h-1b and u.s. permanent resident petitions: what you need ... · •nonimmigrant “dual intent”...

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C.

H-1B and U.S. Permanent Resident Petitions: What You

Need To Know

Lori Chesser

Marina Grabchuk

Davis Brown Law Firm


Disclaimer

• The following information was prepared for apresentation at Iowa State University onNovember 16, 2015.

• It is an overview only and should not beconsidered legal advice on any particularsituation.

• We urge any person reading this information toconsult with an experienced immigrationattorney to answer specific legal questions.


The Immigration Process Overview

Student status, including CPT & OPT

H-1B temporary work status

Permanent Residence (“green card”)


H-1B Process

File H-1B Petition with USCIS

“Premium Processing” available When filing is possible depends on the H-1B “cap”

File Labor Condition Application (“LCA”) electronically (7 days processing time)

Employer must offer the higher of the “prevailing wage” or “actual wage”

Notice posting and file retention on employer site

Job offer that qualifies for H-1B (“specialty occupation”)

“Normal” requirements for the job Your qualifications


H-1B “Cap”

The Cap

• A limited number of H-1Bs each fiscal year

• Lottery conducted to determine who receives them

Timing

• Applications filed the first 5 business days in April

• H-1B cannot start until October 1

Other

• Must be in status on October 1 for change of status

• OPT automatically extended (“cap gap”)


Cap Exemptions

Working for

• An institution of higher education (college or U)

• A non-profit affiliate of a college or U

Working at

• An institution of higher education (college or U) –job physically located and aligned with mission

Concurrent

• Filing for a cap-subject employer while working in a cap-exempt position at the same time


More Cap Exemptions

Already counted

• Filed and approved cap-subject H-1B extending stay or changing employers

Certain doctors

• Physician that obtained a J-1 waiver under the Conrad 30 program

NOTE

• If working in a cap-exempt position, no change of employer to cap-subject position unless through the lottery


Alternatives to H-1B

School

STEM OPT 17–month extension

Another degree program/CPT

Other categories

J-1 training

H-3 Trainee

O-1 extraordinary ability

Special

TN (Canada or Mexico)

E-3 Australia

H-1B1 Chile & Singapore

E for Treaty Countries

L-1 if work outside the U.S. for one full year for an international company


STEM OPT EXTENSION RULE

On October 19, 2015 DHS published proposed STEM OPT Rule.

Public has until November 18, 2015 to comment on the proposed rule.

Washington Alliance of Technology Workers v. DHS - WashTechLawsuit challenged 2008 regulations that created STEM Extension.

Federal Court found violation of Administrative Procedures Actand granted DHS six months to re-publish the rule.


STEM OPT PROPOSED RULE

SUMMARY

• Extends 17-month STEM OPT period to 24 months.

• Increases total OPT time to 36 months!

• Authorizes STEM OPT Extensions only for students employed by employers enrolled in E-Verify.

• Includes “Cap-Gap relief”

• Improves program value, integrity, and oversight - i.e. adding wage protections.


STEM OPT PROPOSED RULE

SUMMARY (cont’d)Defines STEM fields more clearly

Allows a prior degree to qualify for STEM so long as most recent degree is also from a accredited institution

Requires employer to create a mentoring and training plan

Employer must also agree to safeguards to US workers (similar to H-1B attestations

Unemployment period lengthened to 150 aggregate

Additional compliance requirements for schools and students


Skipping H-1B Option?

• For a person who can use STEM OPT andwhose immigration is not subject to a waitingline, 29 (or potentially 36 in the future)months should be sufficient for green cardprocessing without utilizing H-1B.

• Restrictions on international travel and otherconcerns could make this strategy inadvisable.


O-1 EXTRAORDINARY ABILITY

Validity

• Nonimmigrant “Dual Intent” visa.

• Valid for up to 3 years and renewable indefinitely.

Petition• Employer specific but can hold dual O-1s.

• Premium Processing available.

Note

• Can obtain O-1 visa at the consulate even if subjectto J-1 two-year foreign residence requirement.


O-1 ELIGIBILITY• For individuals who possess extraordinary ability in

sciences, arts, education, business, or athletics.

• Achieved a level of expertise indicating that the personis one of the small percentage who has risen to verytop of the field of endeavor.

• Must demonstrate sustained national or internationalacclaim and recognition for achievements in the field.

• Must continue the work in the area of extraordinaryability in the U.S.


O-1 CRITERIA • Receipt of major, internationally recognized

award

• Example: Nobel Prize

One-Time Achievement OR

• Must meet at least 3 criteria

• Evidence: expert letters and supporting documentation OR comparable evidence

3 out of 8 Criteria

• Consultation from US association or labor org

• Written advisory opinion from peer group

Consultation Requirement


O-1 CRITERIA • Receipt of nationally or internationally recognized prizes

or awards

• Membership in associations in the field

• Published material about the beneficiary

• Original contribution of major significance

• Authorship of scholarly articles

• High salary

• Judging work of others

• Employment in critical or essential capacity


Visa v. Status

• “Ticket” to enter the U.S.

• Granted only at U.S. consulate abroad

Visa

• Controls stay duration and activities in while here

• I-94 is controlling documentStatus


International Travel

During H-1B application

Not recommended

Not possible to re-enter in F-1 during

cap gap and resume employment

After H-1B granted

New visa is needed

Exception for entry after <30 days in

Canada or Mexico

Other considerations

Administrative processing

Dual intent


The “Green Card” Process

“PERM” or labor certification (DOL)

I-140 (USCIS)

I-485 or “adjustment of status” (USCIS) OR consular processing (DOS)


PERM

Determine job requirements

& wages

Advertise and post internal

notices

Interview applicants


PERM cont’d

If no qualified applicants, file electronically

WAIT

Respond to audit if

received (WAIT more)


I-140

Employer

• Offering the job certified in the PERM

• Has the ability to pay the wage offered

Beneficiary

• Is qualified for the position certified on the date PERM was filed

• Lists spouse and children on form

Category

• Depends on requirements listed in the PERM

• EB2 = Master’s or bachelor’s + 5 years experience


Waiting Line - November 2015Application Final Action Dates

Employment-Based

All Chargeability Areas Except Those Listed

CHINA -mainland

bornINDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01FEB12 01AUG06 C C

3rd 15AUG15 01JAN12 01APR04 15AUG15 15JUN07


Waiting Line – November 2015 Dates For Filing

Employment-Based


CHINA -mainland


1st C C C C C

2nd C 01JAN13 01JUL09 C C

3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN10


Keeping H-1B status during the waiting line

• One year extensions (unless PERM denied)

File PERM of non-PERM I-140 365

days in advance of H-1B end date

• Three year extensions until place in the waiting line is reached.

I-140 approved and waiting line applies


Alternatives to PERM

EB1

Extraordinary Ability

Outstanding Professor or Researcher

EB2

National Interest Waiver

Exceptional Ability

Exception –

Schedule A

Family-based/other

Marriage to a US Citizen/Sponsorship

by other family member or VAWA

Asylum application, TPS or other relief

for special situations


EB-1 EXTRAORDINARY ABILITYNo offer of employment required

May Self-Petition

Must meet 3 out 10 criteria

Criteria similar to O-1 but higher standard

More extensive documentation required

No O-1 Consultation requirement

Premium Processing available


EB-1 OUTSTANDING RESEARCHER/PROFESSOR

Must meet 2 out of 6 criteria

Must demonstrate international recognition for outstanding achievements in academic field

Must have at least 3 years of experience in teaching or research in the field

Academic Sector: permanent research or tenure or tenure track teaching position

Private Sector: 3 full-time researchers and achieved documented accomplishments in the field


EB-1 OUTSTANDING RESEARCHER/PROFESSOR CRITERIA• Receipt of major prizes or awards

• Membership in associations requiring outstanding achievement

• Published material by others about your work

• Judge of the work of others in the field

• Original research contributions

• Authorship of scholarly articles in the field


EB-2 NATIONAL INTEREST WAIVER May Self-Petition, No Job Offer or Employer Required

Request that Labor Certification be waived because it is inthe interest of the U.S.

Jobs that qualify for a national interest waiver are notstatutorily defined but must demonstrate concrete activity.

Usually granted to those who have exceptional ability andwhose employment in the U.S. would greatly benefit thenational interest of the entire country.

Exceptional ability in sciences, arts, or business – a degree of expertise significantly above that ordinarily encountered.


EB-2 EXCEPTIONAL ABILITY EXCEPTION – Schedule A

Pre-Certification under Schedule A Group II

Exceptional ability in sciences or arts (No Business)

Must meet 2 out of 7 criteria

Widespread acclaim and international recognition accorded by recognized experts in the field.

Show work in the field during past year and that intended work requires exceptional ability.


Family-Based Waiting Lines – November 2015 - Application Final Action Dates

Family-Sponsored


CHINA-mainland


F1 22FEB08 22FEB08 22FEB08 01DEC94 01JUN02

F2A 15MAY14 15MAY14 15MAY14 01APR14 15MAY14

F2B 08FEB09 08FEB09 08FEB09 22AUG95 01NOV04

F3 15JUN04 15JUN04 15JUN04 15JUN94 08OCT93

F4 01MAR03 01MAR03 01MAR03 01APR97 15JUN92


Family-Based Waiting LinesNovember 2015 – Dates For Filing

Family-Sponsored


CHINA-mainland


F1 01MAY09 01MAY09 01MAY09 01APR95 01SEP05

F2A 01MAR15 01MAR15 01MAR15 01MAR15 01MAR15

F2B 01JUL10 01JUL10 01JUL10 01APR96 01MAY05

F3 01APR05 01APR05 01APR05 01MAY95 01AUG95

F4 01FEB04 01FEB04 01FEB04 01JUN98 01JAN93


Executive Action (not yet in effect except DACA I)

DACA

Entered before age 16

Here since 1/1/2010 & not in status

DAPA

Here since 1/1/2010 & not in status

Had on 11/20/2014 a USC or LPR child

OtherOptions for

entrepreneurs, researchers &

founders

IN EFFECT - H-4 work authorization for

those in the waiting line (Approved I-140)


Criminal Convictions

• If you are arrested it is critical that you or yourcriminal lawyer (or whoever is helping you)consult with immigration counsel.

• Certain criminal convictions can prevent yourimmigration or result in your deportation.

• Drug crimes are particularly serious.


Tips for International Students

Applications

•Do not waste your time applying for jobs that state “no H-1B sponsorship is available.”

•Employers cannot ask about how long you will be able to work when interviewing you.

Attorneys

• Involve an immigration attorney early in the process.

•Do not agree to an employer filing a petition on their own without an attorney. Theemployer must pay certain legal and filing fees according to regulations.

Deadlines

•Track your own deadlines and make sure that you are taking action so that no deadline ismissed. Attorneys and employers try to keep track also, but it is your immigration status!


Questions?

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http://www.google.com/imgres?imgurl=http://www.clipartillustration.com/wp-content/uploads/symbiostock_rf_content/63066-orange-man-question-mark-thinking.jpg&imgrefurl=http://www.clipartillustration.com/image/clipart-illustration-of-orange-man-with-question-mark-in-wonder-and-inquiry/&h=406&w=590&tbnid=pHXBv5mQMCzNdM:&zoom=1&docid=JJh0LiD4HudvqM&hl=en&ei=sUrhVOOsIo-INozHgrgN&tbm=isch&ved=0CBcQMygPMA84ZA


Thank you!

Lori Chesser

Marina Grabchuk

Davis Brown Law Firm

h-1b and u.s. permanent resident petitions: what you need ... · •nonimmigrant “dual intent”...

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