Work Visas and Permanent Residency Global Education Office, University of New Mexico November 11, 2016 University of New Mexico, Mitchel Hall, Room 122
D From non-immigrant to lawful permanent resident
A non-immigrant visa is the visa issued to persons with a permanent residence outside the U.S. but who wishes to be in the U.S. on a temporary basis (i.e. Tourism, medical treatment, business, temporary work, or study.
If you are still interested is seeking lawful permanent residency in the United States! Family
An immigrant visa is the visa issued to persons wishing to live permanently in the U.S., and who are eligible to receive an immigrant visa. Immigrant visas are most readily available through certain familial relationships or employment-based options. Family Employment
B-1 Visa: Temporary Visa for Business Travelers B-2 Visa: Visitors ("tourists"): Temporary Visitor for Pleasure or Medical Treatment.
F-1 Visa: Academic Student. F-2 Visa: Spouses and Children under the age of twentyone (21) of the F-1 Visa holder.
This should look familiar:
On Campus Employment F-1 student status permits you to work on campus while you are enrolled in a full course of study. Oncampus employment includes research assistant, library student worker, etc. Can begin on campus employment as many as 30 days prior to start of program of study. Graduate students with teaching or research assistantships should be aware that these positions are considered employment and therefore are limited to 20 hours a week during the school year.
On Campus Employment
1. Curricular Practical Training (CPT) Curricular Practical Training (CPT) is employment that is an integral part of an established curriculum, including: alternate work/study, internship, cooperative education, or any other type of required internship or practicum which is offered by sponsoring employers through cooperative agreements with the school.
1. Curricular Practical Training (CPT) Continued: CPT is available only prior to the completion of your degree program and you must have a job offer at the time of application. CPT employment may not delay completion of the academic program.
2. Optional Practical Training (OPT) Most common work options while a student. After degree completion or 9 months of program: Twelve (12) Months OPT
2. Optional Practical Training (OPT) Optional Practical Training (OPT) is a period during which undergraduate and graduate students with F-1 status (who have completed or have been pursuing their degrees for more than nine months) are permitted to work for, at most, one year on a student visa toward getting practical training to complement their degrees. F-1 students are usually permitted a total of 12 months of practical training.
2. Optional Practical Training (OPT) OPT: Students are permitted to work getting practical training to complement their degrees. Unless these jobs can be directly tied to your degree program!
3. Optional Practical Training (OPT) Science, Technology, Engineering, and Mathematics (STEM) Extension There is an extended option for STEM students. These students may be eligible for a 24-month extension to OPT.* * New STEM OPT rules went into effect May 10, 2016.
3. STEM OPT: This STEM extension if only available for student in qualifying STEM fields. There is a list of eligible degrees and nothing outside of that list qualifies. To be eligible for the 12-month OPT, any degree in any field of study is valid. For the 24-month OPT extension, a student must have received a Science, Technology, Engineering, or Mathematics degree in one of the approved majors listed on the USCIS website.
Approved majors listed on the USCIS website.
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EXCHANGE VISITOR J-1 Visa: Exchange Visitor. J-2 Visa: Spouses and Children under the age of twentyone (21) of the J-1 Exchange Visitor.
The J program allows foreign nationals to receive additional training in their chosen professions, while being employed. Different J visa programs have different maximum durations. The length of J-1 duration is listed on Form DS- 2019, Certificate of Eligibility for Exchange Visitor (J-1) Status.
Some J-1 visa holders may be subject to a two-year home residency requirement. The DS 2019 may indicate whether the person is subject to the two-year home residency requirement. If the foreign national is subject to the requirement, there are several ways in which to obtain a waiver of the requirement.
Certificate of Eligibility for Exchange Visitor (J-1) Status.
Unlike some other visas that include employment authorization, an employer cannot petition for a J-1 visa for a foreign worker. In order to participate in one of the J-1 Visa programs, a foreign nation must find a designated sponsor.
Sponsors supervise the application process and are the main point of contact throughout the exchange program process. The U.S. Department of State actually issues the J-1 visa. USCIS does not issue J visas.
H-1B Visa: Anon-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. H-4 Visa: Spouses and Children under the age of twenty-one (21) in H-1 Status
H-1B is a nonimmigrant visa, with which foreign workers in specialty occupations can work for U.S. employers. Students in F-1 (or J-1) often are the beneficiaries of H-1B petitions filed by employers on their behalf. There are two types of H-1B visas: Cap-subject and Cap-exempt.
For a cap-subject H-1B visa, the application must be filed on or about April 1, and there are only a certain number available. USCIS uses a lottery to randomly select which petitions are processed for the fiscal year. During the last few years, only about 1/3 of the capsubject petitions were selected for processing.
Cap-subject H-1Bs that are processed for the fiscal year must have a start date of October 1, or after.
Currently, for H-1B falling into this category: H-1B visas are capped at 65,000 for each fiscal year (FY)--65,000 minus 6,800 carved out for Chile and Singapore H-1Bs. An additional 20,000 H-1B visas are reserved for foreign nationals holding a master's or higher degree from a U.S. university. If an H-1B petition is in the Master s cap lottery and is not selected, it automatically goes into the general lottery and so has two opportunities for selection.
The maximum amount of time that a person can remain in the same job with the same employer in H-1B status is six (6) years. There are narrow exceptions allowing for a seventh year under particular circumstances. Employees in H-1B status have already been counted against the cap and can seek an extension of their H-1B status up the six year maximum, without having to worry again about the H-1B lottery.
If the H-1B beneficiary changes status within the U.S., a new I-94 is included as part of the approval notice.
One-Year H-1B Extension Rule There is a rule that allows for extensions beyond the six-year H-1B limitation. It requires the initial filing of an employment-based, permanent residence case to be filed at least 365 days prior to the start date requested in the H-1B extension.
One-Year H-1B Extension Rule Continued: This means that the PERM, or permanent labor certification application, must have been filed at least 365 days before the expiration of the sixth year of H-1B status. When a PERM has been filed 365+ days before the end of the sixth year, an additional one year extension is permitted or a seventh year.
The cap-exempt H-1B visa is available for petitioners that are: A not-for-profit institution of higher education. A not-for-profit entity related to or affiliated with an institution of higher education. A not-for-profit research organization or a governmental research organization. Certain for-profit (e.g. consulting/contracting) firms.
If a cap-exempt H-1B beneficiary wants to change employers, the beneficiary cannot use the approved cap-exempt H-1B to change to a capsubject employer.
Initial petitions: 4-6 months in advance, employment may not begin until October 1, unless foreign national still has work authorization through J-1 or other means. Cap-Gap eligible: The Cap-Gap period starts when an F-1 student s status and work authorization expires, and the Cap-Gap period ends on the start date of the approved H-1B employment.
Cap-Gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary s services or training. As a result, the earliest date that an employer can file an H- 1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Note: The student s OPT cannot have expired before April 1 to qualify for Cap-Gap.
Extensions: 2-4 months in advance. No later than three weeks before expiration of current approved H-1B petition, employment authorization for up to 240 days while petition is pending with proof of USCIS I-797C receipt (8 CFR 274a.12).
Transfers/Portability: 4-6 months in advance. No later than three weeks before expiration of current approved H-1B petition, employment authorization for up to 240 days while petition is pending with proof of USCIS I-797C receipt (8 CFR 274a.12). Beneficiary MUST maintain status, with no gaps in employment, in order to qualify for this provision. Change of Status: 4-6 months in advance, employment may not begin until USCIS I-797A approval notice is received (8 CFR 278.1).
PERM: Labor Certification for Permanent Residency Another potential option for keeping a teacher on a longer-term basis than an H-1B is for an employer to sponsor the employee for permanent residency through PERM labor certification if the employer and employee so desire. PERM stands for Program Electronic Review Management.
Filing Timeline of Several Months From the decision to pursue permanent residency via labor certification, to filing the PERM labor certification application (Form ETA 9089), the PERM process usually takes four to six months. There are detailed steps that must be completed. These relate to the employer s efforts to recruit U.S. workers as part of the PERM process. ( Recruitment )
Recruitment The DOL has extensive regulations on the content and form of recruitment efforts. Recruitment must include newspaper ads, a posting on the state workforce agency s job listings site, and posting a Notice of Filing at the worksite. For professional positions, like teachers, three additional forms of recruitment are required.
The PERM process is exacting and requires intensive periods of involvement by the employer and employee, but once the relationship with the law firm and the employer is established and the roles of each are clear, the PERM process is largely able to be replicated. It is also possible to conduct recruitment for many teachers at one time, reducing the necessary time commitment of the employer, as well as increasing efficiency.
School, possible on-campus job or CPT