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

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

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

• Unlike other EB categories, no quota backlogs
Sources of Information on
   Immigration Law

• Citizenship & Immigration Services

   –   Statutes & regulations
   –   Forms
   –   Procedures and instructions
   –   Contact information
   –   Processing times
  Sources of Information on
     Immigration Law

• U.S. Department of State

   –   Links to embassies & consulates worldwide
   –   Application procedures and consulate closings
   –   Wardens messages and travel advisories
   –   Public announcements
   –   Derivative citizenship and renunciation
   –   Visa Bulletin regarding priority dates
           Parting Thoughts

•   Realistic assessment is important
•   Planning ahead
•   Getting to know employers soon
•   Alternative and creative employments
  Need help with immigration
• Interested in an immigration consultation?

• To sign up for a free monthly immigration
• Contact:
  Miller Mayer
  202 E. State Street, Suite 700
  Ithaca, NY 14850
  (607) 273-4200

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