Beyond the f 1 october 2012


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Beyond the f 1 october 2012

  1. 1. Beyond the F-1: How CanStudents Remain in the USAfter They Graduate?Charina P. Garcia and Melissa Harms
  2. 2. 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 © 2012 CPG Immigration Law Group
  3. 3. 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 Consular Status Processing H-1B effective on or after October 1 Interview Scheduled at U.S. Consulate/Embassy © 2012 CPG Immigration Law Group
  4. 4. H-1B Visas 6 year visa 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 © 2012 CPG Immigration Law Group
  5. 5. H-1B Visas 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 © 2012 CPG Immigration Law Group
  6. 6. 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 June 11, 2012; January 26, 2011 Normally, visas gone immediately, and lottery held for available slots © 2012 CPG Immigration Law Group
  7. 7. 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
  8. 8. 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 © 2012 CPG Immigration Law Group
  9. 9. 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 © 2012 CPG Immigration Law Group
  10. 10. 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 © 2012 CPG Immigration Law Group
  11. 11. Change of Status or Consular ProcessingChange of Status Consular ProcessingFile petition with USCIS File petition with USCISStay in US (BEWARE: departing US Receive approvalwhile petition is pending can result indenial)Receive approval Depart USStatus change goes into effect on Take original approval notice torequested date interview at US ConsulateIf travel abroad, must obtain visa at Obtain visaUS Consulate Re-enter US © 2012 CPG Immigration Law Group
  12. 12. 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 © 2012 CPG Immigration Law Group
  13. 13. Gap Cap 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. © 2012 CPG Immigration Law Group
  14. 14. 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 © 2012 CPG Immigration Law Group
  15. 15. OPT Dates and H-1B Submission OPT When to apply for H-1B Special Notes Expiration January – April 2012 March 2013 April – April 2013 Will need to work under H- September 1B gap cap from OPT 2013 expiration until 09/30/2013 October – April 2013 December 2013 January – April 2013 March 2014 © 2012 CPG Immigration Law Group
  16. 16. Advantages to H-1B and OPTOPT H-1BMay work for any employer as long as Allowed a total of six years (withrelated to field of study further extensions possible)Allowed 90 days of unemployment Can start permanent residency processNo employer sponsorship required Counted once in H-1B “numbers”Can be unpaid (note STEM OPT must Must be paid the prevailing wagebe paid employment)Can be independent contractor Must be an employee and receive same benefits as other employees © 2012 CPG Immigration Law Group
  17. 17. Other Non-Immigrant VisasVisa classification General requirementsTN 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-1A Intra-company transferee. (Manager or Executive)L-1B 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. © 2012 CPG Immigration Law Group
  18. 18. Other Non-Immigrant Visas (cont’d)Visa classification General requirementsJ-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.H-3 Temporary worker invited by individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one “that is not designed primarily to provide productive employment” and training can’t be available in home country.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. © 2012 CPG Immigration Law Group
  19. 19. Sponsorship for Permanent ResidencyLabor certification Non-labor certification• Employer recruits and must prove a shortage • Outstanding Researcher of minimally qualified American workers to fill the position • Extraordinary Ability• PERM process • National Interest Waiver• File with Department of Labor • Multi-National Executive or Manager • Diversity Lottery • Investor • Religious Worker © 2012 CPG Immigration Law Group
  20. 20. Permanent Residency Flowchart PERM Immigrant Visa Petition (I-140) Wait for Visa AvailabilityAdjustment of Status (I-485) Consular Processing Interview Scheduled at U.S. EAD/AP Consulate/Embassy © 2012 CPG Immigration Law Group
  21. 21. Visa Availability - Visa Bulletin Published monthly by the Department of State ( 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” © 2012 CPG Immigration Law Group
  22. 22. November 2012 Visa BulletinEmployment- All Other China India Mexico PhilippinesBased Chargeability Areas Except Those Listed1st Current Current Current Current Current2nd Current 01SEP07 01SEP04 Current Current3rd 22NOV06 15APR06 22OCT02 22NOV06 08AUG06 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 © 2012 CPG Immigration Law Group
  23. 23. EB-2 vs. EB-3Position requires at a minimum and Employee has: EB-2: Master’s degree or Bachelor’s and 5 years of progressively responsible post-baccalaureate work experience (there is no quota wait unless from China or India) EB-3: At least 2 years of education or work experience (there is currently a 7 - 15 year wait) In order to qualify for EB-2, degree must be from a single source (i.e. degree alone must be equivalent to a U.S. 4 year Bachelor’s degree; cannot combine degrees to come up with a Bachelor’s equivalent) © 2012 CPG Immigration Law Group
  24. 24. 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 = 3 – 5 months; audit = 2 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 © 2012 CPG Immigration Law Group
  25. 25. 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 © 2012 CPG Immigration Law Group
  26. 26. 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 © 2012 CPG Immigration Law Group
  27. 27. 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. © 2012 CPG Immigration Law Group
  28. 28. 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. © 2012 CPG Immigration Law Group
  29. 29. 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 DateCONSULAR 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 interviewADJUSTMENT 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 CPG Immigration Law Group
  30. 30. 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 © 2012 CPG Immigration Law Group
  31. 31. Questions or Comments? Charina P. GarciaMelissa Harms charina@cpglawgroup.commharms@harms-law.com700 Larkspur Landing Circle, Suite 199Larkspur, California 94939415.945.9600 (Phone)415.651.9602 (Fax)