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Immigration A Guide to Work after Graduation By: Miller Mayer, LLP 202 E. State Street, Suite 700 Ithaca, NY 14850 (607) 273-4200 www.millermayer.com Overview • Nonimmigrant visas • Immigrant visas Nonimmigrant Visa Categories http://www.millermayer.com/resources/usvisacategories.htm • 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 Canada) • 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 occupation” • 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 Procedure • Employer must pay prevailing wage • Overall processing time frame: • 3-6 months normally • Premium processing possibility: 2 weeks Advantages of H-1B: Duration: - 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 year • 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 Singapore • 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 Exemption • 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 3/24/08 Program end 7/26/08 date 5/27/08 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 authorization continues 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 field 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 media 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 reputation 8. Commanding a high salary in field TN’s • 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 Resident? • 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 year) • 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 year) • 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) Adjustment of Status I-140 AOS PERM Immigrant (CIS) (DOL) Visa Petition (CIS) Consular Processing Overseas (DOS) 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 available • 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 workers • EB-2 (Advanced degrees, Exceptional ability) • No Labor certification required if work is in the “national interest” 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 category • 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 EB-5 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 http://www.uscis.gov/portal/site/uscis – Statutes & regulations – Forms – Procedures and instructions – Contact information – Processing times Sources of Information on Immigration Law • U.S. Department of State http://travel.state.gov/ – 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 matters? • Interested in an immigration consultation? • To sign up for a free monthly immigration newsletter: • Contact: Miller Mayer 202 E. State Street, Suite 700 Ithaca, NY 14850 (607) 273-4200 email@example.com Questions?
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