Life After F and J Visas May 6, 2014 David J. Wilks Harter Secrest & Emery LLP Rochester NY 585-231-1348.

Life After F and J VisasMay 6, 2014

David J. Wilks

Harter Secrest & Emery LLP

Rochester NY

585-231-1348

Who goes there? The Four-Walled Room

U.S. citizens Permanent residents Nonimmigrants (temporary status) Unauthorized aliens

Being sponsored underTemporary Visas

Specific time limitations Specific authorized activities Options depend upon nationality/activity/availability of visas Weeks or months to secure 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 One year period Available at times during the academic program

– Curricular Practical Training

– Optional Practical Training

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

H-1B Visas

Specialty Occupations – Professionals Bachelor’s degree minimum Right type of degree Prevailing Wage*** 6 year limit, but possible to extend beyond if permanent

residence process pending

H-1B numbers

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

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

What happened in April 2014

Cases filed between April 1 – April 7, 2014 exceeded 172,000 In 2013 there were 124,000 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, 2014

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

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

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-3

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

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

Awareness of the J-1 Trap -The Two Year Residence Requirement

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

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

TN Status

NAFTA Canadian/Mexican citizens only Limited numbers of occupations

– 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 Detriment – Temporary Intent

O-1 (Extraordinary Ability)

Demonstrated Extraordinary Ability 3 years, then annual extensions 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

Transition to Permanence

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

– Lack of stability

– Spousal/children work authorization

– 21 and out for children

Paths to Permanent Residence

Refugee/Asylum Diversity Lottery Family based immigration Employment based immigration

Refugees/Asylum

Well founded fear of persecution Political overtones Strict timelines for filing

Diversity Lottery Program

55,000 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

P.R. through Labor Certification

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

May 2014 visa bulletin:

http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-may-2014.html

May 2013 Visa Bulletin – Employment Chart

           Employment- Based

All Chargeability Areas Except Those Listed

China - mainland born INDIA MEXICO PHILIPPINES

1st C C C C C2nd C 15APR09 15NOV04 C C3rd 01OCT12 01OCT12 01OCT03 01OCT12 01NOV07

Other Workers 01OCT12 01OCT12 01OCT03 01OCT12 01NOV07

4th C C C C C

Certain Religious Workers C C C C C

5thTargetedEmployment Areas/Regional Centersand Pilot Programs

C C C C C

Employment Based Immigration

Possible Exemptions from Labor Certification process:– Outstanding researcher/professor (EB-1)

– Intracompany Managers (EB-1) (not relevant for all employers)

– Extraordinary Ability (EB-1)

– National interest Waiver (EB-2)

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 Reviewing individual options Deciding what is driving the train

– Immigration?

– Professional development?

Comprehensive Immigration Reform

Watch this space!

THANK YOU