may 22, 2012 shulman, rogers, gandal, pordy & ecker, p.a. 1 navigating the immigration maze...

May 22, 2012Shulman, Rogers, Gandal,

Pordy & Ecker, P.A. 1

Navigating the Immigration Maze

Strategies and Solutions from Work Visas

through GreencardsMichael L. Kabik, Esq. © 2012

Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

12505 Park Potomac Avenue, 6th Floor, Potomac, MD 20854

T: (301) 231-0937 F: (301) 230-2891

[email protected] ShulmanRogers.com



Work Visas and Permanent Residence

H-1B “Specialty Occupation”F-1 Optional Practical Training (“OPT”)Visa Alternatives to H-1B & OPT



Work Visas and Permanent Residence

New Work Visa Export Control Certifications for “Release of Controlled Technology or Technical Data”New “VIBE” ProgramPERM Greencard Sponsorship



H-1B “Specialty Occupation”

H-1B – “Specialty Occupation”Employer-SpecificProfessional

• Requires Bachelor’s degree or equivalent– CIS work experience 3:1 rule

3 Year validity period• 6 year maximum• Extensions beyond 6 year maximum in limited

circumstances




H-1B – “Specialty Occupation”H-1B status limited by annual quota (“cap”)

• Maximum number each Fiscal Year (“FY”)– Unless EXEMPT

• Federal government FY– Starts October 1st

– Ends September 30th

– FY-2012 started 10/1/11 and will end 9/30/12

H-1B Cap = 195,000 in FY-2003H-1B Cap = 65,000 in FY-2004 and later




H-1B “Portability”Greatly simplifies mobility among employers

H-1B workers can start new employment• Upon filing of new “non-frivolous” H-1B Petition

– Subject to final approval of new H-1B Petition

• Need not wait for approval of H-1B Petition to begin work




H-1B “Portability”Requirements

• Lawfully admitted to U.S.• New petition filed prior to expiration of

authorized stay– CIS has discretion to forgive “lapse in

status”• No prior employment w/o authorization




H-1B CapEmployers can file H-1B petitions up to 6 months before start date

• FY-2013 starts 10/1/12




H-1B CapIf H-1B cap is exhausted for current FY

• Must wait until 6 months before next FY to file– Unless EXEMPT from H-1B cap

• “H-1B Cap Season” begins on April 1st

– 6 months before start of next FY and new H-1B cap




H-1B CapH-1B Lottery

• If maximum number reached in initial filing window• Computer-generated random selection of H-1B petitions

Wait list selection also by lottery• To replace selected H-1B petitions later denied,

withdrawn, or found ineligible

Non-selected or wait listed H-1B petitions• Returned to sponsoring employers• With filing fees




H-1B CapH-1B Lottery – Advanced Registration

New CIS Proposed Rule• Only employers selected in advance will be able to file

H-1B petitions in lottery period• Eliminates large CIS intake of H-1B petitions during initial

filing window and return of non-selected H-1B petitions• Saves employers time and expense of filing H-1B

petitions that are not selected in lottery




H-1B Cap – Next FY-2013Earliest filing date for FY-2013 start date of 10/1/12 was 4/2/12

Initial filing window 1st 5 business days• Monday 4/2/12 to Friday 4/6/12




H-1B Cap – Next FY-2013As of 5/11/12: 36,700 out of 65,000 cap

Once FY-2013 H-1B cap of 65,000 is reached, only non-cap H-1B’s approvable until FY-2014 (start dates beginning 10/1/13)

• Unless EXEMPT from H-1B cap– H-1B workers previously counted in cap– Other exempt H-1B workers




H-1B Cap – Current FY-2012FY-2012 H-1B cap not reached during initial filing window 4/1/11 to 4/7/11

• No H-1B lottery for FY-2012• All H-1B petitions filed during initial filing

window assigned an H-1B cap number (subject to approval)




Snapshot of Prior Year H-1B Cap (FY-2011)

FY-2011 H-1B cap not reached during initial filing window 4/1/10 to 4/7/10







FY-2010 H-1B cap not reached during initial filing window 4/1/09 to 4/7/09







FY-2009 H-1B cap reached 4/7/08• 5th day of H-1B filing window for FY-2009

10/1/08 start dates

Approx. 163,000 H-1B petitions filed subject to FY-2009 cap

• During initial lottery period • Between 4/1/08 to 4/7/08




H-1B Cap – Current/Prior YearsImpact of the Recession

• Current FY-2012 H-1B Cap reached 11/22/12• Prior FY-2011 H-1B Cap reached 1/26/11• Prior FY-2010 H-1B cap reached 12/21/09




H-1B Cap – Current/Prior YearsBooming economy prior FY-2009 and FY-2008

• H-1Bs exhausted during initial filing window– 1st 5 business days of April– 6 months ahead of October 1st start date




H-1B Cap – Current FY-2012Only non-cap H-1B’s approvable until FY-2013 (start dates beginning 10/1/12)

• Unless EXEMPT from H-1B cap– H-1B workers previously counted in cap– Other exempt H-1B workers




H-1B Cap ExemptionsInstitutions of higher education

Nonprofit entities related to or affiliated with institutions of higher education

Nonprofit research organizations

Governmental research organizations




H-1B Cap ExemptionsHolders of U.S. Masters or higher degrees

• 20,000 H-1B cap exemptions each fiscal year• Random selection lottery, if necessary

– Preceding the general 65,000 cap lottery– Advanced degree holders not selected for one of

20,000 exemptions also included in 65,000 cap lottery





• Next FY-2013• As of 5/11/12: 14,800 out of 20,000 advanced

degree H-1B cap exemptions





• Current FY-2012• Advanced degree H-1B cap exemptions

exhausted 10/19/2011





• Snapshot of prior FY-2011• Advanced degree H-1B cap exemptions

exhausted 12/22/10






exhausted 10/25/09






exhausted 4/7/08




H-1B Cap ExemptionsProspective H-1B employees previously granted H-1B status

• In the past 6 years• Not left U.S. for >1 year after attaining H-1B

status• Not previously worked for a cap-exempt

organization/not counted against the H-1B cap in past 6 years



F-1 OPT

F-1 – Optional Practical TrainingUniversity students

12 months cumulative validity period (per degree) includes

• Pre-completion OPT• Post-completion OPT

Additional 17 months post-completion OPT• STEM degree holders



F-1 OPT

F-1 – Optional Practical TrainingPre-completion OPT

• After enrolled 1 full academic year• Must be directly related to major area of study• Part time during school• Full time during breaks

Post-completion OPT• Must be directly related to major area of study



F-1 OPT

F-1 – Optional Practical TrainingF-1 students 60-day departure period• Following graduation

F-1 students with post-completion OPT also receive 60-day departure period• Following end of OPT• Without employment authorization



F-1 OPT

F-1 – Optional Practical TrainingEmployer not required to file visa petition to sponsor studentStudent files Application for Employment Authorization and required documentation directly with CIS



F-1 OPT – STEM Degree Extension

OPT EAD extensions for qualified F-1 students

12 (original) + 17 (ext.) =29 months totalSTEM degrees (Science, Technology, Engineering, and Mathematics)Employed by business enrolled in CIS E-Verify program



F-1 OPT - STEM Degree Extension


Once enrolled in E-Verify• Employers must use E-Verify to verify

employment eligibility for all new hires within 3 days of hire

• Is STEM OPT EAD extension worth subjecting all future workforce new hires to the scrutiny of E-Verify?





E-Verify mandatory as of 9/8/09• Government contractors

– Contracts with value of $100,000+

• Subcontractors– Contracts with value of $3,000+

Federal Court challenges to E-Verify denied





17 month STEM OPT extension (29 months total) gives employers opportunity to sponsor for H-1B status in 2 successive fiscal years




Eligibility for 17 month OPT extension

F-1 studentCompleted STEM degreeCurrently participating in 12 month post-completion OPT• Based on STEM degree

Employed by U.S. employer in job directly related to degree





Employed by or accepted offer of employment with employer enrolled in CIS E-Verify programProperly maintain F-1 status





Where post-completion OPT expires while 17-month extension application is pending, if timely filed • Employment authorization extended after

current EAD expires• Up to 180 days



F-1 OPT- Cap Gap

“Cap-Gap”Gap in status between• Student’s F-1 status and OPT

employment authorization expiration– In current fiscal year

• Start of H-1B status– In next fiscal year



F-1 OPT- Cap Gap

Cap-Gap relief for F-1 StudentsWhere pending or approved H-1B petition• For following fiscal year (with 10/1 start date)

Automatically extends period of F-1 status and employment authorization• Covers period between end of OPT/60-day

departure period to start of following fiscal year H-1B petition approval start date



F-1 OPT- Cap Gap

Cap-Gap relief for F-1 StudentsAutomatic extension terminates if CIS rejects, denies, or revokes H-1B petitionCap-Gap benefits only if no violation of status



H-1B and F-1 OPT

H-1B cap issues for F-1 OPTRecruitment

Impact of future OPT expirationsStrategic planning to avoid• Delayed start new H-1B employees• Interruptions to existing employees

changing to H-1B status



H-1B and F-1 OPT

Strategic PlanningFY-2012 H-1B cap not exhausted during initial 5-day lottery window on 4/7/11• H-1B cap exhausted on 11/22/11

FY-2013 H-1B cap not exhausted during initial 5-day lottery window on 4/6/12• H-1B cap still open . . . . (until ?)



H-1B and F-1 OPT

Strategic PlanningWhen will the FY-2013 H-1B cap hit?Accelerate future H-1B Filings for F-1 OPT’sIdentify potential employees not subject to H-1B cap



Visa Alternatives to H-1B & OPT

TN – NAFTA ProfessionalCanadaMexico

H-1B1 – FTA ProfessionalChileSingapore




E-1 – Treaty TraderE-2 – Treaty InvestorE-3 – Professional

Australia




L-1 – Intracompany TransfereeO-1 – Extraordinary AbilityJ-1 – Exchange Visitor



TN NAFTA Professional

TN – NAFTA ProfessionalEmployer specific

• U.S. Employers• Canadian or Mexican Employers

Limited to Canadians and Mexicans• 67 specified professions




TN – NAFTA Professional3 Year maximum admission

• New regulation effective 10/16/08• Increased admission/extension period

from 1 to 3 years

Indefinite extensions




TN – NAFTA ProfessionalCanadians visa exempt

• Apply directly at Border or POE

Mexicans require TN Visa• Apply directly at U.S. Consular Post• Changes as of January 2004

– 5,500 FY Cap eliminated– LCA approval requirement eliminated– I-129 Petition approval requirement eliminated



H-1B1 FTA Professional

H-1B1 – FTA ProfessionalU.S.-Chile Free Trade Agreement• Limit = 1,400 per FY

U.S.-Singapore Free Trade Agreement• Limit = 5,400 per FY

“Specialty Occupation” requirement




H-1B1 – FTA ProfessionalLCA requirementLimited to 18 monthsNo “Dual Intent” as with regular H-1B’s• Required to overcome presumption of

“Immigrant Intent”

After 5 renewals, counts against regular H-1B cap




H-1B1 – FTA ProfessionalApplication Options

• Primary jurisdiction @ U.S. embassies and consulates abroad

– No CIS approval required

• Alternative application to CIS if in U.S.– If depart U.S., must apply for visa @ U.S. embassy

or consulate abroad

• Change/Extension of status with CIS in U.S.



E-1 Treaty Trader

E-1 – Treaty TraderEmployer-Specific

No prior employment abroad req’d (unlike L-1)

Treaty must exist - U.S. & other country

Majority ownership/control of U.S. entity• At least 50% by treaty country nationals• Excluding U.S. Citizens or Permanent Residents• Direct and/or Indirect ownership• 50/50 Split- Negative Control



E-1 Treaty Trader

E-1 – Treaty TraderSponsored employee must be citizen of treaty country

With 50/50 ownership split• U.S. entity can qualify for 2 different treaty countries

2 Year maximum visa validity period• Indefinite extensions



E-1 Treaty Trader

E-1 Treaty TraderApplication Options




or consulate abroad




E-1 Treaty Trader

E-1 Special RequirementsTrade

• Exchange, purchase, or sale of goods, services or technology

Substantial• No minimum dollar threshold• Volume of trade• Number of transactions• Includes binding contracts• Continued course of trade



E-1 Treaty TraderE-1 Special Requirements

Principally with U.S.• 50%+ of total volume of international trade of

the U.S. entity must consist of trade between U.S. and treaty country

Duties• Executive, Supervisory• Highly Specialized Essential Skills• Not including “ordinarily skilled” workers



E-1 Treaty TraderE-1 Treaty Trader

EB-1 Multinational Executive/Manager Greencard Benefit

• Skip PERM/Labor Certification



E-2 Treaty Investor

E-2 – Treaty InvestorEmployer-Specific

No prior employment abroad req’d (unlike L-1)

Treaty must exist - U.S. & other country

Majority ownership/control of U.S. entity• At least 50% by treaty country nationals• Excluding U.S. Citizens or Permanent Residents• Direct and/or Indirect ownership• 50/50 Split- Negative Control



E-2 Treaty Investor

E-2 – Treaty InvestorSponsored employee must be citizen of treaty country

With 50/50 ownership split• U.S. entity can qualify for 2 different treaty countries

2 Year maximum visa validity period• Indefinite extensions



E-2 Treaty Investor

E-2 Treaty InvestorApplication Options




or consulate abroad




E-2 Treaty Investor

E-2 Special RequirementsActive investment

• Irrevocable commitment of funds• Actual active investment• Not passive investment

– Uncommitted funds in bank account– Stocks– Undeveloped land

• Land development vs. land investment



E-2 Treaty Investor

E-2 Special Requirements“Substantial” investment

• No minimum dollar amount– Standards for new or existing business

• Proportionality Test– Measured against the type of business– Small and medium businesses– The lower the cost of the enterprise, the higher

proportionally the investment must be to be considered “substantial”



E-2 Treaty Investor

E-2 Special Requirements“Substantial” investment

• Investment in process – Start-up company

• Investor’s own resources• “At risk” in the commercial sense



E-2 Treaty Investor

E-2 Special RequirementsCannot be “marginal”

• To only support the investor & his family• Create job opportunities for U.S. workers

– Employees– Outside contractors

• Significant impact upon U.S.



E-2 Treaty Investor

E-2 Special RequirementsEssential role in enterprise

• Investor to develop and direct investment• Executives, Supervisors, Specially Qualified

Essential employee• Not including “ordinarily skilled” workers



E-2 Treaty Investor

E-2 Treaty InvestorEB-1 Multinational Executive/Manager Greencard Benefit




E-3 Australian Specialty Occupation


Australian nationals

Limit = 10,500 per FY




E-3 – Australian Specialty Occupation

Application Options• Primary jurisdiction @ U.S. embassies and

consulates abroad– No CIS approval required

• Alternative application to CIS if in U.S.– If depart U.S., must apply for visa @ U.S. embassy or

consulate abroad





E-3 Special RequirementsEmployer-Specific

Labor Condition Application required• Same as H-1B

Must meet “specialty occupation” definition• Same as H-1B• Requires bachelors degree or equivalent




E-3 Special RequirementsLimited to 2 years• Unlimited extensions

Intent to depart U.S. upon termination of E-3 status



L-1 Intracompany Transferee

L-1 – Intracompany TransfereeEmployer specificSponsored employee must be employed abroad by foreign entity

• 1 continuous year out of prior 3 years• In “Executive,” “Managerial,” or “Specialized

Knowledge” position• Transfer to U.S. to fill “Executive, ”

“Managerial,” or “Specialized Knowledge” position




L-1 – Intracompany TransfereeForeign entity must be related to U.S. company

• Same company• Subsidiary• Affiliate




L-1 – Intracompany TransfereeOwnership/Control

• 50%+ ownership• Effective control

– With <50% ownership




L-1 – Intracompany TransfereeQualifying Organization

• Doing business in U.S. and other country• During whole period of transfer




L-1 – Intracompany TransfereeL-1A -- Executives & Managers

L-1B -- Specialized Knowledge Personnel

Visa Validity Terms• 5-7 Year Maximum (3 years initially)• Start-ups (1 year initially)




L-1 – Intracompany TransfereeEB-1 Multinational Executive/Manager Greencard Benefit




O-1 Extraordinary Ability

O-1 – Extraordinary AbilityEmployer-Specific

Persons of “Extraordinary Ability”• Sciences, Arts, Education, Business & Athletics

3 Year maximum visa validity period• Unlimited extensions




O-1 CriteriaReceipt of a major internationally recognized award

• e.g., the Nobel Prize

Receipt of 3/10 of other forms documentation




O-1 – 3/10 CriteriaNationally/Intl’ly recognized prizes/awards

• for excellence in the field of endeavor

Membership in associations in the field• which require outstanding achievements• as judged by recognized nat’l or int’l experts

Published material about the person• in professional or major trade publications or

other major media




O-1 – 3/10 CriteriaParticipation (on a panel or individually) as a judge of the work of others in the field

Original scientific, scholastic, artistic, athletic or business-related contributions

• of major significance in the field

Authorship of scholarly articles in the field• in professional journals or major media




O-1 – 3/10 CriteriaEmployment in a critical or essential capacity

• for organizations or establishments that have distinguished reputations

High salary or other high remuneration• in relation to others in the field

Other comparable evidence




O-1 – Extraordinary AbilityEB-1 Extraordinary Ability Greencard Benefit




J-1 Exchange Visitor

J-1 – Exchange VisitorMultiple Designations including

• Trainee• Intern

Dept. of State jurisdiction

Apply via DOS approved Program Sponsors




J-1 – TraineeTraining not available in home country

18 Month maximum




J-1 – Trainee RequirementsDegree or professional certificate from foreign post-secondary academic institution and at least 1 year of prior related work experience in the occupational field outside the U.S.; OR5 years of work experience outside the U.S. in the occupational field in which training is sought




J-1 – Intern12 Month maximum




J-1 – Intern RequirementsCurrently enrolled in and pursuing studies at a foreign degree- or certificate-granting post-secondary academic institution; ORGraduated from such an institution no more than 12 months prior to the exchange visitor program start date



NIV Dependents

Dependent Work AuthorizationSpouse Work Permits

• E-1 Treaty Trader• E-2 Treaty Investor• E-3 Australian Specialty Occupation• L-1 Intracompany Transferee



NIV Dependents

Dependent Work AuthorizationSpouse/Minor Child Work Permits

• J-1 Exchange Visitor– J-2 dependent’s employment must be for other

purposes than to support principal J-1– Employment will not be authorized if income is

needed to support the principal J-1



Export Control Certifications

New Work Visa Export Control Certifications for “Release of Controlled Technology or Technical Data”

“To Foreign Persons in the United States”Effective 2/20/11 for CIS I-129Applicable H-1B, H-1B1, L-1, or O-1 NIV classifications




Federal law prohibits “export” of controlled technology and technical data to certain foreign persons in the U.S. without a license




“Technology”Information for the development, production, or use of “dual-use” products or softwareTechnology or source code is considered “released” for export• When made available to foreign persons




“Export” includes:Disclosure or transfer to foreign persons physically present in the U.S.• Including oral or visual disclosure (i.e.,

technical specifications, plans, blueprints, etc.)

• “Deemed exports” to a foreign person’s country

Even if the company does not engage in any other exporting




With respect to technology or technical data an Employer “will release or otherwise provide access to” the Employee, the Employer must certify that it has reviewed both the:

Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”)




Employer must certify that it has determined that either:

A license is not required to release the technology or technical data to the Employee, orA license is required and the Employer will prevent the Employee’s access to the controlled technology or technical data until and unless the Employer has received the required license or other authorization to release it to the Employee



“VIBE” Program

New Validation Instrument for Business Enterprise (“VIBE”) Program

Tool designed to enhance CIS’ review of employment-based NIV and IV petitions

Uses commercially available data to validate information about petitioning employers



“VIBE” Program

CIS contract with Dun & Bradstreet Provide independent verification of employers’ information

Match employer-submitted data and evidence with D&B data

Contents of D&B database very important

• Especially for small companies and newly established companies



“VIBE” Program

Verification of Employers’ Information

Business activities• Type of business (NAICS code), trade payment

information and status (active or inactive)

Financial standing• Including sales volume and credit standing

Number of employees• Onsite and globally



“VIBE” Program


Relationships with other entities• Including foreign affiliates

Status• Single entity, branch, subsidiary, or HQ

Ownership and legal status• LLC, partnership, corporation



“VIBE” Program


Company executives

Date of establishment as business entity

Current physical address



PERM Greencard Sponsorship

Permanent Residence SponsorshipBased upon shortage of qualified U.S. workers

• In metropolitan area of job location• Willing to work for the “prevailing wage”

Requires attempted job recruitmentEmployer must offer prevailing wage




PERM Prevailing WageEach job classification4 levels• Specific DOL criteria impact wage level




New PERM Prevailing Wage Process

Effective 1/1/10Prevailing Wage Request E-filed with DOLState Workforce Agency no longer responsible for Prevailing Wage Determinations




PERM ProcessPre-filing recruitment and compliance• 90-120 days average

Electronic Filing with DOL• Decisions expected within approx. 3

months (if no DOL Audit)

DOL Audit• Decisions expected within approx. 7

months




PERM RequirementsPrior employer recruitmentAttestations• Compliance• Non-discrimination

Strict recruitment requirements




PERM RequirementsDOL audits• Average 40% audit rate• While PERM Application pending• Up to 5 years after PERM Application

filing




Employer RecruitmentRecruitment Window• 180 days to 30 days before filing

Professional positions• 2 Sunday ads in general circulation

newspaper• Or 1 Sunday ad in newspaper and 1 ad in

professional journal




Employer Recruitment3 out of 10 alternate forms of recruitment• 1. Job Fair• 2. On-Campus Recruiting• 3. Employer Website• 4. Trade or Professional Organization• 5. Job Search Website




Employer Recruitment3 out of 10 alternate forms of recruitment• 6. Private Employment Firm• 7. Employee Referral Program• 8. Campus Placement Office• 9. Local or Ethnic Newspaper• 10. Radio or TV ads

1 of above can be within 30 days of filing




Other RequirementsJob Order with State Workforce AgencyInternal Posting at Employer SiteIn House Media Posting




Other RequirementsMust interview qualified applicantsCan only reject for lawful, job-related reasonsPrepare and retain recruitment reportNo restrictive requirements unless justified by business necessity




DOL AuditMust maintain audit file for 5 years, including:• Recruitment report justifying those

disqualified• Proof of business necessity• Proof of advertising and alternate forms of

recruitment• Prevailing Wage Determination• Posting Notice



Legal DisclaimerFacts of individual cases differThe information provided herein is general in nature and should not be relied uponConsult with an experienced immigration attorney with regard to specific cases

may 22, 2012 shulman, rogers, gandal, pordy & ecker, p.a. 1 navigating the immigration maze...

Documents

b cap h

b specialty occupation

b petitions

employers h

b cap slide

approval of h

b status

selected h