Immigration Options After F-1 and J-1 Status November 4, 2011 University of Oklahoma
Employment-Based = 2 Main Categories Nonimmigrant Visas vs. Immigrant Visas
Don’t Confuse Visa with Status! Loosely Defined: Visa = Permission to Enter the U.S. Status = Ability to Stay in the U.S.
What is a Nonimmigrant Visa? • The nonimmigrant visa is a visa that allows you to enter the U.S. on a temporary basis for pleasure, business, or, in limited circumstances, to engage in employment. • Over 33.7 Million NIW Admissions Annually • There are roughly 40 different nonimmigrant visa types, not including the those for dependents and support staff. • For example, Ambassadors = A, Crewman = D, Athletes and Artists = P, Business Visitors = B1, Tourists = B-2, etc. • A full list is found at http://travel.state.gov/visa/temp/types/types_1286.html
The Doctrine of Dual Intent • What is the doctrine of dual intent? • In general, the law requires that all nonimmigrants maintain a residence abroad which he has no intention of abandoning. • Provides that although the nonimmigrant at some future date would like to reside permanently in the U.S., at the present time he merely wishes to reside in the U.S. on a temporary basis. Should his temporary stay in the U.S. expire before he attains permanent resident status, he intends to depart the U.S. and reside abroad until he is called for his immigrant visa interview.
The Doctrine of Dual Intent Not all nonimmigrant categories are subject to the nonimmigrant intent requirements. When the nonimmigrant intent requirements are not present, we apply the doctrine of “dual intent.” Dual intent means an intention to immigrate at some time in the future while properly maintaining a nonimmigrant status in the present.
The Doctrine of Dual Intent • The presumption of immigrant intent arises from INA §214(b), which states in part: • Every alien (other than a nonimmigrant described in subparagraph (H)(i) or (L) of Section 101(a)(15)) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15). • Thus, INA §214(b) clearly exempts H-1 (but not H-2 or H-3) and L nonimmigrants from this presumption.
Nonimmigrant Visas • With so many nonimmigrant visa types to cover, we will discuss the five you are most likely to end up with: • F-1 (OPT) • H-1B • TN (NAFTA) • O-1 • L-1
H-1B – Specialty Occupation The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in “Specialty Occupations.” The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum.
H-1B – Specialty Occupation The foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer and any material change in employment usually requires the filing of a new H-1B (location, duties, significant salary increase, title, etc.). One may hold more than one H-1B at a time. One may attend school on H-1B. The dependent of the H-1B is the H-4. The H-4 cannot work but may attend school.
H-1B – Specialty Occupation • Numerical Cap in H-1B Visas Each Fiscal Year: • The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status each fiscal year. Excluded from the ceiling are all H-1B non-immigrants who work at (not necessarily for) universities and non-profit research facilities. This means that contractors working at, but not directly employed by the institutions may be exempt from the cap. • Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. • Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas
H-1B – Specialty Occupation • Maximum Duration of Stay: • The maximum duration of the H-1B visa is six years. H-1B holders who want to continue to work in the U.S. after six years, but who have not obtained permanent residency status, must remain outside of the U.S. for one year before reapplying for another H-1B visa. • There are two exceptions to the six-year duration of the H-1B visa: • If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year increments until a decision has been rendered on their green card application • If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to visa unavailability, they may be entitled to a three-year extension.
H-1B – Specialty Occupation • Timing Issues • U.S. Citizenship & Immigration Services (USCIS) must approve petition before visa can be issued (visa processing can add several weeks) (PIMS) • Current H-1B status holders (current Hs are not subject to annual quota) can begin work for new H-1B sponsor when petition is filed, if they have maintained status and not worked without authorization • All new H-1Bs (straight out of school, hired from abroad, change of status L-1 to H-1B) are subject to the annual quota unless employer is exempt.
H-1B – Specialty Occupation • When can one apply? • 6 month window for application • April 1st “deadline” for Cap-Subject Employers • Timed with release of visa numbers the beginning of each fiscal year • Recruits with May graduate dates may be ineligible to apply as “petition must be approvable at the time of filing.”
TN (NAFTA) Nonimmigrant Status What is it? Who is Eligible? What are the Application Requirements? Spouses and Children NAFTA Professional Job Series List (Appendix 1603.D.1) – “The List”
What is It? • Created as a part of the North American Free Trade Agreement (NAFTA). • Allows citizens of Canada and Mexico to work in the United States so long as they meet strict professional occupation requirements. • Set forth in “The List.” • May not have the intent to remain in the United States permanently.
O-1A Extraordinary Ability • What, When, Where, Who, and How? • What Initial Evidence is Required to File? • What is Extraordinary? • Consultation Requirement • Temporary Event • Dual Intent • Extension of Status
O-1 - What, When, Where, Who, and How? • 101(a)(15)(O) of the INA (8 C.F.R. §214.2(o)(1)(i)) • A qualified alien may be authorized to come to the United States to perform services relating to an event or eventsif petitioned for by an employer. • 101(a)(15)(O)(i) of the INA • An alien who has extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry.
O-1 What, When, Where, Who, and How? • The O-1A classification applies to: • An individual alien who has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and who is coming temporarily to the United States to continue work in the area of extraordinary ability. • The O-1B classification applies to: • An alien who has a demonstrated record of extraordinary achievement in motion picture and/or television productions and who is coming temporarily to the United States to continue work in the area of extraordinary achievement.
What, When, Where, Who, and How? • May not be filed more than one year before the actual need for the alien's services. • Only one beneficiary may be included on an O-1 petition (note that petitions for O-2 aliens must be filed separately from the O-1 alien). • Only a United States employer, a United States agent, or a foreign employerthrough a United States agent may file the O-1 petition. • Filed using two forms: Form I-129 and the O and P Classifications Supplement to Form I-129.
What is Extraordinary? Receipt of a major, internationally recognized award, such as the Nobel Prize, or At least three of the following forms of documentation . . .
Dual Intent “The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition . . . The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States.”
L-1 – Multinational Manager/Executive • What is it? • The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.
L-1 – Multinational Manager/Executive • To qualify for L-1 classification in this category, the employer must: • Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and • Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
L-1 – Multinational Manager/Executive • To qualify for L-1 classification in this category, the employee must: • Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and • Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations.
What is an Immigrant Visa? Strict Definition: An immigrant visa is a document issued by a U.S. consular officer abroad that allows you to travel to the United States and apply for admission as a legal permanent resident (LPR). Loose Definition: A visa that allows you to apply for your green card. It is a prerequisite to filing the I-485 based on employment, employer sponsorship, contribution to U.S. economy or safety and well-being, etc.
Immigrant Visas and the Visa Bulletin Every fiscal year (October 1st – September 30th), approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of U.S. immigration law. Employment based immigrant visas are divided into five preference categories. Certain spouses and children may accompany or follow-to-join employment-based immigrants. Operation of the Numerical Control Process – see http://www.travel.state.gov/pdf/Immigrant%20Visa%20Control%20System_operation%20of.pdf
Immigrant Visas and the Visa Bulletin The Five Preference Categories: First Preference = Priority Workers Second Preference = Professionals Holding Advanced Degrees and Persons of Exceptional Ability Third Preference = Skilled Workers, Professionals, and Unskilled Workers (Other Workers) Fourth Preference = Certain Special Immigrants Fifth Preference = Immigrant Investors
Immigrant Visas and the Visa Bulletin How are the Visas Allocated? First: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers". Fourth: 7.1% of the worldwide level. Fifth: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.
Visa Bulletin June 2011 Employment-Based Preference categories * Does not include Other Worker Category
Side by Side Visa Bulletin Comparison – Employment-Based June 2010 – June 2011
Side by Side Visa Bulletin Comparison – Employment-Based June 2007 – July 2007
EB-1 – First Preference “Priority Workers” • A First Preference applicant must be the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140) filed with USCIS. Labor Certification is not required for these. • There are three sub-groups within this category: • Aliens of Extraordinary Ability • Outstanding Researchers and Professors • Multinational Executives and Managers
EB-1 – First Preference “Priority Workers” Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Such applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have extraordinary ability. Such applicants can file their own Immigrant Petitions for Alien Worker, Form I-140, with the USCIS.
EB-1 – First Preference “Priority Workers” Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. Applicants in this category must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.
EB-1 – First Preference “Priority Workers” Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with USCIS.
EB-2 – Professionals Holding Advanced Degrees and Persons of Exceptional Ability A Second Preference applicant must generally have a labor certification approved by the Department of Labor. A job offer is required and the U.S. employer must file an Immigrant Petition for Alien Worker, Form I-140, on behalf of the applicant. Applicants may apply for an exemption, known as a National Interest Waiver, from the job offer and labor certification if the exemption would be in the national interest, in which case the applicant may file the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest.
EB-2 – Professionals Holding Advanced Degrees and Persons of Exceptional Ability There are two subgroups within this category: Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession. Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
EB-3 - Skilled Workers, Professionals, and Unskilled Workers (Other Workers) A Third Preference applicant must have an approved Immigrant Petition for Alien Worker, Form I-140, filed by the prospective employer. All such workers generally require labor certification approved by the Department of Labor.
EB-3 - Skilled Workers, Professionals, and Unskilled Workers (Other Workers) There are three subgroups within this category: Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal. Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree. Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.
EB-4 - Special Immigrants A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad (see number 3 below). Labor certification is not required for any of the Certain Special Immigrants subgroups.
EB-4 - Special Immigrants • There are many subgroups within this category: • Complete List Found at http://travel.state.gov/visa/immigrants/types/types_1323.html • Most Likely to Encounter = Certain Religious Workers • Some Notable Subgroups: • Certain Iraqi and Afghan interpreters/translators • Certain Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government • Certain Foreign Medical Graduates (Adjustments Only)
EB-5 – Immigrant Investors A Fifth Preference applicant must file an Immigrant Petition by Alien Entrepreneur, Form I-526, with USCIS. Labor certification is not required for Immigrant Investors. To qualify as an Immigrant Investor, a foreign citizen must invest between U.S. $500,000 and $1,000,000, depending on the unemployment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent residents, or other lawful immigrants, not including the investor and his or her family.
To PERM or Not to PERM? EB-1 = No Labor Certification EB-2 National Interest Waiver = No Labor Certification EB-2 Professionals, Skilled Workers and Unskilled Workers = Labor Certification (“Three Step Process”) EB-3 = Labor Certification (“Three Step Process”) EB-4 = No Labor Certification EB-5 = No Labor Certification
The Three Step Process • What is the Three Step Process? • Step 1: Alien Labor Certification (PERM Form 9089) • Filed with Department of Labor • Step 2: Immigrant Petition (I-140, I-526, or I-360) • Filed with USCIS • Step 3: Green Card Application (I-485 or DS Form) • Filed with USCIS or via “Consular Processing” with Department of State
What is PERM? • System for Alien Labor Certification (ALC) • Program Electronic Review Management • Electronic (online) filing and manual filing • Provides an opportunity to file electronically for efficiency and accuracy of information. • Can still paper file but not recommended. • An attestation and audit based system. The form will soon change to iCERT but the process should remain basically the same.
EB-2 Advanced Degree Holders ALC minimum requirements must require a degree or foreign equivalent above that of a baccalaureate degree Master’s degree equivalent: Bachelor’s plus five years progressive post-baccalaureate experience. BS + 5 equivalency requires underlying bachelor’s degree to be the equivalent of a 4 year U.S. bachelor’s degree
EB-2 Advanced Degree Holders: Significant priority date retrogression for India and China Priority dates for countries other than India and China are currently available or “current”