Immigration Options Post Student Years: Immigration Options March 26, 2015 Lisa T. Felix, Esq....

Post Student Years:

Immigration OptionsImmigration Options

March 26, 2015

Lisa T. Felix, Esq.

Klasko Immigration Law Partners, LLPPhiladelphia New York Chicago

www.klaskolaw.com

Klasko Immigration Law Partners, LLP

Lisa T. Felix, Esq.

Lisa Felix represents corporate and educational clients who seek to hire or transfer foreign employees, as well as foreign individuals seeking employment in the United States. She advises employers on immigration compliance, responding to government investigations, and immigration strategy and planning.

Before practicing as an attorney, Lisa worked extensively in higher education, providing immigration services to students, faculty, researchers, and administrators at the University of Pennsylvania, the State University of New York at Buffalo, and at Southern Illinois University–Carbondale’s branch campus in Niigata, Japan.

Lisa is an active member of the American Immigration Lawyers Association, where she has served as co-chair of the AILA Philadelphia Chapter's Pro Bono Committee, and on the organizing committee of the chapter’s annual conference. Lisa is a returning member of NAFSA: Association of International Educators.

Lisa is a 2005 graduate of Temple University’s Beasley School of Law.


Agenda

Non-Immigrant Status H-1B Requirements H-1B Alternatives Introduction to Permanent Residency Q&As

For more information, visit www.klaskolaw.com


Non-Immigrant Visas

Non-Immigrant Status (NIV)H, F, J, O, etc.Limited durationSpecific to employer / institutionSpecific to purpose (work/study/tourism)May require a showing of non-immigrant intent



Maintaining Lawful Status

‘Status’ Permission to remain in the U.S. for a fixed periodDenoted by ‘I-94’ card

(for Fs – with I-20; for Js – with DS-2019)Permissible activities in the U.S. determined by

statusCan only hold status in one classification at a time

(i.e. – cannot have an F and an H)



Maintaining Lawful Status

I-94, Arrival / Departure RecordTwo 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


(cont’d)


Post F/J NIV OptionsH-1B Visas

H-1B: ‘specialty occupation’ Employer petition on your behalfLegal/filing fees to be paid by employerPosition that normally requires at least a

bachelors degree in a related fieldEmployer must agree to pay ‘prevailing wage’



H-1B Visas

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



H-1B Issues for Start-Ups


Must have employer tax I.D. number Company owned by H-1B employee?

Must be W-2 employeeSeparate entity from owner/employee

Company right of control over employee Is there a Board of Directors? Who has ability to hire/fire


H-1B Issues for Start-Ups


Company must proveFinancial ability to pay salaryReal job to be done by H-1BPlace of business

Business plan/financial projections Prevailing Wage

CEO vs. function-descriptive position

(cont’d)


H-1B Quota


What is it and what does it mean?20,000 for US awarded advanced degrees

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 2010 gone on April 1-5 (Lottery) FY 2009 gone on April 1-5 (Lottery)


H-1B Quota(cont’d)


65,000 H-1Bs 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 FY 2008 gone by April 2007


Avoiding H-1B Quota

Exemption based on employer Universities Non-profits affiliated with universities

Increased scrutiny of affiliations

Non-profit research organizations Government research organizations



Avoiding H-1B Quota

Exemption based on employeePreviously counted (in last 6 years)Singapore/ChileConcurrent employment

(cont’d)



Change of status vs. consular visa issuance Visa – Permission to re-enter the U.S. after a trip

abroad (stamp in passport) Need visa in specific classification to re-enter in that

status Status – Permission to remain in the U.S. for a fixed

period (denoted by ‘I-94’ card and I-20 or DS-2019) Only hold status in one classification at a time

(i.e. – cannot have an F and an H)For more information, visit www.klaskolaw.com

Travel and Status Issues for H-1B Approvals


Travel and Status Issues Travel after April 1

Depart US, relinquish I-94F visa to come back to use OPT?What about H? What happens to petition?

Maintaining status until October 1 “Cap gap” reliefOPT must be valid at time H-1B petition is filedExtends only until September 30

(cont’d)



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 knowledgeSpouse eligible for employment authorizationMaximum 7 years in L status

NOTE: H & L combined – max 7 years



Alternatives: Es

Must be national of treaty country http://www.travel.state.gov/visa

Employing company must be owned at least 50% by treaty country nationals

No quota and can be extended indefinitely Spouse eligible for employment authorization



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 Must evidence non-immigrant intent



Alternatives

I visa – journalists for media outside US O visa

Artists with distinction in field; or Scientists with extraordinary ability

E-3 – Australians only, similar to H-1B Dependent on spouse visa



Permanent Residence

Authorization to Live & Work Indefinitely in the United States

“Immigrant Visa” The “Green Card” or “Form I-551” Not always ‘forever’ – may be abandoned or

taken away



Immigrant vs. Non-Immigrant

Immigrant Visa Green Card/Permanent Residency

Non-Immigrant Visa (NIV) H, F, J, O, etc. Limited duration Specific to employer/institution Specific to purpose (work/study/tourism)



Nonimmigrant to ImmigrantF-1 – attend school

F-1 OPT – start work

H-1B/L-1 – continue working;max 6 years total in H, 7 in L

H-1B – change employer, continues to count against 6 years maximum (L trickier to change)



Nonimmigrant to ImmigrantH-1B – change employer, requires new petition

may start working under ‘H-1B portability’

4th 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?



How Do I Apply?

Family Investment Asylum Employment DV Lottery



Permanent Residence Quotas


■ Annual Limit on Permanent Residency

■ Per Country Limit – 7%

■ Allocated by:Priority Date – place in linePreference Category



■ Employment Based Preference Categories:First Preference (EB-1)

■ Extraordinary Ability ■ Outstanding Researcher ■ Multinational Executive

Second Preference (EB-2)■ Advanced Degreed Professionals■ Equivalent

Bachelors plus 5 years experience Exceptional Ability


(cont’d)


■ Third Preference (EB-3)Skilled Worker (2+ years experience) Bachelor’s Degree

■ Fifth Preference (EB-5)$1 Million Investment in the U.S. that creates

at least 10 U.S. jobs



(cont’d)


Permanent Residency Quotas, Where Are We Now?

Vis

a B

ulle

tin fo

r A

pri

l 201

5

EmploymentBased

All Charge-ability Areas Except Those

Listed

CHINA- mainland born

INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01APR11 01SEP07 C C

3rd 01OCT14 01JAN11 08JAN04 01OCT14 01OCT14

Other Workers* 01OCT14 15AUG05 08JAN04 01OCT14 01OCT14

4th C C C C C

Certain Religious Workers C C C C C

5th Targeted Employment

Areas/Regional

Centers and Pilot

Programs

C C C C C


Considerations in Employment Based Applications

Employer-sponsored or self-sponsored Labor certification or extraordinary/NIW Filing multiple under different categories? Multi-Step Process

Department of Labor? USCIS: I-140 USCIS: I-485

Non-Immigrant Status?For more information, visit www.klaskolaw.com


Materials

Please visit www.klaskolaw.com to download this PowerPoint presentation and relevant articles.



Lisa T. Felix, Esq.

[email protected]

215.825.8600


Philadelphia New York Chicago

For Further Information


www.klaskolaw.com

www.eb1immigration.com

www.worksite-compliance.com

www.eb5immigration.com

http://blog.klaskolaw.com

online


DISCLAIMER / COPYRIGHT NOTICE

The materials 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 © 2015 Klasko Immigration Law Partners, LLP.All rights reserved.

Copyright © 2015. All rights reserved.

Immigration Options Post Student Years: Immigration Options March 26, 2015 Lisa T. Felix, Esq....

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