Immigration Today– Ignorance is Not Bliss. Charles H. Kuck Kuck Casablanca LLC—The Immigration Law Firm 8010 Roswell Rd., Suite 300 Atlanta, GA 30350 404/816-8611 (F) 404/816-8615 Toll Free: 1-866-286-6200 Offices also in Miami and Orlando, Florida, and Dalton and Gainesville, Georgia [email_address] www.immigration.net

Our Bizarre Immigration Laws 1952 Immigration and Nationality Act Immigration Reform and Control Act of 1986 Immigration Act of 1990 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 American Competitiveness and Workforce Improvement Act of 1998 American Competitiveness in the Twenty First Century Act of 2000 Visa Waiver Permanent Program Act of 2000 Legal Immigration and Family Equity Act of 2000 Extension of 245(i) and other new laws for 2001 PATRIOT Act of 2001 Border Security and Visa Reform Act of 2002 Real ID And More to come.

1952 Immigration and Nationality Act

Immigration Reform and Control Act of 1986

Immigration Act of 1990

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

American Competitiveness and Workforce Improvement Act of 1998

American Competitiveness in the Twenty First Century Act of 2000

Visa Waiver Permanent Program Act of 2000

Legal Immigration and Family Equity Act of 2000

Extension of 245(i) and other new laws for 2001

PATRIOT Act of 2001

Border Security and Visa Reform Act of 2002

Real ID

And More to come.

The Politics of Immigration

DHS Enforcement Changes Employer sanctions enforcement shifted to criminal investigations and focus on companies in industries that touch on national security issues Increase in criminal charges for entry violations and document fraud

Employer sanctions enforcement shifted to criminal investigations and focus on companies in industries that touch on national security issues

Increase in criminal charges for entry violations and document fraud

“Third Country National” Visa Processing DHS/DOS restrictions on TCN return to US Security checks for citizens of the “classified” countries Status breaks mean home country visa processing only and forever Export Control licensure enforced

DHS/DOS restrictions on TCN return to US

Security checks for citizens of the “classified” countries

Status breaks mean home country visa processing only and forever

Export Control licensure enforced

Hiring Foreign Workers— Who can Hire Me? First, What is my status? Second, What is my citizenship? Third, Have I always maintained “status” Fourth, What options do I have? Employer Self Employment?

First, What is my status?

Second, What is my citizenship?

Third, Have I always maintained “status”

Fourth, What options do I have?

Employer

Self Employment?

Pre-Employment: What Can You Be Asked? Do you have the unrestricted right to work in the United States? If the person answers “no,” the second question is: Will you need the Company’s sponsorship to continue or extend your current work authorization status? If this answer is “yes,” the person is not in a protected class.

Do you have the unrestricted right to work in the United States?

If the person answers “no,” the second question is:

Will you need the Company’s sponsorship to continue or extend your current work authorization status?

If this answer is “yes,” the person is not in a protected class.

Not Protected from Employment Discrimination? “ Unauthorized” foreign nationals Foreign nationals in valid non-immigrant status [H-1B, L-1, F-1 etc.] Foreign nationals with temporary work authorization [the EAD] A policy not to hire persons in these groups is permissible.

“ Unauthorized” foreign nationals

Foreign nationals in valid non-immigrant status [H-1B, L-1, F-1 etc.]

Foreign nationals with temporary work authorization [the EAD]

A policy not to hire persons in these groups is permissible.

BUT, What can I do: TEMPORARY VISAS F-1/CPT/OPT Student Visa B-1 Business Visitor H-1B Temporary Worker L-1A and L-1B E-1/E-2 TN Professional Work Permit J-1 O-1

F-1/CPT/OPT Student Visa

B-1 Business Visitor

H-1B Temporary Worker

L-1A and L-1B

E-1/E-2

TN Professional Work Permit

J-1

O-1

F-1 Student Status/OPT You must apply for OPT 90 days prior to graduation OPT is valid for employment AFTER the Employment Card is issued! Extensions of the OPT are available if you are STEM Grad—17 more months OPT is valid for work within your field of study OPT is a bridge to a more long term NIV Beware the H-1B Gap! F-1 Students with OPT/CPT -- Tax Issues

You must apply for OPT 90 days prior to graduation

OPT is valid for employment AFTER the Employment Card is issued!

Extensions of the OPT are available if you are STEM Grad—17 more months

OPT is valid for work within your field of study

OPT is a bridge to a more long term NIV

Beware the H-1B Gap!

F-1 Students with OPT/CPT -- Tax Issues

H-1B Specialty Occupation Requires a bachelor’s degree in the specific specialty as an industry minimum for entry-level position Prospective employee must have that specific degree or equivalent No requirement for unavailability of labor!

Requires a bachelor’s degree in the specific specialty as an industry minimum for entry-level position

Prospective employee must have that specific degree or equivalent

No requirement for unavailability of labor!

H-1B Specialty Occupation Preliminary filing with U.S. Department of Labor Pay the “prevailing wage” for the occupation in the geographic area of intended employment

Preliminary filing with U.S. Department of Labor

Pay the “prevailing wage” for the occupation in the geographic area of intended employment

H1-B Visas for “Specialty Occupations” Caps on H1-B visas 65,000 (really 58,000) 20,000 Master’s Degree Visa LOTTERY Government filing fees must be paid by employer--new filing fee is $2,320, most of which must be paid by the employer. Maximum stay of 6 years With possible one year/three year extensions with Filed Labor Certifications/Approved Immigrant Visa

Caps on H1-B visas

65,000 (really 58,000)

20,000 Master’s Degree Visa

LOTTERY

Government filing fees must be paid by employer--new filing fee is $2,320, most of which must be paid by the employer.

Maximum stay of 6 years

With possible one year/three year extensions with Filed Labor Certifications/Approved Immigrant Visa

H-1B Specialty Occupation The standard processing time for an H-1B visa petition is 150 to 180 days. Premium Processing is Available--$1,000 Persons on a valid H-1B visa already may begin employment with the new employer upon the filing of the new H-1B. Self Employed H-1Bs

The standard processing time for an H-1B visa petition is 150 to 180 days.

Premium Processing is Available--$1,000

Persons on a valid H-1B visa already may begin employment with the new employer upon the filing of the new H-1B.

Self Employed H-1Bs

TN Professional Work Permit Available only to citizens of Canada and Mexico Temporary entry to engage in activities at a professional level Initial entry of 1-3 years, no limit to extensions, except for “intent” issue

Available only to citizens of Canada and Mexico

Temporary entry to engage in activities at a professional level

Initial entry of 1-3 years, no limit to extensions, except for “intent” issue

E-1 Treaty Trader Treaty! Apply at U.S. Embassy or Consulate (or INS for limited purposes) 5 Year Visa Initial 2-year stay Unlimited 2-year stay extensions Substantial trade between U.S. and home country

Treaty!

Apply at U.S. Embassy or Consulate (or INS for limited purposes)

5 Year Visa

Initial 2-year stay

Unlimited 2-year stay extensions

Substantial trade between U.S. and home country

E-2 Treaty Investor Treaty! Apply at U.S. Embassy or Consulate or INS for limited purposes 5 Year Visa Issuance Initial 2-year stay Unlimited 2-year extensions Make substantial, irrevocable investment/ Not a “Marginal” investment--$$ in the Bank

Treaty!

Apply at U.S. Embassy or Consulate or INS for limited purposes

5 Year Visa Issuance

Initial 2-year stay

Unlimited 2-year extensions

Make substantial, irrevocable investment/

Not a “Marginal” investment--$$ in the Bank

E-1/E-2 Visas Can be on foreign or U.S. payroll Actual investor or an executive, supervisory, or essential skills employee of the actual investor Actual investor can be a foreign company

Can be on foreign or U.S. payroll

Actual investor or an executive, supervisory, or essential skills employee of the actual investor

Actual investor can be a foreign company

L-1 Intracompany Transferee USCIS Approves L-1 Visa Status Canadian L-1 Applications can be made at Ports of Entry Initial entry of 3 years, except 1 year for new offices Extensions up to maximum 5-year stay for specialized knowledge and 7-year stay for managers or executives

USCIS Approves L-1 Visa Status

Canadian L-1 Applications can be made at Ports of Entry

Initial entry of 3 years, except 1 year for new offices

Extensions up to maximum 5-year stay for specialized knowledge and 7-year stay for managers or executives

L-1 Visa Eligibility U.S. Company/Branch, must be Parent, Subsidiary or “Related” Company to U.S. Company/Branch Prospective Transferee must have been employed by foreign related company for at least 6 months (blanket petition) or 1 year (non-blanket petition) out of the 3 years immediately preceding the transfer to the U.S.

U.S. Company/Branch, must be Parent, Subsidiary or “Related” Company to U.S. Company/Branch

Prospective Transferee must have been employed by foreign related company for at least 6 months (blanket petition) or 1 year (non-blanket petition) out of the 3 years immediately preceding the transfer to the U.S.

L-1 Visa Eligibility The prospective transferee must have worked abroad in an executive, managerial or specialized knowledge capacity EXECUTIVES Primarily directs management of the company and establishes organizational goals and policies Exercises wide latitude in discretionary decision-making

The prospective transferee must have worked abroad in an executive, managerial or specialized knowledge capacity

EXECUTIVES

Primarily directs management of the company and establishes organizational goals and policies

Exercises wide latitude in discretionary decision-making

Other Temporary Working Visas H-3 Trainee Visas J-1 Exchange Visitors O-1 Persons having extraordinary ability in sciences , arts, education, business , athletics or entertainment industry

H-3 Trainee Visas

J-1 Exchange Visitors

O-1 Persons having extraordinary ability in sciences , arts, education, business , athletics or entertainment industry

IMMIGRANT VISAS Green Cards Labor Certification Employment-Based Immigrant Visas Dual Intent Adjustment of Status and Consular Processing ... A Long Wait!

Green Cards

Labor Certification

Employment-Based Immigrant Visas

Dual Intent

Adjustment of Status and Consular Processing

... A Long Wait!

IMMIGRANT VISAS 675,000 total visas are now allocated to the family and employment based categories annually, only 140,000 are for employment based immigrants Each country is allocated a maximum of 26,000 permanent visas annually Immigrant visas are allocated quantitatively under “preference” categories

675,000 total visas are now allocated to the family and employment based categories annually, only 140,000 are for employment based immigrants

Each country is allocated a maximum of 26,000 permanent visas annually

Immigrant visas are allocated quantitatively under “preference” categories

Visa Bulletin—How do They Do That? http://travel.state.gov/visa/frvi/bulletin/bulletin_3761.html

http://travel.state.gov/visa/frvi/bulletin/bulletin_3761.html

Employment-Based Preferences First Preference 40,000 visas annually Priority workers Aliens with extraordinary ability in the arts and sciences, business, education, or athletics Outstanding professors and researchers Multinational managers and executives Labor Certification not required!

First Preference

40,000 visas annually

Priority workers

Aliens with extraordinary ability in the arts and sciences, business, education, or athletics

Outstanding professors and researchers

Multinational managers and executives

Labor Certification not required!

Employment-Based Preferences (cont.) Second Preference 40,000 visas annually members of the professions holding advanced degrees or persons of “exceptional ability” any U.S. degree or foreign equivalent degree above a bachelor’s degree labor certification required!

Second Preference

40,000 visas annually

members of the professions holding advanced degrees or persons of “exceptional ability”

any U.S. degree or foreign equivalent degree above a bachelor’s degree

labor certification required!

Employment-Based Preferences (cont.) Third Preference 40,000 visas annually Professionals with bachelor’s degree Skilled workers with at least 2 years of training or experience Unskilled workers (only 10,000 visas and 7 year backlog) Labor Certification required

Third Preference

40,000 visas annually

Professionals with bachelor’s degree

Skilled workers with at least 2 years of training or experience

Unskilled workers (only 10,000 visas and 7 year backlog)

Labor Certification required

Labor Certification U.S. Department of Labor verifies that there are no available, willing and qualified U.S. workers for the particular job PERM Complicated process Advertising

U.S. Department of Labor verifies that there are no available, willing and qualified U.S. workers for the particular job

PERM

Complicated process

Advertising

Adjustment of Status Immigrant petition approved by INS or Applied Concurrently Priority date becomes current Apply for permanent resident status Available only to aliens who at all times have maintained a valid nonimmigrant status 245(i) 245(k)

Immigrant petition approved by INS or Applied Concurrently

Priority date becomes current

Apply for permanent resident status

Available only to aliens who at all times have maintained a valid nonimmigrant status

245(i)

245(k)

Thank you! If we can be of help, please email or call: Charles H. Kuck [email_address] Marc R. Amos [email_address] 404-816-8611