David J. Wilks April 29, 2015. U.S. Citizens PermanentResidents Nonimmigrants Unauthorized.

Immigration After Graduation

David J. WilksApril 29, 2015

Who is in the U.S.?The Four-Walled Room

Peoplein theU.S.A.

U.S. CitizensPe

rman

ent

Resi

dent

s

Nonimmigrants

Unauthorized

Peoplein theU.S.A.

U.S. CitizensPe

rman

ent

Resi

dent

s

Nonimmigrants

Unauthorized

EMPLOYMENT OPTIONS MAY BE LIMITED

DURATION OF STAY IN THE U.S. IS LIMITED

CANNOT VOTE IN U.S. ELECTIONS

F-1/OPT

H-1BL-1

O-1TN

Wall 1:Nonimmigrants

F-1/OPT

H-1BL-1

O-1TN

Wall 2: Permanent Residents

EMPLOYMENT OPTIONS MAY BE LIMITED

DURATION OF STAY IN THE U.S. IS LIMITED

CANNOT VOTE IN U.S. ELECTIONS

CAN WORK IN THE U.S. FOR ANY EMPLOYER

CAN LIVE IN THE U.S. INDEFINITELY

CANNOT VOTE IN U.S. ELECTIONS

Wall 3: US Citizens

CAN WORK IN THE U.S. FOR ANY EMPLOYER

CAN LIVE IN THE U.S. INDEFINITELY

CANNOT VOTE IN U.S. ELECTIONS

ONLY GROUP IN THE U.S. WITH THE RIGHT TO VOTE

BECOME A CITIZEN THROUGH BIRTH, AS A DERIVATIVE, OR THROUGH NATURALIZATION

ONLY GROUP IN THE U.S. WITH THE RIGHT TO VOTE

BECOME A CITIZEN THROUGH BIRTH, AS A DERIVATIVE, OR THROUGH NATURALIZATION

OVERSTAYED STATUS

VIOLATED STATUS

ENTERED THE U.S. WITHOUT INSPECTION

Wall 4: Unauthorized

First Step: Nonimmigrant Status

When looking for a job in the U.S., determine which nonimmigrant classifications apply to you:

F-1/OPT

H-1BL-1

O-1TN

Nonimmigrant Menu

A Ambassador, public minister or diplomatic or consular office

B-1 Visitor for business B-2 Visitor for pleasure C Alien in transit D Crewman E-1 Treaty trader E-2 Treaty investor E-3 Specialty Occupation (Professional) -

Australia F-1 Student F-2 Spouse or child of student G Representative to international

organization H-1B Specialty Occupation (Professional) H-1B1 Specialty Occupation (Professional) –

Singapore or Chile H-2A Temporary/seasonal worker H-3 Trainee H-4 Spouse or child of H I Foreign media J-1 Exchange visitor J-2 Spouse or child of J-1 K-1 Fiancé(e) of U.S. Citizen K-2 Derivative unmarried child of K-1 K-3 Spouse of U.S. Citizen K-4 Unmarried child of K-3

L-1A Intracompany transferee – manager or executive

L-1B Intracompany transferee – specialized knowledge

L-2 Spouse or child of L-1 M Vocational or nonacademic students O-1 Aliens of extraordinary ability O-2 Aliens providing essential support to O-1

artist or athlete O-3 Spouse or child of O P-1 Athletes and entertainers P-2 Artist or entertainer, individual or part

of group P-3 Performer, teacher or coach of culturally

unique program P-4 Spouse or child of P Q International Cultural Exchange Program R Religious Workers S Critical Witness TN Treaty NAFTA U Victim of abuse who will be a witness V-1 Spouse of legal permanent resident V-2 Unmarried child of V-1 (petitioned for) V-3 Derivative unmarried child of V-1 or V-2

Being sponsored underTemporary Visas

Specific time limitations Specific authorized activities Options depend upon nationality/activity/availability of visas Weeks or months to secure

Your friends may not be

right!

Lesson: Plan ahead

F-1 Students and OPT

OPT - Optional Practical Training Generally available to those who have completed a U.S. degree Available for those in graduate programs who have completed

coursework Generally, only for a one year period Available at times during the academic program

Curricular Practical Training Optional Practical Training

Can be extended once for STEM, if employer registered for E-Verify

F-1/OPT

OPT Extension for STEM

OPT may be extended for up to 17 mos. for students not awaiting H-1B

Requires I-765/EAD Employer must be E-Verify registrant Available for those in STEM fields Classification of Instructional Programs codes published by

the National Center for Education Statistics (NCES CIP codes) http://www.ice.gov/sevis/stemlist.htm

F-1/OPT

H-1B status

Specialty Occupations – Professionals Bachelor’s degree minimum Right type of degree Must pay at least prevailing wage or actual wage – whichever

is higher 6 year limit, but possible to extend beyond if permanent

residence process pending Spouse generally cannot work until significant

work is completed toward permanent residence

H-1B

The Imperfect H-1B Quota System

65,000 base H-1B1 (Singapore & Chile) have a cut out of those numbers 20,000 for U.S. Masters degree or higher Many employers exempt from the numbers – including post-

secondary educational institutions and affiliates

H-1B

Lottery years – H-1B

Occurs when more petitions are filed than the available quota in the first 5 days of “open season” beginning April of each year

First step - Random lottery of 20,000 Masters cases Second step – random lottery of leftovers of above + all others

H-1B

What happened in April 2015

Cases filed between April 1 – April 7, 2015 exceeded 233,000 In 2013 there were 124,000; 2014 there were 172,000 Results are still coming in “Cap-gap” - If cases is selected, those with post-completion

OPT get an automatic extension of OPT status to bridge them until October 1, 2015

H-1B

Lottery “losers” – what options?

Review other nonimmigrant visa options If STEM discipline, F-1 OPT extension for 17 months Seek another degree and extend F-1 Review other work-authorized options Consider change to B-2 visitor to remain in the U.S. for non-

work purposes

H-1B

E-3: For Australians Only

H-1B- like option for Australians only No quota limitation

E-3

a) Treaty must exist between U.S. and Country in question (the Treaty Country).b) Majority of ownership or control of the investing or trading company must be

held by nationals of the Treaty Country.c) The employee must be a citizen of the Treaty Country.d) If E-1 status, must meet a through c above plus: trade of the company must be

“substantial”, principally between the U.S. and the Treaty Country (more than 50%), employee must be a supervisor or have essential skills.

e) For E-2 investor, must meet a through c above plus: investment must be active, substantial, create jobs and employee must be a supervisor or have essential skills filling a key role.

f) A spouse of an E-1 or E-2 is eligible to receive work authorization.

E-1/E-2Treaty Trader/Treaty Investor

E-1/E-2

J-1 Visas

Exchange Visitors – several categories Including students, research scholars, trainees, professors

FMGs who are J-1 are subject to 212(e) The two year foreign residence requirement

J-1

Beware the J-1 Trap:Two Year Foreign Residency Requirement

Home government funding U.S. government funding Skills List of Home Country Foreign Medical Graduates seeking post graduate training

J-1

L-1 Intracompany Transferees

L-1A – Managers/Executives L-1B – Specialized knowledge At least one year of work experience abroad with “affiliated”

company to U.S. petitioner L-2 spouses can obtain US work authorization 5 years maximum for L-1B; 7 years for L-1A

L-1

O-1 Extraordinary Ability

Demonstrated Extraordinary Ability 3 years, then 1 to 3 year extensions, indefinitely Evidenced by objective standards

Scholarly articles Presentations Elite memberships Judge of the work of others Original contributions to the field Articles written about the individual

O-1

TN status under NAFTA

NAFTA (North American Free Trade Agreement) Canadian/Mexican citizens only Limited numbers of occupations – see list

Including but not limited to: Computer Systems Analysts, Engineers, Graphic Designers, Mathematicians, Statisticians, Research Assistants, numerous Scientific disciplines

3 year periods Benefits – speed and expense Spouse cannot work

TN

Temporary Visas & Work Authorization

With basic documents, analyze visa options Specific time limitations Specific authorized activities Options depend upon nationality/activity/availability of visas Weeks or months to secure Plan ahead

Why Permanent Residence?

Foregoing nonimmigrant visas are “temporary” Though many are long-term, disadvantages abound:

Lack of stability Work relationship is the only tether to the U.S. Spousal/children work authorization not always available Only unmarried children under 21 can tag along

Paths to Permanent Residence

REFUGEE/

ASYLUM

DIVERSITY

LOTTERY

FAMILYBASED

EMPLOYMENT

BASED

Refugees/Asylum

Well founded fear of persecution Political overtones Strict timelines for filing

Diversity Lottery Program

50,000 annual “winners” Specific countries only Electronic submission of applications Digital photo required www.travel.state.gov

Family Based Immigration

Limited circle of family Spouses and children of USCs

Regardless of age or marital status Spouses and unmarried children of PRs Siblings of USCs Parents of USCs

Employment Based Immigration

Labor Certification Process Protecting the Labor Market Non-teaching positions (in universities or elsewhere)

Only person left standing University or college teachers

Special handling “Best qualified” standard

P.R. through Labor Certification

1. Labor Certification 2. I-140 Employment Based (EB) Petition

EB-2 – Job requires minimum of a Masters or a Bachelor’s + 5 years experience

EB-3 – Job requires less than above 3. I-485 Application for Permanent Residence This 3-step process can take years

Your friends may not be

right!

P.R. through Labor Certification

Understanding the Visa Bulletin and its impact on the wait for permanent residence

Visa Bulletin: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html

May 2015 Visa Bulletin

Employment- Based

All Chargeability Areas Except Those Listed

CHINA - mainland born

INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01JUN12 15APR08 C C

3rd 01JAN15 01MAY11 15JAN04 01JAN15 01JUL07

Other Workers 01JAN15 15NOV05 15JAN04 01JAN15 01JUL07

4th C C C C C

Certain Religious Workers

C C C C C

5thTargetedEmployment Areas/Regional Centersand Pilot Programs

C 01MAY13 C C C

Employment Based Immigration

Possible Exemptions from Labor Certification process: Outstanding researcher/professor (EB-1) Intracompany Managers (EB-1) Extraordinary Ability (EB-1) National Interest Waiver (EB-2) Investor Status (EB-5)

$500,000 to $1,000,000 investment Conditional Status granted Employ 10 FTE US workers

Exemptions from Labor Certification process 1. I-140 petition

EB-1 if Outstanding Researcher, Person of Extraordinary Ability or Intracompany Manager

EB-2 if National Interest Waiver 2. I-485 application for Permanent Residence

Plan the Work & Work the Plan

Planning is critical Understanding the time it might take – short and long term Reviewing individual options Sometimes the answer is “no” Deciding what is driving the train

Immigration? Professional development?

Comprehensive Immigration Reform

Watch this space!

Immigration After Graduation

Any Questions?