LIFE AFTER F-1 – U.S. VISA OPTIONS FOR RECENT GRADUATES

Lisa Ellis – Ellis Immigration Law, LLC

Ursula Elspeth Owen - UW

• H-1B Temporary Workers• Employment, Training, and Investment-based

Alternatives• Family-Based Options• Exchange-Based Options• Extraordinary & Unusual Visas• Vulnerable Class Visas• Q&A

Today’s Agenda

H-1B Temporary Workers

For temporary workers in a “specialty occupation”; can get up to six years, compatible with green cards (“dual intent”)

Requires: Employer sponsorship and petition to USCIS;

employer must pay all fees (USCIS and attorneys’) Position requiring at least a bachelor’s degree in a

relevant field and paying the “prevailing wage” Foreign national must meet all requirements,

including state licensure (where applicable) Lots of labor protections (no layoffs or lockouts,

posting notice to US workers, no wage depression)

THE CAP

New H-1Bs are numerically limited to 65,000/year (+20,000 for holders of Masters’ degrees).

H-1Bs are allocated in the “H-1B lottery” starting on April 1. This year, USCIS received 233,000 petitions before they closed the lottery.

New H-1B employment can start on October 1 of the same year.

Cap-Exempt Employers

Institutes of higher education + affiliates Nonprofit research institutions Nonprofit primary or secondary schools Nonprofit clinical training institute

But remember, moving from cap-exempt to cap-subject means going through the lottery again!

• E-1/E-2 Investment Visa• H-3 Trainee Visa• Treaty Visas: TN, E-3, H-1B1• Employment-based Green Cards: EB-2 and

EB-3

Employment, Training, Investment

E-1 Treaty Traders

For nationals of countries with treaty with the U.S. who are engaged in “substantial” and “principal” trade between their home country and the U.S., and their employees

Requires visa application if coming from abroad, or petition to USCIS if changing status in U.S.

“Treaty countries” available at http://travel.state.gov/content/visas/english/fees/treaty.html Principal trade = More than 50% of total volume of trade should be with

U.S. and treaty country Substantial = Trade sufficient to ensure a continuous flow of international

trade

E-2 Treaty Investor

For nationals of treaty countries investing a “substantial amount of capital” in a U.S. enterprise, and their employees

Requires visa application if coming from abroad, or petition to USCIS if changing status in U.S.

Investment must: • be an active investment

with funds at risk• support more than investor

and family

“Treaty countries” available at

http://travel.state.gov/content/visas/english/fees/treaty.html

“Substantiality test”- amount of funds invested are weighed against the total cost of purchasing or creating the enterprise

H-3 Trainees

For trainees receiving training (aside from graduate medical education) not available in home country; includes trainees in special education Requires sponsorship by U.S. training organization and

petition to USCIS NOT an employment visa; productive employment

should be incidental to training Training program must be carefully scheduled and show

classroom time Trainees are expected to to leave the U.S. at end of

training period to use training acquired abroad Can receive up to 2 years total (or 18 months for special

education exchange visitors)

NAFTA Professionals - TN

For Canadian and Mexican nationals who have offer of employment in NAFTA occupation and requisite qualifications.Canadians can apply at border; Mexicans must apply at U.S. Consulate in MexicoNAFTA occupations include: University and college teachers Scientists Medical professionals (with visa screen) List at http://canada.usembassy.gov/visas/doing-

business-in-america/professions-covered-by-nafta.html

More about TNs

No Labor Conditions Application or petition to USCIS necessary – SUPER QUICK.

Can be extended by filing with USCIS, or just leaving country and reapplying at border (for Canadians) or consulate (for Mexicans)

No limit on number of years No numerical caps Foreign national must have required

credentials (usually a bachelor’s or equivalent) under NAFTA

E-3 Australian Specialty Worker

For Australian nationals in a specialty occupation (“H-1B Lite”) Requires employer sponsorship, but not

petition to USCIS; can apply directly at US consulate in Australia

Does require Labor Conditions Application and associated labor protections, and is otherwise similar to H-1B

Can receive up to two years at a time; renewable indefinitely

H-1B1 Chilean or Singaporean Specialty Worker

For Chilean or Singaporean nationals in a specialty occupation (“H-1B Lite”)• Different numerical cap (1400 for Chileans,

6400 for Singaporeans)• Requires employer sponsorship, but not petition

to USCIS; can apply directly at US consulate• Does require Labor Conditions Application and

associated labor protections, and is otherwise similar to H-1B

• Can receive up to 18 months at a time; renewable indefinitely

Employer-sponsored Green CardsRequire employer sponsorship and filings with both Department of Labor and USCISEB-2: Advanced Degree Professional for positions requiring a master’s degree or aboveEB-3: Skilled Worker for positions requiring at least a bachelor’s degree

Depending on category and country of origin, both of these categories may have substantial wait times.

• Dependents: who can work?• Family-based adjustment• Family-based waiting

Family-based Options

Who can work?

The following are eligible to work after applying for and receiving an Employment Authorization Card:• Certain H-4s • J-2s• E-3Ds• L-2s• T-2, -3, and -4s• U-2, -3, -4, and -5s• Adjustees (persons in the process of applying for a

green card)The following can work without an EAD:• Asylees/Refugees

Both spouses and children who are above the age of 14 can work!Remember!

Family-based adjustment

For “immediate relatives” of U.S. citizens inside the U.S.Requires petition by relative and subsequent application to USCIS. While that application is pending, they can receive travel and employment authorization.Immediate relatives include:• Parents• Spouses• Children under the age of 21If these relatives are outside of the U.S., they can

apply for an “immigrant visa” at a U.S. consulate.

Visa Bulletin Issues

People who aren’t immediate relatives may have long wait times to get their green cards. For example:

See the monthly Visa Bulletin (http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html) for wait times.

Unmarried adult children of USC’s in the Philippines: 10 yearsSpouses and children of LPRs in Mexico: 20 yearsMarried adult children of USC’s in the Philippines: 22 yearsSiblings of USC’s in the Philippines: 24 years

Visa Bulletin Issues

People who aren’t immediate relatives may have long wait times to get their green cards. For example:

Unmarried adult children of USC’s in the Philippines: 10 years

Spouses and children of green card holders in Mexico: 20 years

Married adult children of USC’s in the Philippines: 22 years

Siblings of USC’s in the Philippines: 24 years

See the monthly Visa Bulletin (http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html) for wait times.

• J-1 Exchange Visitors• P-2, P-3, and Q Cultural Exchange

Visitors

Exchange Visas

J-1 Exchange Visitors

For persons coming to the U.S. to engage in study- or work-based exchange Requires sponsorship by a designated J-1 program

sponsor May result in 212(e) two-year foreign residence

requirement Changes of status to J-1 disfavored, and expectation

that J-1 will return home rather than changing to another visa in US

Can be obtained for up to five years, depending on category

Cannot be used for tenured or permanent positions

J-1 Categories of Interest

Short-term Scholar/Research Scholar/Professor For observers, researchers, or professors – up to 5 years

Short-term ScholarFor short visits – up to 6 months

SpecialistFor people with unique skill sets – up to 1 year

InternFor students in foreign countries – up to 1 year

TraineeFor experienced workers in foreign countries – up to 18 months

P-2s, P-3s, and Qs

P-2s for performers in designated reciprocal exchange programs

P-3s for performers, artists, or teachers in culturally unique programs

➥ Both require an advisory opinion from a labor organization

Qs for participants in international cultural exchange programs• Cultural component must be integral & essential to

training/employment component• Up to 15 months with one-year bar on repeat

participation

ALL of these require a petition to USCIS.

• O-1 Extraordinary Ability• P-1 Athletes• EB-1 and National Interest Waivers

Extraordinary Class Visas

O-1 Extraordinary Ability

O-1A: Sciences, education, business, or athletics

O-1B: Arts, motion picture, or television

Requires evidence of extraordinary ability or achievement and advisory opinion from peer organization – OR you can just have a Nobel Prize, Academy Award, Grammy, Emmy, or Director’s Guild Award.

P-1 Athletes and Entertainment Groups

P-1A: for athletes or teams coming to the U.S. to compete in athletic events at an international level of performance; can get up to ten years

P-1B: for internationally recognized entertainment groups; can get up to two years

Requires: Sponsor petition to USCIS An advisory opinion from a peer

organization, like the O-1

EB-1 and EB-2 Special Green Cards

EB-1A Extraordinary Ability*EB-1B Outstanding Researcher/ProfessorEB-2 Exceptional AbilityEB-2 National Interest Waiver*

May be worthwhile for persons from backlogged countries, but are a lot of work.

*Employer sponsorship not required

Burden of Proof

• Temporary Protected Status• DACA• Asylum• S, T, and U visas• VAWA petitions

Vulnerable Class Visas

Temporary Protected Status

For persons from certain countries undergoing armed conflict or other humanitarian crises

Applicants must • “Register” with USCIS during an open registration

period• Have continuous physical presence and continuous

residence in US for certain periods

Can get up to 18 months and employment authorization

TPS countries currently include: Guinea, Liberia, Sierra Leone, South Sudan, and Syria

DACA

Deferred Action for Childhood Arrivals – for persons brought to the U.S. as children.Applicants must:- Apply to USCIS for consideration- Have continuously resided in US since

06/15/2007- Have been under 31 on 06/15/2012Can get employment authorization, but no path to green card or citizenship.

Asylum

For persons who have experienced, or have a reasonable fear of, persecution based on their race, religion, nationality, political views, or social group.

Must apply to USCIS within one year of arriving in U.S., or have good reason why they didn’t

Can get work permit and green card Can bring spouse or children to U.S.

S, T and U visas

S for informants and witnesses – must be filed for by US law enforcement agencyT for trafficking victims – must include declaration from US law enforcement officerU for certain crime victims who participated in investigation or prosecution – must include certification from US law enforcement agency

All three eligible for work permit and eventual green card

VAWA Petitions

For battered spouses, children, or parents of US citizens and battered spouses or children of green card holders • Requires self-petition to USCIS• Can file without notification to abuser, or even if abuser is deceased

• Can get work permit and eventual green card

Any Questions?

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