Post on 01-Jan-2016
March 2, 2012Suzanne B. Seltzer, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
New York Philadelphia317 Madison Avenue, Suite 1518 1800 John F. Kennedy Blvd., Floor 17 New York, NY 10017 Philadelphia, PA 19103212.796.8840 215.825.8600
sseltzer@klaskolaw.com www.klaskolaw.com
Post Student Years:Post Student Years:Immigration OptionsImmigration Options
Klasko, Rulon, Stock & Seltzer, LLP
Suzanne B. Seltzer, Esq.
Suzanne B. Seltzer is a partner of Klasko, Rulon, Stock & Seltzer LLP. Ms. Seltzer is the Chair of the American Immigration Lawyer's Association (AILA) USCIS Benefits & Policy Liaison Committee, is a member of AILA’s InterAgency Liaison Committee, and recently completed her tenure as the Vermont Service Center (VSC) liaison and as a NAFSA Regulatory Ombudsman. Ms. Seltzer speaks and writes extensively on visa options for scientists and researchers.
She is listed in Best Lawyers in America, Chambers USA, New York SuperLawyers, and the International Who's Who of Corporate Immigration Lawyers.
A magna cum laude graduate of the University of Pennsylvania, Ms. Seltzer received her law degree from Georgetown University’s Law Center (cum laude).
Klasko, Rulon, Stock & Seltzer, LLP
Hot Topics in Immigration Law Agenda
H-1B Visas H-1B Requirements H-1B Alternatives Introduction to Permanent Residency Q&As
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H-1B Visas Basic requirements
Job Offer Prevailing Wage Specialty occupation
Position normally requires at least a Bachelors or higher degree in a related field
Legal/Filing fees Maximum of 6 years
Procedure and processing times
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H-1B Visas Part-time or full-time Length of approval Extensions Portability Spouses and Employment Authorization Travel
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H-1B Issues for Start-Ups Must establish company with employer tax I.D. number Can company be owned by H-1B employee?
Must be W-2 employee Company separate entity from owner/employee
Company right of control over employee Board of Directors?
Company must prove Financial ability to pay salary Real job to be done by H-1B Place of business
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H-1B Issues for Start-Ups
Other employees or owners required? Ability to hire/fire
Importance of business plan/financial projections Prevailing Wage
CEO vs. function-descriptive position
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H-1B Quota
What is it and what does it mean? 20,000 for US awarded advanced degrees
FY 2012 gone by October 19, 2011 FY 2011 gone by December 22, 2010 FY 2010 gone by April 2009 FY 2009 gone by April 2008 FY 2008 gone by April 2007
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H-1B Quota
65,000 H-1Bs FY 2012 gone by November 22, 2011 FY 2011 gone by January 26, 2011 FY 2010 gone by December 2009 FY 2009 gone by April 2008 FY 2008 gone by April 2007 FY 2007 gone by May 2006
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Avoiding H-1B Quota
Exemption based on employer Universities Non-profits affiliated with universities
Increased scrutiny of affiliations
Non-profit research organizations Government research organizations
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Avoiding H-1B Quota
Exemption based on employee Previously counted (in last 6 years) Singapore/Chile Concurrent employment
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Travel and Status Issues forH-1B Approvals
Change of status vs. consular visa issuance Visa - Permission to re-enter the U.S. after a trip
abroad (stamp in passport) Need visa in specific classification to re-enter in that
status Status - Permission to remain in the U.S. for a fixed
period (Denoted by ‘I-94’ card and I-20 or DS-2019) Only hold status in one classification at a time (i.e. -
cannot have an F and an H)
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Travel and Status Issues
Travel after April 1 Depart US, relinquish I-94 F visa to come back to use OPT? What about H? What happens to petition?
Maintaining status until October 1 “Cap gap” relief OPT must be valid at time H-1B petition is filed Extends only until Sept 30
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H-1B Alternatives: Ls
L-1: ‘intracompany transfer’ Must have worked for petitioning company overseas
for at least one year in the last three years For execs, managers, or special knowledge Spouse eligible for employment authorization Maximum 7 years in L status
NOTE: H & L combined – max 7 years
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Alternatives: Es
■ Must be national of treaty country http://www.travel.state.gov./visa
■ Employing company must be owned at least 50% by treaty country nationals
■ No quota and can be extended indefinitely
■ Spouse eligible for employment authorization
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Alternatives: TN
Citizens of Canada and Mexico Must have employer and job offer Profession must be on the NAFTA list Applicant must have qualifications as indicated
on NAFTA list Must evidence non-immigrant intent
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Alternatives
I visa – journalists O visa
Artists with distinction in field; or Scientists with extraordinary ability
E-3 – Australians only, similar to H-1B Dependent on spouse visa
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What is Permanent Residency?
Authorization to Live & Work Indefinitely in the United States
“Immigrant Visa” The “Green Card” or “Form I-551” Not always ‘forever’ – may be abandoned
or taken away
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Immigrant Versus Non-Immigrant Visas
Immigrant Visa Green Card/Permanent Residency
Non-Immigrant Visa (NIV) H, F, J, O, etc Limited duration Specific to employer/institution Specific to purpose (work/study/tourism)
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Nonimmigrant to Immigrant
F-1 – attend school
F-1 OPT – start work
H-1B/L-1 – continue working; max 6 years total in H, 7 in L
H-1B – change employer, continues to count
against 6 years maximum (L trickier to change)
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Nonimmigrant to Immigrant
H-1B – change employer, requires new petitionmay start working under ‘H-1B portability’
4th Year H-1B status – start thinking about LPR
maintain NIV status until LPR
6 years in H-1B, other options? Eligible to file adjustment of status?
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Permanent Residency Quotas
Annual Limit on Permanent Residency Per Country Limit – 7% Allocated by:
Priority Date – place in line Preference Category
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Permanent Residency Quotas
Employment Based Preferences First Preference (EB-1)
Extraordinary Ability, Outstanding Researcher, Multinational Executive
Second Preference (EB-2) Advanced Degreed Professionals, including Bachelors plus
5 years exp. Third Preference (EB-3)
Skilled Worker (2+ years experience), Bachelor’s Degree Fifth Preference (EB-5)
Investment in the U.S. that creates at least 10 U.S. jobs
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Permanent Residency Quotas, Where Are We Now?Visa Bulletin March 2012
All Chargeability Areas Except Those Listed
CHINA-mainland born
INDIA MEXICO
PHILIPP-INES/ DOMINICAN REPUBLIC
EmploymentBased
1st C C C C C
2nd C 01MAY10 01MAY10 C C
3rd 15MAR06 01JAN05 22AUG02 15MAR06 15MAR06
5th C C C C C
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Residency Quotas,Where Are We Now?
“Oversubscribed” versus “Available” Available if:
Visa Bulletin indicates “C” = current Priority date earlier than posted date
Predictions from State Department for FY2012 EB-1 approvals are down almost 50% This will advance EB-2 in China or India China EB-3 will advance a little; India EB-3 not at all
Klasko, Rulon, Stock & Seltzer, LLP
Employer-sponsored or self-sponsored Labor certification or extraordinary/NIW Filing multiple under different categories? Multi-Step Process
Department of Labor? USCIS I-140 USCIS – I-485
Non-Immigrant Status?
Employment Based (EB)Permanent Residency Considerations