Nonimmigrant Visas and Immigration Basics 2013 Summer Conference Robert F. Loughran 512.852.4142 rloughran@fosterquan.com
Government Agencies Involved Department of Homeland Security US Citizenship & Immigration Services (USCIS) Services and benefits (family and employment); naturalization; special status programs US Immigration & Customs Enforcement (ICE) Interior investigations and enforcement, including SEVIS enforcement; smuggling; document fraud; raids US Customs & Border Protection (CBP) Inspections at ports of entry; Customs functions; border patrol Department of State Issues visas to enter the US
Common Work Visa Options EAD based on F-1 OPT, and OPT STEM Extension (next slide) H-1B Temporary Worker H-1B Chile, Singapore E-3 Temporary Worker (Australians) H-3 Trainee J-1 Exchange Visitor TN Trade NAFTA Worker (not for teachers, unless college professor) O-1 Extraordinary Ability Alien EAD based on pending green card application; and DACA
Employment Authorization Document (EAD) Based upon F-1 OPT STEM Extension Can extend OPT from 12 to 29 months if F-1 Student: On OPT as of filing date of EAD extension; Latest degree must be in Science, Technology, Engineering or Mathematics (DHS STEM Designated Program List); Work in position directly related to the degree; Be employed by or have accepted offer of employment from employer enrolled in E-Verify; and Maintain F-1 status.
H-1B Visa General Requirements Specialty Occupation the position normally requires at least a Bachelor s degree (or equivalent) in an appropriate field of study. Labor Condition Application (LCA) DOL regulations apply regarding required wage and other compliance. Form I-129 and supporting documents are filed with USCIS. Dual Intent is allowed (may pursue green card). H-4 Spouse is not eligible for a work permit. Maximum time period in U.S. is 6 years (less any time spent in L-1 visa status).
H-1B Timeline: H-1B Timeline & Filing Fees 1. Case initiation & collection of documents varies. 2. Obtain certified LCA (Labor Condition Application) from DOL 7 days. 3. USCIS standard processing is 2 4 months; premium processing is 15 days. USCIS Filing Fees: 1. $325 petition fee (+ $290 for family H-4). 2. $500 Anti Fraud fee (initial H-1B only). 3. $1,500 ACWIA fee for Training and Scholarships for U.S. workers ($750 if under 26 employees). Certain employers (e.g., schools) and some petitions are exempt. 4. $1,225 optional Premium Processing fee.
H 1B Employer Obligations Must pay the required wage higher of prevailing or actual wage paid to other employees with similar experience and qualifications for the specific employment in question. No benching allowed wage must be paid at all times except for voluntary leave for employee s convenience or when circumstances render the employee unable to work (e.g., maternity leave). Obtain export license if required due to H 1B s exposure to controlled technology.
Prevailing Wage OES/SOC Code: 25-2021 OES/SOC Title: Level 1 Wage: Elementary School Teachers, Except Special Education $42,940 year Level 2 Wage: Level 3 Wage: Level 4 Wage: Mean Wage (H-2B): $48,063 year $53,187 year $58,310 year $53,190 year http://www.flcdatacenter.com/oeswizardstep2.aspx?statename=texas
Information Needed for H-1B Filings From Employer: Job Title; Worksite Location(s); Minimum Requirements; Salary; and Anticipated Start Date. From Employee (copies only): Resume; Passport; Educational Documents; Certifications; Immigration Documents for employee and dependents, if any, including I-94 (front and back) and approval notices; and completed Questionnaire for new H-1Bs.
Additional H-1B Employer Obligation: Prepare and Maintain H-1B Public Access File (PAF) Signed & Certified LCA Form 9035/9035E; Cover Pages of LCA Form ETA 9035CP; The wage rate to be paid to the H-1B employee, and explanation of the company s Actual Wage System; Documentation of Prevailing Wage Used; 2 Notices of Filing LCA with Posting Certification (Paper or Electronic); Employer Benefits Summary; Public Access File must be kept for 1 year after completion of the H-1B employment. If no employee was employed under the LCA, must be retained for 1 year after LCA expired or was withdrawn.
When is a New LCA and Amended H-1B Petition Needed? When there is a material change in the terms and conditions of employment. Examples: Change of worksite location outside area of intended employment. Major change in job duties and responsibilities. Significant decrease in salary. Switching from full-time to part-time (and vice versa).
Are there any exceptions to the 6 year maximum period of stay in H-1B status? Yes Extensions are possible if certain steps in the green card process have been timely accomplished: Additional 1 year extension if PERM or Immigrant visa petition Form I-140 has been filed at least 1 year before 6 year maximum, or Additional 3 year extensions if I-140 is approved but priority date is not current due to per country visa limits. Recapture any time spent outside the U.S. Otherwise, employees that reach the end of their 6-year period of stay must leave the U.S. for one continuous year before being permitted to re-enter and start the 6-year clock anew.
H-1B Employer Obligations for Terminated H-1B Employees Employer liable for return transportation costs to home country if H-1B worker involuntarily terminated before H 1B expires (not liable for H-4 family). When employee leaves/terminates before H 1B expires, contact attorney to notify USCIS & DOL to request revocation of the H 1B petition and LCA.
Path to Permanent Residence ( Green Card ) Three basic ways: Family: Close familial relationship with a U.S. citizen or Lawful Permanent Resident: Spouse Parent Adult son/daughter Adult sibling Employment: Permanent job offer with a U.S. employer (3-step and 2-step process). Visa Lottery: Diversity Visa for certain nationals.
Overview of Employment-Based Immigration Typically, a 3-step process: Step 1: Labor Certification (PERM) recruitment needed to determine if no U.S. workers are willing, available, able and qualified to perform the position. Step 2: Immigrant Petition (I-140). Step 3: Adjustment of Status Green Card Application (I-485), with initial employment authorization document (EAD) and travel document (advance parole).
The Visa Bulletin How it Applies and Why it is Important Impacts the wait-time to obtain Lawful Permanent Residency. Three essential factors: Priority date. In most cases, the priority date is the date the PERM was filed. If a PERM was not filed, it is the date the I-140 was filed. Preference category. Country of chargeability.
Continue to wait. What Happens if a Visa is Not Available? Maintain valid nonimmigrant status while pursuing permanent residence. USCIS cannot approve a pending green card application. Department of State cannot issue an immigrant visa at a U.S. Consulate abroad.
Questions? Robert F. Loughran 512.852.4142 rloughran@fosterquan.com