Melissa B. Harms Immigration Attorney November 3, 2011 Law Office of Melissa Harms Basic Immigration Terms H-1B Visas Other Visa Types Green Card Sponsorship 2 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 File Labor Condition Application with DOL (7 day processing) File H-1B petition with USCIS (2 3 months processing or 15 days for extra $1,225) Change of Status H-1B effective on or after October 1 Consular Processing Interview scheduled at US consulate/embassy 3 4 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 5 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 6 1
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 January 26, 2011; Not reached yet for FY 2012 Normally, visas gone immediately, and lottery held for available slots 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 7 8 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 Required wage The higher of (1) the wage paid to all other similarly qualified workers who are performing substantially the same work as the H-1B worker, and (2) the prevailing wage for the occupation. Salary reductions causing the employee s wage to fall below the required wage rate generally not allowed. Employer may be protected if a new LCA or an amended H-1B petition is filed. Exceptions for authorized deductions that are: Required by law (e.g., income taxes) Reasonable and customary (e.g., union dues, insurance premiums) Voluntarily authorized by the H-1B employee 9 10 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 After LCA is certified, file petition H-1B petition filed with the USCIS Regular processing 2 3 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 11 12 2
Change of Status File petition with USCIS Stay in US (BEWARE: departing US while petition is pending can result in denial) Receive approval Status change goes into effect on requested date If travel abroad, must obtain visa at US Consulate Consular Processing File petition with USCIS Receive approval Depart US Take original approval notice to interview at US Consulate Obtain visa Re-enter US 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 13 14 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. 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 15 16 Computer Science Applications Actuarial Science Engineering Engineering Technologies Biological and Biomedical Sciences Mathematics ti and Statisticsti ti Military Technologies Physical Sciences Science Technologies Medical Scientist OPT Expiration January March 2012 When to apply for H-1B April 2011 Special Notes April April 2012 Will need to September work under H- 2012 1B gap cap from OPT expiration until 09/30/2012 October April 2012 December 2012 17 18 3
OPT May work for any employer as long as related to field of study Allowed 90 days of unemployment No employer sponsorship required H-1B Allowed a total of six years (with further extensions possible) Can start permanent residency process Counted once in H- 1B numbers Visa classification TN L-1A L-1B General requirements 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. Intra-company transferee. (Manager or Executive) 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. 0-1 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. 20 Visa classification General requirements J-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. Labor certification Employer recruits and must prove a shortage of minimally qualified American workers to fill the position PERM process File with Dept. of Labor Non-labor certification Outstanding Researcher Extraordinary Ability National Interest Waiver Multi-National Executive or Manager Diversity Lottery Investor Registered Nurse or Physical Therapist Religious Worker 21 22 PERM Immigrant Visa Petition (I-140) Adjustment of Status (I-485) EAD/AP Wait for Visa Availability Consular Processing Interview scheduled at US consulate Published monthly by the Department of State (www.travel.state.gov) 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 23 24 4
Emp. Based All chargeability areas (except those listed) China India Mexico Philippines 1 st Current Current Current Current Current 2 nd Current 01NOV07 01NOV07 Current Current 3 rd 22DEC05 22AUG04 22JUL02 22DEC05 22DEC05 Priority Date is the date PERM was filed Country of Chargeability is applicant or spouse s country of birth Category (1, 2 or 3) determined by position requirements AND employee qualifications 25 Position 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 7-9 year wait) Must look at requirements of the employer and NOT the qualifications of the employee 26 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 is 30 days AFTER last form of recruitment (i.e. last recruitment t placed on 03/1/2010, can file any time after 04/01/2010) Online filing, audit-based (like tax return) Processing times (no audit = 3-6 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 Prove company can pay offered salary through documentation of annual report, audited financial statements or federal tax returns If less than 100 employees, must provide past 2 years of federal tax returns Standard processing time is 6 months Can premium process in 15 days by paying $1,225 government filing fee Can file concurrently with I-485 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 27 28 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; t 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 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. 5
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. Beneficiaries can file for AOS/IV processing only when visa available When preference category in Visa Bulletin is Current, or When cut-off date in Visa Bulletin for preference category & country of chargeability is on or before Priority Date CONSULAR PROCESSING If consular processing, National Visa Center will issue documents needed for immigrant visa interview overseas Once Priority Date current, U.S. consulate will schedule interview ADJUSTMENT OF STATUS (I-485) Once Priority Date 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 6 12 months if visa available current 32 TWO parts to the process Establishing the Relationship Immigrant Relative Petition (I-130) Obtaining Permanent Residence: In US: Adjustment of Status Outside US: Consular Processing Visa Availability & Priority Dates IRs: no wait for visa--may one step Preference Relatives & priority dates If current visa number: File I-130 and I-485 and accompanying applications (I-765, I-131, I-864) with National Benefits Center If no current visa number: File I-130 with National Benefits Center and it will be routed to appropriate service center Foreign national attends biometrics appointment 4-6 weeks after filing EAD and Advanced d Parole generally 60-90 days If current visa number, forwarded to local office for I-130 interview. San Francisco: 4 months Sacramento: 4 months San Jose: 4 months At interview, case is generally decided Green card arrives 2-4 weeks later via mail 33 34 F-1/J-1 require strict non-immigrant intent Filing I-130 establishes immigrant intent DSOs should not terminate SEVIS record if student maintaining F-1 status Recommend maintaining F-1 status while AOS is pending No travel after I-130 filed unless using advanced parole Timing of AOS filing is very important Recommend 60 days after F-1 entry J-1 two year return requirement Marriage to a US citizen does not excuse two year return requirement Maintenance of status not relevant for spouses of US citizens Unauthorized employment not relevant for spouses of US citizens 35 36 6
Research employer s policies regarding sponsorship Permanent residency start start planning early Seek legal advice early in the process to assist your planning Plan graduation date/opt with H-1B in mind Questions? Melissa B. Harms Law Office of Melissa Harms 700 Larkspur Landing Circle, Suite 199 Larkspur, CA 94939 (415) 945-9600 www.harms-law.com mharms@harms-law.com 37 38 7