Nonimmigrant and Immigrant Visa Options for Postdoctoral Researchers

Transcription

1 Noimmigrat ad Immigrat Visa Optios for Postdoctoral Researchers Jauary 24, 2018 Uiversity of Califoria, Sa Fracisco

2 AGENDA Noimmigrat Visa Optios H-1B specialty occupatio J-1 ad 212(e) 2-Year Foreig Residecy Reuiremet Treaty visa optios (TN, E-2, E-3, H-1B1) O-1 visa Immigrat Visa Optios PERM Labor Certificatio EB-1 Extraordiary Ability EB-1 Outstadig researcher/professor EB-2 Natioal Iterest Waiver Family-based Adjustmet of Status

3 NONIMMIGRANT VISA OPTIONS: H-1B

4 H-1B Visas for Foreig Natioals Available for Temporary Employees to work i "Specialty Occupatios" Employmet permitted oly with petitioig employer but cocurret petitios may be filed Positio must reuire at a miimum a bachelor s degree i a academic field related to the occupatio Potetial employee must possess a appropriate degree ad ay liceses reuired for positio Potetial employee may ot be subject to 212(e)

5 Aual Numerical Limitatios 65,000 cap o H-1B visas available for each fiscal year begiig October 1 ad edig September ,000 visas available for graduates of US Master s or higher degree programs. H-1B petitio may be filed by employer up to 6 moths i advace of visa availability. May file April 1 for visas available October 1 of ext fiscal year.

6 Exemptios from the Numerical Cap College/Uiversity employees icludig ofaculty positios Employees of orgaizatios related to or affiliated with istitutios of higher educatio Employees of oprofit research orgaizatios or govermet research orgaizatios

7 The LCA Wage Obligatio The reuired wage is the higher of the actual wage or the prevailig wage Actual wage is the wage paid to similarly situated employees i the departmet or divisio. (Relevat if higher tha prevailig wage.) Prevailig Wage is wage paid to similarly situated employees as determied by the DOL. Other reliable survey sources may be used.

8 Certificatio by H-1B Employer/Petitioers relatig to Exportatio of Cotrolled Techology or Techical Data New Certificatio reuired (2011) With respect to techology or techical data the petitioer will release or otherwise provide access to the beeficiary, the petitioer certifies that it has reviewed the Export Admiistratio regulatios EAR (promulgated by Dept. of Commerce) ad the Iteratioal Traffic i Arms regulatios ITAR (promulgated by the Departmet of State) ad has determied that a licese is/is ot reuired.

9 File H-1B Petitio ad supportig documets with USCIS Forms: 1. I-129 Petitio 2. I-129H Supplemet 3. I-129W H-1B Data Collectio Supplemet 4. I-907 Reuest for Premium Processig Certified Labor Coditio Applicatio Letter from employer Proof of employee s legal etry/maiteace of status Proof of employee s ualificatios for the positio icludig copies of degrees, trascripts, degree evaluatios

10 Filig Fees Form I-129: $460 Fraud Fee for first time filer with particular employer: $500 Traiig fee: $750 if 25 or fewer employees or $1500 if over 25 employees. Must be paid if origial petitio or first extesio for same employer. Does ot apply for secod or subseuet extesio or if o extesio of stay reuested (ameded petitio). Premium processig fee: $1,225

11 Process cotiued File at USCIS Service Ceter havig jurisdictio over area of employmet If employee is i the U.S. maitaiig legal status, Petitioer may reuest ad USCIS may grat chage of status to H-1B at the time petitio is adjudicated Or may choose to activate H-1B status later through cosular processig

12 Extesios of Stay Iitial petitio may be approved for up to three years at a time. Extesios of H-1B status are available for up to 6 years, regardless of chages i employers. The 6 years is cumulative. Periods of stay outside the USA may be recaptured. Whe a petitio extedig stay is timely filed, work authorizatio is automatically exteded for 240 days.

13 Extesios of Stay for Applicats for Permaet Residece Oe year extesios are available if a labor certificatio or I-140 petitio is filed prior to the ed of the fifth year of H-1B employmet. A three year extesio is available if I-140 has bee approved but visa umber is ot available.

14 Chagig H-1B Employers Chage of Employer may be accomplished by filig a ew petitio. Employee must be i status at the time ew petitio is filed, which meas curretly employed or withi 60 days of employmet termiatio. If employee etered legally ad is maitaiig H-1B status at the time a ew petitio is filed, the employee may PORT to the ew employmet prior to approval of a ew petitio.

15 Cocurret Employmet A H-1B employee may have more tha oe employer A ew petitio must be filed for each ew employer ad or ew ad differet positio There is o miimum umber of hours a H-1B employee must work employee may have three or four cocurret positios as log as the big picture is reasoable. A H-1B employee who is the beeficiary of a exempt petitio ad is maitaiig status may also accept cocurret o-exempt employmet.

16 NONIMMIGRANT VISA OPTIONS: J-1 RESIDENCY REQUIREMENT AND WAIVERS

17 J-1: Sectio 212(e) Two-Year Home Coutry Residece Reuiremet Who is subject? Graduates of Foreig Medical Schools comig to U.S. for Advaced Medical Traiig (Researchers exempted.) Idividuals who have received fuds from ay govermet source (U.S. or home coutry) Skills List: idividuals receivig traiig i shortage occupatios (listed o U.S. Dept. of State website)

18 J-1: Sectio 212(e) Reuiremet Must reside ad be physically preset i home coutry for aggregate of two years before eligible for certai immigratio beefits Caot apply for H-1B visas, L visas, K visas, or lawful permaet residece Caot chage status to most other oimmigrat visa categories, but remai eligible for O-1, TN, F-1, B-1, B-2 visas through cosular processig

19 J-1: Sectio 212(e) Waivers No Objectio Statemet home coutry govt. issues o objectio statemet (to skills list ad home coutry govt. fudig) Exceptioal Hardship to U.S. citize or permaet residet spouse or child if reuired to retur to home coutry Persecutio o accout of race, religio or political opiio if reuired to retur to home coutry Iterested U.S. Govermet Agecy will be egaged i program for U.S. govt. agecy, who supports waiver Corad Waivers for Medical Doctors foreig medical graduate to practice medicie for 3 yrs i area desigated as havig shortage of health care professioals

20 J-2 Spouses ad Depedets Status is depedet o J-1 Spouse If 212(e) applies to pricipal J-1, it also applies to depedets ad waiver must be obtaied if reuiremet ot fulfilled J-2 Spouses may apply for employmet authorizatio for up to four years.

21 Treaty Visa Optios: E-3, H-1B1, ad TN

22 E-3 Specialty Occupatio Visas for Australias 10,500 visas per year issued usually ot filled as uickly as H-1B uota Reuiremets: Must be citize of Australia Must have a offer of employmet for a specialty occupatio (same defiitio as H-1B) Must have reuisite degree/credetials/licese for the positio Reuires oimmigrat itet to remai i the U.S. temporarily Like H-1B, reuires LCA filed by employer Duratio: Iitial visa for 2 years, ca apply for 2-year extesios as log as ca show oimmigrat itet Depedets: E-3 spouse ad childre ca accompay, eed ot be Australia citizes Spouses ca obtai work authorizatio

23 H-1B1 specialty occupatio visas for atioals of Sigapore ad Chile Of the 65,000 visas allocated to the capped H-1B visa program, a total of 6,800 are reserved for use for the H-1B1: 1,400 for Chile ad 5,400 for Sigapore Reuiremets: Must be citize of Sigapore or Chile Must have a offer of employmet for a specialty occupatio (same defiitio as H-1B) Must have reuisite degree/credetials/licese for the positio Reuires oimmigrat itet to remai i the U.S. temporarily Like H-1B, reuires LCA filed by employer Duratio: Iitial visa for 2 years, ca apply for 2-year extesios as log as ca show oimmigrat itet Depedets: H-1B1 spouse ad childre ca accompay, eed ot be Sigapore/Chile citizes

24 E-2 Treaty Ivestor Visa Reuiremets: Foreig atioal must be a citize of a treaty coutry Compay must be majority owed by citizes of treaty coutry Must be a substatial ivestmet that is put at risk, fuds irrevocable committed Compay must be a real operatig eterprise that is ot margial Foreig atioal must be directig/developig the ivestmet (50% owership or executive/maagerial role), or have essetial skills ecessary for operatio of the busiess Duratio: Iitial stay of 2 years grated, ca apply 2-year extesios as log as ca show oimmigrat itet Depedets: E-2 spouse ad childre ca accompay, eed ot be treaty coutry citizes Spouses may obtai employmet authorizatio

25 NONIMMIGRANT VISA OPTIONS: TN VISAS Limited to Mexica ad Caadia citizes Occupatio must be listed i the NAFTA Appedix 1603.D.1 (professioals) Noimmigrat itet must be maitaied Employmet must remai temporary, but o overall time limit Ca apply from withi the US (chage of status petitio) or at port of etry Mexica citizes eed a TN visa for etry Caadia citizes do ot eed a visa

26 TN for Caadias ad Mexicas cot d Duratio Iitial admissio for up to 3 years 3-year extesios possible after, as log as oimmigrat itet maitaied Depedets TD spouses ad childre ca accompay Not work authorized, but may atted school

27 NONIMMIGRANT VISA OPTIONS: O-1 VISAS

28 O-1 Visa for Extraordiary Alies O-1A: Idividuals with extraordiary ability i educatio, scieces, busiess, or athletics Reuiremets: (at least 3 of followig): Natioal/iteratioal prizes/awards for excellece Membership i associatios reuirig outstadig achievemets Authorship of scholarly publicatios Media published about the idividual Origial cotributios of major sigificace High salary/remueratio Participatio as a judge of work of others Employmet i critical/essetial role for distiguished orgaizatio

29 O-1 Visa for Extraordiary Alies O-1B: Idividuals with extraordiary ability i the arts or extraordiary achievemet i motio picture or televisio idustry Reuiremets: (at least 3 of followig): Lead/starrig participat i distiguished productios/evets Natioal/iteratioal recogitios through reviews/published material Performace i lead/critical role for distiguished orgaizatio Major commercial/critically acclaimed successes Sigificat recogitio from recogized experts High salary/remueratio

30 O-1 Visa for Extraordiary Alies Duratio: Iitial petitio for 3 years, Extesios i 1 year icremets Depedets: O-3 spouses ad childre ca accompay (ot work eligible)

31 O-1 Visa for Extraordiary Alies Advatages of O-1 vs. H-1B: No overall time limit No yearly cap ca apply at ay time durig the year Remai eligible for cosular processig visa eve if subject to J-1 212(e) reuiremet Possible to hold cocurret O-1 visas or have multiple employers if aget is petitioer Limited dual itet visa: travel i O-1 status while pursuig immigrat visa may raise o-immigrat itet issues

32 Optios for Applyig for Permaet Residece

33 Affirmative Permaet Residece Applicatio Tracks Sposorship by US citize or permaet residet family member (226,000 per year) Diversity Visa Lottery (50,000) Asylum or Refugee applicatio Employmet-based preferece immigrats (140,000) EB-1: Extraordiary Ability, Multiatioal Maagers/Execs, Outstadig Researchers/Professors (40,040) EB-2: Advaced Degree Professioals (40,040) EB-3: Professioals ad Skilled Workers (40,040) EB-4: Religious Workers (9,940) EB-5: $1 Millio Ivestors (9,940)

34 EB-2/EB-3: 3 Steps to Permaet Residece Step 1: PERM Labor Certificatio Applicatio filed with DOL. Employer must test the labor market ad cofirm that o ualified U.S. workers applied for the positio. Must egage i recruitmet pursuat to DOL guidelies. Step 2: I-140 Immigrat Petitio for Alie Worker filed with USCIS. Step 3: I-485 Applicatio to Adjust Status to Permaet Residece (i U.S.) or Applicatio for Immigrat Visa (cosular processig abroad)

35 PERM Labor Certificatio Applicatio Reuires a permaet full time job offer. NOTE: It is usually difficult for post-docs workig o temporary grats to beefit from PERM applicatios because employer caot attest to permaet job offer Process takes about 8 12 moths Employer must idetify miimum educatio ad experiece reuiremets for positio cosistet with hirig practices Employee must documet experiece gaied prior to hire date Experiece gaied at sposorig employer ot couted uless experiece was i positio at least 50% differet from curret positio Reuest Prevailig Wage Determiatio from DOL (curretly takig 4 moths)

36 PERM Labor Certificatio Cot d Test labor market through recruitmet advertisig (miimum 30 days + 30 day wait period) File electroic applicatio with DOL Approximately 15 20% of applicatios subject to audit Must maitai audit records for 5 years Lay offs withi 180 days ihibit PERM filig

37 College ad Uiversity Professors Uiversity ad college teachers/researchers may beefit if employer files a Special Hadlig PERM withi 18 moths of receivig offer of employmet from a istitutio of higher educatio. Must be offered a teure track positio Employer must have egaged i atioal competitive recruitmet process.

38 IMMIGRANT VISA OPTIONS: EB-1 ad EB-2 Natioal Iterest Waiver

39 Employmet-Based Permaet Residece I-140 Immigrat Visa Petitio may be filed without PERM Labor Certificatio if Foreig Natioal ualifies i EB-1 or EB-2 categories as a: Extraordiary Alie EB-1 Outstadig Professor or Researcher EB-1 Iteratioal Executive or Maager EB-1 Foreig Natioal who is a member of the professios holdig a advaced degree or has exceptioal ability whose immigratio is i the Natioal Iterest EB-2

40 EB-1 Extraordiary Ability Petitio Idividuals with extraordiary ability i the scieces, arts, educatio, busiess or athletics: Must demostrate sustaied atioal or iteratioal acclaim Must meet at least three of the listed criteria at a miimum (see followig slide) Based o recet case law, also must demostrate fall withi a small percetage of idividuals at the top of their field Does ot reuire offer of employmet, but idividual must preset clear evidece of itet to cotiue work i the field of extraordiary ability.

41 EB-1 Extraordiary Ability Petitio Applicat must meet 3 criteria at a miimum: Lesser atioally/iteratioally recogized prizes Membership i associatios reuirig outstadig achievemets Published material about you i major media Judge of the work of others (e.g., reviews for jourals) Authorship of scholarly articles (ad citatios) Origial cotributios of major sigificace to the field Performace i leadig/critical role for distiguished orgaizatio High salary/remueratio i relatio to others i the field Commercial success i performig arts Display of artwork at exhibitios/showcases

42 EB-1 Outstadig Researcher/Professor Must demostrate iteratioal recogitio as outstadig i the academic field Must meet at least two of the listed criteria at a miimum (see followig slide) Must have a permaet or teure track offer of employmet Employee must have three years of experiece as professor or researcher, preferably post-phd.

43 EB-1: Outstadig Researcher/Professor List of Relevat Criteria (must meet 2 criteria at a miimum) Prizes or awards for outstadig achievemet Membership i associatios reuirig outstadig achievemet Published material about your work Judge of others' work i the academic field, icludig reviews for academic jourals Origial scietific or scholarly research cotributios to the academic field Authorship of scholarly books or articles

44 EB-2 Natioal Iterest Waiver Must demostrate will substatially beefit prospectively the atioal ecoomy, cultural or educatioal iterests, or welfare of the U.S. Must demostrate a exemptio from the labor certificatio reuiremet will beefit the atioal iterest (3-part stadard, see followig slide) Still EB-2 preferece category, but waives labor certificatio reuiremet Does ot reuire job offer by a employer

45 EB-2: Natioal Iterest Waiver 3-part Stadard (established by case law): Proposed edeavor has both substatial merit ad atioal importace Applicat is well-positioed to advace proposed edeavor The atioal iterest would be adversely affected if a labor certificatio were reuired. Stated differetly, must establish that applicat will serve the atioal iterest to a substatially greater degree tha would a available U.S. worker havig the same miimum ualificatios reuired for the positio.

46 Immigrat Visas: Priority Dates

47 Priority Date for Visa Eligibility Established o the date the labor certificatio is filed with the DOL OR, o the date the immigrat visa petitio (I-140) is filed with USCIS. Availability of employmet based visas varies for differet employmet based categories World wide uotas determie availability of visas Visa availability may also be affected by atioality which is the place of birth, ot citizeship.

48 Visa Bulleti: Employmet-Based Prefereces Jauary 2018 Employmet Based All Chargeability Areas Except Those Listed Chia- Mailad Bor Idia Mexico Philippies 1 st C C C C C 2 d C 08 May NOV 08 C C 3 rd C 15 APR NOV 06 C 15 FEB 16 Other Workers C 22 DEC NOV 06 C 15 FEB 16 4 th C C C 01JUN 16 C Certai Religious Workers U U U U U 5 th C 22 JUL 14 C C C

49 Family-Based Adjustmet of Status Immediate relative petitios: Spouse, child (uder 21) or paret of U.S. citize Process: U.S. citize petitio files I-130 petitio May file for I-485 adjustmet of status cocurretly, without waitig for a priority date to become curret Reuires lawful etry, but beeficiary eed ot be i status at time I-485 is filed All other family-based petitios: adult childre ad sibligs of U.S. citizes; spouses, childre ad umarried adult childre of LPRs Process: U.S. citize or LPR petitioer files I-130 petitio Foreig atioal must wait for curret priority date before filig I-485 Reuires both lawful etry ad maiteace of status at the time the I-485 is filed