november 6, 2012 shulman, rogers, gandal, pordy & ecker, p.a. 1 navigating the immigration maze...

November 6, 2012Shulman, Rogers, Gandal,

Pordy & Ecker, P.A. 1

Navigating the Immigration Maze

Strategies and Solutions from Student to Work Visa

Michael L. Kabik, Esq. © 2012Shulman, 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”)

“Cap Gap”

Visa Alternatives to H-1B & OPT



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-2013 started 10/1/12 and will end 9/30/13

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 started 10/1/12• FY-2014 starts 10/1/13




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withdrawn, or found ineligible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-2014Earliest filing date for FY-2014 start date of 10/1/13 is 4/1/13

Initial filing window 1st 5 business days• Monday 4/1/13 to Friday 4/5/13




H-1B Cap – Current FY-2013FY-2013 H-1B cap not reached during initial filing window 4/2/12 to 4/6/12

• No H-1B lottery for FY-2013• All H-1B petitions filed during initial filing

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




H-1B Cap – FY-2013As of 6/11/12: 65,000 H-1B cap 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




Snapshot of Prior Year H-1B Cap (FY-2012)

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







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-2013 H-1B Cap reached 6/11/12• Prior 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-2013Only 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 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





• Current year FY-2013• Advanced degree H-1B cap exemptions

exhausted 6/7/12





• Snapshot of prior year FY-2012• Advanced degree H-1B cap exemptions

exhausted 10/19/11






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

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




TN – NAFTA ProfessionalCanadaMexico

H-1B1 – FTA ProfessionalChileSingapore




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

Australia

L-1 – Intracompany TransfereeO-1 – Extraordinary Ability



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

• 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 specificAlien 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

Aliens 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




NIV Dependents

Dependent Work AuthorizationSpouse Work Permits

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



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

november 6, 2012 shulman, rogers, gandal, pordy & ecker, p.a. 1 navigating the immigration maze...

Documents

pordy ecker

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b capif h

b specialty occupationh

b petitionsubject

b status

b portabilitygreatly

b optshulman