Fill and Sign the Form Mt 170

Immigration Update for Rice University February 22, 2011 Judy J. Lee* and Layla Panjwani 713.335-3971 office jlee@fosterquan.com www.fosterquan.com *Board Certified - Immigration and Nationality Law - Texas Board of Legal Specialization Today’s Presentation 1. Temporary Work Visas – H-1B, TN, H1B1, E-1, E-2 & E-3, L1 & O-1 2. Travel Issues 3. Permanent Residency Options 4. Question & Answer H-1B Visa • U.S. Employer must file petition with USCIS; employer specific • Specialty occupation – position requires at least a Bachelor’s degree • Labor Condition Application (LCA) – from Department of Labor (DOL); obligations for the employer • Prevailing wage or actual wage must be paid • Can be for full time or part time employment • Maximum stay of 6 years – up to 3 years at a time (can stay more than 6 years under certain circumstances) • Dual Intent – may apply for green card • H4 spouses not allowed to work H-1B Processing Times & Filing Fees Processing Times • Regular – 2 to 4 months • Premium – 15 days or less (requires $1225 filing fee) Filing Fees • $325(H1B)/$290 (H-4) filing fee • $500 Fraud Prevention and Detection fee - exception – H-1B extension for same employer • $1500 ACWIA Training and Scholarship Fee ($750 reduced ACWIA fee for 25 or less employees) Exception – H-1B exempt employers; second extension with same employer; amended petition and no extension H-1B Cap • • • • • • • 65,000 (appr.) H-1Bs available per Fiscal Year - Oct 1-Sept 30 20,000 additional for U.S. Master’s (and higher degrees) Earliest filing date each year is April 1st Earliest date to start work as H-1B is October 1st If H1B cap is reached the first day of filing, a lottery is held Past 2 years H-1Bs remained available to Dec/Jan Cap Exempt Employers - Universities; Non-profits Affiliated to a University; Non-profit Research and Government Research organizations • Currently, H1Bs are no longer available H-1B Approval Notice with I-94 F-1 Students c/s to H-1B F-1 Cap-Gap OPT automatic extension H-1B change of status petition • • • • • Timely filed while F-1 OPT EAD is valid OPT will be automatically extended until September 30th No travel abroad during cap-gap extension 90 limit on unemployment STEM OPT extension (additional 17 months) • Latest degree must be in Science, Technology, Engineering or Mathematics • Sponsored by E-verified Employer • Position directly related to degree TN Visas Canadian and Mexican citizens • For occupations listed in NAFTA treaty – most require a bachelor’s degree • Work only for U.S. sponsoring employer • Canadian citizens – can apply at border (POE) or preflight inspection (PFI) OR change status in the U.S • Mexican citizens – apply at U.S. consulate for visa (valid only 1 year) OR change status in the U.S. • Time Period in U.S. – Three years (initial admission); 3 year extensions • Nonimmigrant intent required • TD Spouses – no work permit available TN Designated Occupations Sample list of designated occupations for TN includes: • Engineer • Registered Nurse* • Scientific Technician* • Management Consultant* • Economist • Accountant • Architect • Computer System Analyst • Graphic Designer *Does not require Bachelor’s degree or Licenciatura H-1B1 for Citizens of Singapore & Chile - Must have a job offer with a US employer - Must be a degreed professional - LCA and prevailing wage required - Can apply directly at US consulate without obtaining an approved USCIS petition - Admission is for one year, renewable in 1 year increments - No dual intent - Chile has a numerical cap of 1,400 visas per year - Singapore has a numerical cap of 5,400 visas per year - Spouse cannot work E-3 Visas for Citizens of Australia - Must have job offer with US employer - Must be a degreed professional - LCA and prevailing wage required - Can apply directly at US consulate without obtaining an approved USCIS petition - no dual intent - 2 year validity with additional 2 year extensions - 10,500 visas per year - Spouse eligible to apply for employment authorization E-1 Treaty Traders & E-2 Treaty Investors • The sponsoring employer must be at least 51% foreign- owned by a company or individual with the citizenship of the treaty country • A treaty of trade or commerce between the U.S. and the foreign country of origin exists • The foreign national employee must share the same citizenship as the company • The position must be managerial in nature or one requiring “essential skills” or specialized experience • No Dual Intent • Spouse can apply for a work permit L-1 Intracompany Transferee • Must have worked abroad for parent, subsidiary, affiliate, or branch of the U.S. employer for 1 continuous year in an executive, managerial or specialized knowledge capacity prior to entry into the U.S. • Maximum stay: – L-1A executive or manager is 7 years – L-1B specialized knowledge worker is 5 years. • Time spent in L-1 status counts toward the 6-year H-1B maximum. • L-2 spouse can apply for work permit. • Allows for “dual Intent” O-1 Extraordinary Ability or Achievement • Extraordinary ability in the arts, sciences, business, athletics and education; or • Extraordinary achievement in the motion picture or television industry. • Must be able to prove the person is one of the very few that have risen to the top of his/her field of endeavor. • There is no limitation on number of extensions permitted for O-1 classification. Extensions may be granted so long as the beneficiary continues to meet the regulatory requirements. Upcoming International Travel? Plan Ahead for a Smoother Entry and Exit Do I need a visa? “My non-immigrant change of status has been approved.” “My visa stamp is expired.” Do I need a new visa in my passport? Except for Canadian citizens and Visa Waiver Visitors, a valid, unexpired visa issued by a U.S. consulate is needed to enter or re-enter the United States • Exception: 30 day automatic revalidation rule for travel to Canada or Mexico Visa Application at the U.S. Consulate -Make visa appointments well in advance of international travel – check consulate website for processing times www.travel.state.gov “Visas” Passport must be valid for at least 6 months • Immigration documents for the visa status – eg. I-20s, DS-2019, I-797 approval notice – Attorney Certified Copy of I-129 Petition, if applicable – Original supporting documents – Visa fees; may be payable at a local bank designated by the particular U.S. Consulate – Passport photo – DS-160 application forms completed online Visa Application and Possible Delays: Driving Under the Influence • In 2007 the Department of State (“DOS”) issued instructions to Consular Posts requiring consular officers to refer nonimmigrant visa applicants to panel physicians for medical examinations if the applicant has: – (1) A single drunk driving arrest or conviction within the last three years, or – (2) Two or more drunk driving arrests or drunk driving convictions in any period of time. • Directive is not discretionary. Officers must also refer applicants to physicians if there is any other evidence to suggest an alcohol problem. • Visa applicants should have available a certified copy of arrest report and court disposition. Visa Application and Possible Delays: Security Clearances • Types of Security Clearances: – Criminal Background Check: Name check of the visa applicant or similar biographical information results in a “hit” – name similar to someone with a criminal record. – Visas Condor: Applies to male citizens ages 16-45 from any of the listed “Countries of Concern” or “Countries that Sponsor Terrorism”. – Visas Mantis / Technology Alert List: Applies to a list of “critical” fields that the DOS has determined a cause for concern such as advanced computer, chemical, sensory technology, information security, and robotics. Canada/Mexico Option for Third Country Nationals (TCNs) • U.S. consulates in Mexico will no longer accept TCN applicants unless the same visa they are seeking was issued in home country – eg. F-1 with H-1B approval can not apply • U.S. consulates in Mexico and Canada will generally not accept TCN applicants who have been out of status in the U.S. by having violated terms of their visas or having overstayed the validity indicated on their I-94s. • Citizens of Iran, Sudan, North Korea, Cuba, and Syria cannot apply for visas in Mexico or Canada. Form I-94 Arrival / Departure Record Issued at Entry to the U.S. • It is very important to confirm that each I-94 Card is completed correctly – check visa class and expiration date • Be aware that the I-94 validity could be “cut short” due to passport validity. NSEERS Registration • Registration of certain nonimmigrants upon their entry into the United States and when leaving the U.S. • Individuals are selected by the CBP Inspecting Officer or the Consular Officer abroad for registration upon entry, based on the Officer’s virtually unlimited discretion. Usually, this is based on the individual’s country of origin (primarily includes all Islamic countries). • Registration upon entry requires fingerprinting and photographing as well as the provision of additional information which may be requested by the CBP Inspecting Officers. Address Change Notification • Within 10 days of moving to a new address within the U.S. all foreign nationals must file a form AR-11 with USCIS. • Each family member must submit their own AR-11. • Possible to submit online at www.uscis.gov Most Common – A 3-Step Process to Lawful Permanent Resident Status 1. Labor Certification PERM filed with Dept. of Labor 2. Immigrant Visa Petition – Form I-140 filed with USCIS 3. Adjustment of Status Application –Form I-485 filed with USCIS Labor Certification PERM Application Employer must demonstrate to the Department of Labor (DOL) that no U.S. workers are: – minimally qualified; – willing; – available; and – able to perform the duties Prevailing Wage is required Employer, location, and position specific Employer MUST pay all PERM costs Advertising and Recruitment Required • Employer must determine the minimum education and experience for the position • Obtain a Prevailing Wage Determination • Begin Recruitment: 1) Job Order with State Workforce Agency 2) Internal Posting 3) Two Sunday Advertisements (or 1 Sunday newspaper ad and one journal ad) 4) Three Additional Recruitment Steps for Professional positions such as Job Fairs, Employer’s Web Site, Journal ad etc. Review/interview U.S. applicants PERM Labor Certification • PERM regulations establish a strict and unforgiving timeline for recruitment steps • Applications are filed electronically with DOL office in Atlanta, Georgia • All supporting documents must be kept for 5 years in case of audit by DOL • Date the PERM is filed is the “priority date” for the queue for immigrant visa wait • Current PERM processing time with no audit ranges from 2 weeks to several months • Current Audit processing time is 2 years Optional Special Recruitment for College and University Teachers Basic Requirements For Special Recruitment Perm • Qualified institutions. The teaching position must be at an accredited educational institution that offers a 2 year associate degree or higher degree. • Limited to teaching positions. Requires some amount of actual classroom instruction. • Evidence that a competitive recruitment and selection process was conducted. • A print advertisement in a national professional journal is required. • File within 18 months of the formal selection decision. The labor certification application must be filed within 18 months from the date that the foreign national was selected for the position. • Posting Notice - Prior to filing, a Posting Notice must be posted and all required documentation and information must be collected and prepared for filing. Immigrant Visa Petition Form I-140 based on PERM approval Requirements for I-140: Documents that employee has the required education & experience Financial Documents to show company can pay offered salary Must be filed within 180 days of PERM approval Premium processing available in most cases Upon approval, priority date is set and can move with the foreign worker Employment-Based Preference Categories *No Labor Certification Required 1. Multi-national Executive/Manager * Advanced Degree Professional 2. Exceptional Ability 3. Third Preference Outstanding Researcher * 1. Second Preference 2. 3. First Preference Extraordinary Ability * National Interest Waiver * 1. Skilled Worker (job requires 2 Years of Experience) 2. Professional (job requires a Bachelors Degree) March 2011 Visa Bulletin Employment-Based The Visa Bulletin can be found at www.fosterquan.com or at the Department of State website at www.travel.state.gov. All Chargeability Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINES Employment- Based 1st C C C C C 2nd C 08JUL06 08MAY06 C C 3rd 01JUL05 22JAN04 15MAR02 08JAN04 01JUL05 Other Workers 15JUN03 22APR03 15MAR02 01MAY03 15JUN03 PERM Exempt Immigrant Visa Categories • EB11 - Extra Ordinary Ability • EB12 - Outstanding Professor or Researcher • NIW (EB-2) - National Interest Waiver EB 11-Extraordinary Ability “Sustained national or international acclaim; Small percentage at the top of the endeavor; will substantially benefit prospectively the U.S.”, and • 1 major international award or at least 3 of 10 criteria • Fields of Endeavor: Sciences, Arts, Education, Business or Athletics • Petitioner: Employer or Self • Priority Date: Established on the date the I-140 is filed • Visa Availability: EB-11 current for all countries EB 11-Extraordinary Ability Criteria Documentation of 1 major international honor or at least 3 of the following: 1. Receipt of lesser national or internationally recognized awards 2. Membership in associations requiring outstanding achievement 3. Published material about the person in professional publications or other major media; 4. Participation as a judge of the work of others; 5. Original contributions of major significance; Authorship of scholarly articles in the field; 6. Artistic exhibitions; 7. Performance in leading role for organizations with distinguished reputations; 8. High salary or remuneration 9. Commercial success in the performing arts EB 12-Outstanding Professor or Researcher “Recognized internationally as outstanding in the academic field” • At least 3 years experience • and at least 2 of 6 criteria • Fields of Endeavor: Academic fields • Petitioner: Employer required; no self-petition 1. Need a permanent offer of employment – tenure, tenure track or term of indefinite or unlimited duration 2. Employer is a university or institution of higher learning or private employer with 3 full time researchers • Priority Date: Established on the date the I-140 is filed • Visa Availability: EB-12 current for all countries EB 12-Outstanding Professor or Researcher Criteria Internationally recognized as outstanding in the academic field as shown by at least 2 of the following: 1. receipt of major prizes or awards for outstanding achievement 2. membership in associations which require outstanding achievements 3. published material in professional publications written by others about your work 4. participation as the judge of the work of others in the same academic field 5. original scientific or scholarly research contributions to the academic field 6. authorship of scholarly books or articles in journals with international circulation EB 21/22–National Interest Waiver • Requires “Advanced degree” OR “Exceptional ability in science, arts or business” • It is in the national interest to waive labor certification • National interest is adversely affected to require labor certification • Petitioner: Employer or Self • Priority Date: Date I-140 filed • Visa Availability as of March 2011: China – July 8, 2006 India – May 8, 2006 Current for other countries “National Interest” Test Mississippi Phosphate test: 1. Improving the U.S. economy; 2. Improving wages/working conditions of U.S. workers; 3. Improving education and training programs for U.S. children and under qualified workers; 4. Improving health care; 5. Providing more affordable housing for young and/or older, poorer U.S. residents; 6. Improving the U.S. environment and making more productive use of natural resources; 7. A request from an interested U.S. governmental agency. “National Interest” Test NYSDOT test: 1. Employment sought is in an area of substantial intrinsic merit 2. Proposed benefit must be national in scope; 3. U.S. national interest adversely affected if labor certification were required Priority Dates & Permanent Residency Processing • I-485 Adjustment of Status can not be filed until Priority Date is current • If Priority Date retrogresses after I-485 is filed, the I-485 cannot be approved until it is current again • I-140 & I-485 can be concurrently filed • Principal can “cross charge” to spouse’s country of birth • An earlier EB priority date can be “re-captured” if the earlier I140 was approved • Dependent family members get the same Priority Date Step 3 - Adjustment of Status Form I-485 Purpose: Show employee and dependent family are admissible to U.S. – No medical issues, such as tuberculosis (Medical exam required) – No criminal convictions (Biometrics required) – No past US immigration violations fraud/misrepresentation/ deportation – No claim to being a US citizen – No membership in terrorist or communist organization Success! – Green Card Contact Us 600 Travis, Suite 2000 Houston, Texas 77002 713-335-3971 FosterQuan.com