May 22, 2012 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 1 Navigating the Immigration Maze Strategies and Solutions from Work Visas through Greencards.
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• 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
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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
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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
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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
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F-1 OPT - STEM Degree Extension
OPT EAD extensions for qualified F-1 students
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?
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F-1 OPT - STEM Degree Extension
OPT EAD extensions for qualified F-1 students
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
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F-1 OPT - STEM Degree Extension
OPT EAD extensions for qualified F-1 students
17 month STEM OPT extension (29 months total) gives employers opportunity to sponsor for H-1B status in 2 successive fiscal years
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F-1 OPT - STEM Degree Extension
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
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F-1 OPT - STEM Degree Extension
Eligibility for 17 month OPT extension
Employed by or accepted offer of employment with employer enrolled in CIS E-Verify programProperly maintain F-1 status
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F-1 OPT - STEM Degree Extension
Eligibility for 17 month OPT extension
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
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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
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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
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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
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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
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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 ?)
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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
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Visa Alternatives to H-1B & OPT
TN – NAFTA ProfessionalCanadaMexico
H-1B1 – FTA ProfessionalChileSingapore
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Visa Alternatives to H-1B & OPT
E-1 – Treaty TraderE-2 – Treaty InvestorE-3 – Professional
U.S.-Singapore Free Trade Agreement• Limit = 5,400 per FY
“Specialty Occupation” requirement
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H-1B1 FTA Professional
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
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H-1B1 FTA Professional
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.
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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
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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
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E-1 Treaty Trader
E-1 Treaty TraderApplication 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.
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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
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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
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
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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
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E-2 Treaty Investor
E-2 Treaty InvestorApplication 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.
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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
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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”
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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
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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.
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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
J-1 – Exchange VisitorMultiple Designations including
• Trainee• Intern
Dept. of State jurisdiction
Apply via DOS approved Program Sponsors
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J-1 Exchange Visitor
J-1 – TraineeTraining not available in home country
18 Month maximum
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J-1 Exchange Visitor
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
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J-1 Exchange Visitor
J-1 – Intern12 Month maximum
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J-1 Exchange Visitor
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
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
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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
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Export Control Certifications
Federal law prohibits “export” of controlled technology and technical data to certain foreign persons in the U.S. without a license
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Export Control Certifications
“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
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Export Control Certifications
“Export” includes:Disclosure or transfer to foreign persons physically present in the U.S.• Including oral or visual disclosure (i.e.,
Even if the company does not engage in any other exporting
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Export Control Certifications
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”)
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Export Control Certifications
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
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“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
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“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
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“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
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“VIBE” Program
Verification of Employers’ Information
Relationships with other entities• Including foreign affiliates
Status• Single entity, branch, subsidiary, or HQ
Ownership and legal status• LLC, partnership, corporation
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“VIBE” Program
Verification of Employers’ Information
Company executives
Date of establishment as business entity
Current physical address
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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 RequirementsDOL audits• Average 40% audit rate• While PERM Application pending• Up to 5 years after PERM Application
filing
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PERM Greencard Sponsorship
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
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PERM Greencard Sponsorship
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
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PERM Greencard Sponsorship
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
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PERM Greencard Sponsorship
Other RequirementsJob Order with State Workforce AgencyInternal Posting at Employer SiteIn House Media Posting
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PERM Greencard Sponsorship
Other RequirementsMust interview qualified applicantsCan only reject for lawful, job-related reasonsPrepare and retain recruitment reportNo restrictive requirements unless justified by business necessity
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PERM Greencard Sponsorship
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
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