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Post Student Years: Immigration Post Student Years: Immigration OptionsOptions
November 2009
Klasko, Rulon, Stock & Seltzer, LLP
Kate Kalmykov, Esq.Philadelphia - New York
Klasko, Rulon, Stock & Seltzer, LLP
Kate Kalmykov, Esq.
Kate Kalmykov, an Associate in the Firm's New York City office, focuses her practice on business immigration.
Kate regularly works with corporate clients, hospitals and universities on providing creative immigration solutions to visa and work authorization needs of foreign nationals including skilled workers, persons of extraordinary ability, managers and executives, professionals, treaty investors and traders, as well as corporate trainees.
Kate received her J.D. from the American University and is admitted to practice in New York and New Jersey.
A member of the American Immigration Lawyers Association, Kate chairs the New York CLE Committee and serves as Secretary of New York District Office Liaison Committee.
Klasko, Rulon, Stock & Seltzer, LLP
Hot Topics in Immigration Law Agenda
H-1B Visas H-1B Alternatives Extending Your OPT Permanent Residence Status Travel Issues Q&As
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Visas
Basic requirements Job Offer Prevailing Wage Bachelors or higher degree Specialty occupation
Procedure and processing times Specialty occupation issues Part-time or full-time Length of approval Extensions Portability Spouses and Employment Authorization Travel
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Quota
What is it and what does it mean? 65,000 H-1Bs
FY 2010 still going! FY2009 gone by April 2008 FY2008 gone by April 2007 FY2007 gone by May 2006 FY2006 gone by August 2005 FY2005 gone by October 2004
20,000 for US awarded advanced degrees FY 2010 gone by April 2009 FY2009 gone by April 2008 FY2008 gone by April 2007 FY2007 gone by August 2006 FY2006 gone by January 2006
Klasko, Rulon, Stock & Seltzer, LLP
Avoiding H-1B Quota
Exemption based on employer Universities Non-profits affiliated with universities Non-profits or gov’t research organizations or place of employment, law says “at”
Exemption based on employee Previously counted Singapore/Chile Concurrent employment
Klasko, Rulon, Stock & Seltzer, LLP
Can’t avoid the quota, planning strategies?
Filing April 1 for Oct 1 start date CAP GAP Relief
Going from quota exempt to quota subject Portability? Concurrent employment? Working “at” University or non-profit
Klasko, Rulon, Stock & Seltzer, LLP
2009-2010 Issues
■ Fewer job offers■ Uncertainty- quickly reaching the cap in past
years vs. FY 2010■ Effect of TARP requirements■ Impact of layoffs■ Increased opportunities for investors and
entrepreneurs
Klasko, Rulon, Stock & Seltzer, LLP
H-1B and TARP Recipients
American Recovery and Reinvestment Act of 2009 requires certain H-1B to attest to: good faith efforts steps to recruit U.S. workers; no U.S. worker was displaced by the employment
of an H-1B worker either at the employer's own worksite, or at any outside worksite where the employer
has placed an H-1B worker.
Klasko, Rulon, Stock & Seltzer, LLP
H-1B and TARP Recipients
Which Employers Are Required to Make the Additional Attestations: Recipients of TARP funds
http://www.financialstability.gov/latest/index.html
Recipients of FRA Section 13 funds Recipient determination depends upon the type of borrowing
arrangement between the entity and the Federal Reserve Term Asset-Backed Securities Loan Facility (TALF)
(received discounted gov’t loans) What is TARP funds are repaid? It’s unclear.
Klasko, Rulon, Stock & Seltzer, LLP
Alternatives to H-1B
O-1 (extraordinary ability) E-3 (Australians) TN (Canadian/Mexicans) J-1 (new rules limiting applicability) E visas (treaty between home & U.S.) L visas (intra-company transfer to U.S.) I visa (journalists – disseminate news abroad) OPT Extension- STEM
Klasko, Rulon, Stock & Seltzer, LLP
Alternative Visa Options (cont’d)
EAD through spouse’s status J-2 E L-2 I-485
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Family Investment Asylum Employment Diversity Visa Lottery
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
Employer-sponsored or self-sponsored Labor certification or extraordinary/national
interest/exceptional Multiple petitions
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment (Cont.) Extraordinary Ability or
Outstanding Researcher/ Professor EB-1 Standards Documentation Reference letters
National Interest Waiver EB-2 Standards
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment (Cont.)
Labor Certification Application (PERM) Employer Sponsored Recruitment Prevailing wage Legal issues Timing First of 3 steps EB-2 or EB-3
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusAdjustment of Status (I-485) Timing
Preference categories/quotas Priority dates Processing times
Concurrent filing (I-140/I-485) Employment Authorization Advance Parole
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusAdjustment of Status (I-485) Adjustment Portability H-1B Extensions
One Year Three years
Spouses
Klasko, Rulon, Stock & Seltzer, LLP
Travel Issues
Potential Problems Intent to return – F & J vs. H & O Visa interview delays Security clearances Technology Alert List 222(g)
Possible solutions Don’t travel Canada/Mexico Advance Parole
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