© 2008, mcnair law firm, p.a. university of south carolina international student services october...

© 2008, McNair Law Firm, P.A.© 2008, McNair Law Firm, P.A.

University of South CarolinaInternational Student Services

October 27, 2009

Joy MandanasMcNair Law Firm, P.A.

[email protected]

© 2008, McNair Law Firm, P.A.

Immigration Fundamentals:

Status Who is Authorized to Work in the United States Nonimmigrant Visas

H-1B Process Green Card Process

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Overview


Immigration Status: Who Can Work?US Citizens

Birth CertificateUS Passport, Passport Card

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Immigration Status: Who Can Work? Permanent Residents (“Green Card”)Reside and work in US permanentlyPermanent Resident card, I-551 stamp in passport

New Green Card summer 2009

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Immigration Status: Who Can Work?Nonimmigrants with Work Authorization

Work Visa: E-2, H-1B, L-1, TNI-94 Departure Record: type of visa, date and place of

entry, expiration of authorized period of stay

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Immigration Status: Who Can Work?

Nonimmigrants with other temporary work authorizationOPT EAD

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Example: illegal, butauthorized to workSanjay enters as F-1 studentMeets and marries Maggie, US citizenSanjay graduates, lawful student status expiresMaggie sponsors Sanjay for green card, Sanjay gets EADProcessing times: 3-6 months, Sanjay authorized to work

with EADThey live happily ever after

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Nonimmigrant Work VisasE-1/E-2: treaty traders & investorsJ: professors, medical residents, etc.L: intra-company transfereeO: outstanding business, arts, sciencesP: performing artists; international renownR: religious workersTN: Canadian & Mexican professionalsE-3: Australian professionals

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Purpose of H-1B VisaUS employers hire educated foreign professionals on a

temporary basis.Alleviate shortages of US professionals in these positions.US businesses use unique skills and knowledge in short

supply.Facilitate recruitment of special expertise from overseas

markets to let US businesses compete in global markets.Recruit foreign graduates from US universities.Professionals in “Specialty Occupations”

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H-1B “Specialty Occupation”

Job normally requires a degree in a particular field of education

Degree must be bachelor’s or higher

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Qualified ProfessionsMedical doctors EngineersTeachers Fashion DesignersAccountants General ManagersJournalists Social WorkersPharmacists Financial Analysts

Jobs requiring any STEM designated degrees

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H-1B Limitations?Temporary, nonimmigrantEmployer-specific6 years (exceptions)Limited number of visas

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H-1B Visa CapOctober 1 – September 30 fiscal year 65,000 per yearLess 6,800 for Chile & Singapore (58,200) H-1B1US Masters cap exemption: additional 20,000Other cap exemptionsFMG’sNonprofit employersIncreased demands in years past, not reached this

year

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What do I need to get an H-1B?Before you can apply for H-1B, you must have…

Job offer in a position requiring your degreeDegree (graduation)License, if applicable

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How do I get an H-1B petition?If legally in US or within 60-day grace period,Employer files COS

If outside US or out of status:Employer files H-1B petition with CIS.When approved, you get visa abroad.You return to US w/ new visa, new I-94 card.

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Who files H-1B petition? Employer

LCA with Department of LaborNo strike, lockoutNo adverse affect on wages/working conditions

H-1B petition with CISApproved petition before work beginsNo self-employment

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Employer’s H-1B Obligations

Pay filing feesPay higher of “prevailing” wage or “actual” wage”Offer benefits same as US workersPost notice (LCA)Termination by employer: Employer pays

return/home transportation

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How early can my employer file?

No more than 6 months before H-1B employment begins.

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How long does H-1B processing take?As of July 31, 2009, VSC and CSC 2 months

Premium processing: 2 weeks with additional $1,000 DHS filing fee

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H-1B Time LimitsMaximum 6 yearsNo more than 3 years at a time

What if my 3 years is expiring?Before H-1B status expires, file extension and request no more than 3 additional years.

Exception to 6 year max: You have LC pending for more than 1 year1-year extension3-year extension if I-140 approved

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Can I work for any other employers on my H-1BOnly for an employer who filed an H-1B petition

for you.

Concurrent H-1B petitions. Subsequent petition must be filed before work begins.

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Can I change employers?Yes. H-1B is portable.How? New employer files petition

Before you leave first employer ANDBefore you start work for second employer

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I got laid off. Does this affect my H-1B status?If you quit your job or are terminated, you are no

longer in lawful immigration status.

If you let your H-1B status lapse before filing an extension, you are also considered unlawfully present.

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What about my family?“H-4” Visa: spouses and children under age

21.

Spouse cannot work.Spouse and children can go to school.

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What is a “green card?”Permanent residenceCan live and work in the US indefinitely.Card used to be green.

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Can I apply for my green card while I’m in H-1B status?

Yes. Most NIV’s require intent to return home.

H-1B allows “dual Intent.”Can be in green card process and maintain H-

1B visa and status.Can extend H-1B status while in green card

process.26


Green card restrictions: immigrant visa backlogEmployment-based IV petition

Preference petitions: EB-1, EB-2, EB-3

140,000 immigrant visas, no more than 7% per country

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Green card restrictions: immigrant visa backlogVisa Bulletin (http://travel.state.gov)Priority DatesAll EB-1 currentChina and India EB-2 backlogged

India: January 22, 2005China: April 1, 2005

All backloggedIndia: April 22, 2001Rest of the world: June 1, 2001

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Does IV backlog apply to me?EB cases have 2 or 3 steps:

LC, I-140, I-485 or IV petition

If IV category backlogged, can’t file I-485 or IV petition

No IV = no green card

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EB Green Card CategoriesEB-1: Outstanding Researchers, Extraordinary Ability

Aliens, and Intracompany TransfereesEB-2: Jobs requiring masters degree or higher

Requires Labor CertificationWaiver (of the LC) in the National Interest

EB-3: Jobs requiring bachelors degree or 2 years of experience or trainingRequires Labor Certification

EB-5: Investor, “million dollar” green card

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“Pre-Certified” Green CardsLabor Certification not required

Registered NursesPhysical Therapists

Aliens of “Exceptional Ability”

These are EB-3

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Diversity IV LotteryLow admission regions and countries

Excludes: Brazil, Canada, China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, The Philippines, Peru, Poland, South Korea, UK (except N. Ireland), Vietnam

Includes Hong Kong SAR, Macau SAR, Taiwan

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Diversity IV Lottery Requires high school education or 2 years work

experienceList of qualifying occupations

50,000 visas

Apply October 2 – November 30, 2009Online registration only: www.dvlottery.state.gov

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SummaryH-1B: professionals in “specialty

occupations”Temporary: 6 year maximum65,000 cap, not a factor this yearEmployer-specific: (no self-employment)Can pursue green card while in H-1BMany green card options, IV backlog

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Disclaimer Immigration law is complex. This presentation only provides summary information and

should not be used for legal analysis. Please consult an attorney for specific legal advice.

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© 2008, mcnair law firm, p.a. university of south carolina international student services october...

Documents

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overview slide

work authorization work

us businesses

b visa us employers

temporary work authorization

us universities

immigration status