Cleveland SHRM

Immigration Basics: What Strategic HR Professionals Should Know

Optional Practical Training

What is OPT? 12 months post graduation; no H1B required

Post Completion of University DSO endorses I-20 Student files I-765 Student works after approval of I-765

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Optional Practical Training

Certain students can receive 17 month extension beyond their 12 month OPT = 29 months

F-1 Students who Receive STEM degrees included on STEM

designated Degree Program List Employed by E-verify enrolled users

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H-1B

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H-1 B

Option for filing:

Legal expertise is required?

Contact an immigration attorney

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H-1B

Specialty Occupation Theoretical and practical application of body of

highly specialized knowledge MBA, Engineers, Researchers, Accountants,

Computer Techs, other professional positions 3 year periods of stay 6 year maximum

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Legal Requirements: What do Employers need to do?

Preparing the petition Job description Resume and degrees Labor Condition Application Prevailing/actual wage Public file

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LCA Requirement Employer attests to four (4) Labor Condition Statements:

Wages higher of the actual wage or the prevailing wage pay the fee the required wage for time in nonproductive status Ee offered benefits and eligibility for benefits on the same basis as

U.S. workers Working Conditions

No adverse effect EE afforded working conditions on the same basis as similarly

employed U.S. workers Strike, Lockout, or Work Stoppage

No strike, lockout, or work stoppage in the course of a labor dispute on the day the LCA is signed and submitted

If strike, lockout, or work stoppage occurs after the application is submitted, employer will notify the DOL within three (3) days and LCA will not be used in support of H-1B until DOL determines that the strike, lockout or work stoppage has ceased.

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LCA Requirement

Notice Notice of LCA has been provided to workers

employed in the named occupation. Notice provided either through

physical posting for 10 consecutive business days in a least two (2) locations where H-1B ee will work or

electronic notification notice must commence prior to filing the LCA with the

DOL

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Public File

Certified LCA and Cover Pages

Wage Rate Statement

Actual Wage payroll records need not be maintained in the

public file, but must be retained and made available to the DOL upon request

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Public File

Prevailing Wage Determination Posted LCA Notices Acknowledgment of Receipt of LCA Benefits Summary

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Extension of Stay Has ee reached the maximum of 6 years

Include all period in H-1B classification, including periods before employment with new employer

Once 6 years reached, ee must spend 1 year abroad before s/he is eligible for H-1B classification, unless the company has applied for the employee’s green card

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Recapture of H-1B Time

Time spent outside the U.S. does not count toward the 6 year limit on stay

Time spent abroad may be for any purpose (i.e. personal or professional)

Time spent abroad may be “recaptured” later to extend the stay in H-1B classification.

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Extensions Beyond 6 Years

Individuals not subject to 6 year limit if:

Work in US on intermittent basis for less than 6 months per year

Commute to U.S. and work in U.S. on intermittent basis

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Extensions Beyond 6 Years—AC21 Two situations

Immigrant visa category is backlogged and Approved I-140 immigrant petition 3 year extension available More than 1 extension permitted

365 days or more have passed since the filing of a labor certification or I-140 immigrant petition 1 year extension available More than 1 extension permitted

If LC or Immigrant Petition denied or invalidated, no extension

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H-1B Portability

H-1B employee may begin employment for a new employer upon the filing of a petition

Requires: H-1B status Lawful admittance Engagement solely in authorized employment Non frivolous petition

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Green Card

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How do you know that the Green Card is authentic?

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Green Card

The Green Card Process: 3 Basic Steps

Labor Certification

I-140 Immigrant Visa Petition

I-485 Application to Adjust Status

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Labor Certification

Not sufficient US workers who are Able Willing Qualified and Available And

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Labor Certification

Employment of alien will not adversely affect the wages and working conditions of workers similarly employed

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The Labor Certification Process Application submitted to US Department of

Labor Minimum requirements listed by ee Prevailing wage

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Final Steps

I-140 Immigrant Petition

I-485 Adjustment of Status (Green Card Application)

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