After OPT: Navigating Immigration and Your Career. November 8, 2017

Transcription

1 After OPT: Navigating Immigration and Your Career Feige M. Grundman, Esq. November 8, 2017

2 Agenda Nonimmigrant status H-1B Requirements H-1B alternatives Introduction to permanent residency Legislation, Regulations, and Policy Changes: What to Expect

3 Nonimmigrant Visas Non-Immigrant Status (NIV) H, F, J, O, etc. Limited duration Specific to employer / institution Specific to purpose (work/study/tourism) May require a showing of non-immigrant intent

4 Maintaining Lawful Status Status Permission to remain in the U.S. for a fixed period Denoted by I-94 record (for Fs with I-20; for Js with DS-2019) Permissible activities in the U.S. determined by status Can only hold status in one classification at a time (i.e. cannot have an F and an H)

5 Maintaining Lawful Status I-94, Arrival / Departure Record Two ways to obtain: Port of Entry requires visa Change or Extension of status Governs Status Denotes classification (F, J, H, O) Denotes period of stay Surrendered upon departure, given up with status

6 Post F/J NIV Options: H-1B Visas H-1B: specialty occupation Employer petition on your behalf Legal/filing fees to be paid by employer Position that normally requires at least a bachelors degree in a related field Employer must agree to pay prevailing wage

7 H-1B Visas Part-time or full-time Length of approval Extensions Portability Maximum in H status 6 years total Cap on the number of H-1Bs issued each year

8 H-1B Visas: Travel and Status Issues Travel after April 1 Depart U.S., relinquish I-94 F visa to come back to use OPT? What about H? What happens to petition? Maintaining status until October 1 Cap gap relief OPT must be valid at time H-1B petition is filed Extends only until September 30

9 H-1B Quota 20,000 for U.S.-awarded advanced degrees Since FY 2014, gone on April 1-5 (Lottery) FY 2013: gone by June 7, 2012 FY 2012: gone by October 19, 2011 FY 2011: gone by December 22, 2010 FY 2009 and 2010: gone on April 1-5 (Lottery)

10 H-1B Quota 65,000 regular cap H-1Bs Since FY 2014: gone on April 1-5 (Lottery) FY 2013 gone by June 11, 2012 FY 2012 gone by November 22, 2011 FY 2011 gone by January 26, 2011 FY 2010 gone by December 2009 FY 2009 gone by April 2008

11 Avoiding the H-1B Quota Exemption based on employer (increased scrutiny) Universities Non-profits affiliated with universities Non-profit research organizations Government research organizations Exemption based on employee Previously counted (in the last 6 years) Singapore/Chile Concurrent employment

12 H-1B Cap Exemptions Government research organization Includes local, state and federal Employment at university Majority of alien s time at university Must directly and predominantly further normal, primary or essential function of university Compare prior standard

13 H-1B Cap Exemptions New rule exempts nonprofits related to or affiliated with university continued Must be written affiliation agreement Must be an active working relationship between the nonprofit and the university Any fundamental activity of the nonprofit must directly contribute to the research or education mission of the university Compare prior standard (shared ownership or board control; operated by or attached to)

14 H-1B Cap Exemptions continued Concurrent Employment USCIS can revoke when foreign national leaves cap exempt employer

15 H-1B Alternatives: OPT STEM OPT extension (24 months) STEM graduates E-Verify employers STEM OPT after filing for an H-1B?

16 H-1B Alternatives: H-4 H-4 work authorization eligibility Principal H-1B holder has an approved I-140 Principal H-1B holder has been granted AC-21 extension Consider processing times

17 H-1B Alternatives: Ls L-1: intracompany transfer Must have worked for petitioning company overseas for at least one year in the last three years For execs, managers, or special knowledge Spouse eligible for employment authorization Maximum 7 years in L status NOTE: H & L combined max 7 years

18 H-1B Alternatives: J-1 Visa Non-Immigrant Intent Subject to 2-year rule? What does it mean to be subject? Options if subject: Return home Apply for a Waiver Obtain an O-1 Visa

19 H-1B Alternatives: Es Must be national of treaty country Employing company must be owned at least 50% by treaty country nationals Substantial investment or substantial trade No quota and can be extended indefinitely Spouse eligible for employment authorization

20 H-1B Alternatives: TN Citizens of Canada and Mexico Must have employer and job offer Profession must be on the NAFTA list Applicant must have qualifications as indicated on NAFTA list Strict nonimmigrant intent Will this Administration tweet its way out of NAFTA?

21 Other H-1B Alternatives O visa Artists with distinction in field; or Scientists with extraordinary ability E-3 Australians only, similar to H-1B Work-authorized dependent visa category (L-2, E-2, E-3D, some H-4)

22 New Development: Grace Periods Applies to H, L, E, O, P and TN Before validity date 10 days After validity date 10 days During validity period 60 days Only one time This provision does not apply to P visa holders

23 Grace Periods During grace period Can file change or extension of status Cannot work continued Can file for EAD Discretionary Can be denied for violation of status or unauthorized employment

24 Trends: Increase in RFEs RFEs for premium processing cases ( the 15 th day RFE ) RFEs on H-1B cap exemption eligibility RFEs on H-1B specialty occupation RFEs on wage level RFEs on extension deference policy rescinded RFEs for L-1s: managerial/specialized knowledge continue

25 Permanent Residence Authorization to Live & Work Indefinitely in the United States Immigrant Visa The Green Card or Form I-551 Not permanent may be abandoned or taken away

26 Nonimmigrant to Immigrant H-1B change employer, requires new petition may start working under H-1B portability 4 th Year H-1B status start thinking about LPR Maintain NIV status until LPR 6 years in H-1B, other options? Eligible to file adjustment of status?

27 How Do I Apply? Family Investment Asylum Employment DV Lottery

28 Permanent Residence Quotas Annual Limit on Permanent Residency Per Country Limit 7% Allocated by: Priority Date place in line Preference Category

29 Permanent Residence Categories Employment-Based First Preference (EB-1) Extraordinary Ability Outstanding Researcher Multinational Executive Employment-Based Second Preference (EB-2) Sometimes requires a labor market test (PERM) Advanced Degreed Professionals Equivalent Bachelors plus 5 years experience Exceptional Ability

30 Permanent Residence Categories Third Preference (EB-3) requires labor market test (PERM) Skilled Worker (2+ years experience) Bachelors Degree Fifth Preference (EB-5) $1 Million Investment in the U.S. that creates at least 10 U.S. jobs

31 Permanent Residency Quotas: The Visa Bulletin for November 2017

32 Immigrant Processing Trends PERM audits on the rise Non-PERM cases EB-1 Nebraska Service Center RFEs even when criteria are met Kazarian-style overall merits analysis RFEs with Premium Processing

33 I-485 Processing Trends Medical exam expiration Updated work verification requests Multiple RFEs for the same AOS application Inconsistent processing times for dependents Interviews for all employment-based applicants

34 QUESTIONS?

35 Materials & Resources Please visit to download this PowerPoint presentation and all materials from this seminar.

36 Feige M. Grundman, Esq Klasko Immigration Law Partners, LLP Philadelphia New York

37 Feige M. Grundman, Esq. Feige M. Grundman is a Senior Associate in the Firm s Philadelphia office. Feige's practice has focused exclusively on immigration and nationality law since Her practice includes the representation of leading universities, hospitals, Fortune 500, multinational, and private companies with high volume employment based non-immigrant and immigrant visa matters. A graduate of the University of Pittsburgh School of Law (J.D. 2005), Feige received her undergraduate degree, with Honors, from Carnegie Mellon University (B.S. 2000). Feige is an active member of the American Immigration Lawyers Association and is admitted to practice law in Pennsylvania, New Jersey and Florida.

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39 Disclaimer / Copyright Notice The material contained in this PowerPoint does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed. Copyright 2017 Klasko Immigration Law Partners, LLP. All rights reserved.