© 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.
© 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
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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
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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
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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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Joy MandanasMcNair Law Firm, PA
Columbia, SC803.799.9800