March 2, 2012 Suzanne B. Seltzer, Esq. Klasko, Rulon, Stock & Seltzer, LLP New York Philadelphia 317...

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

[email protected] www.klaskolaw.com

Post Student Years:Post Student Years:Immigration OptionsImmigration Options


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).


Hot Topics in Immigration Law Agenda

H-1B Visas H-1B Requirements H-1B Alternatives Introduction to Permanent Residency Q&As


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


H-1B Visas Part-time or full-time Length of approval Extensions Portability Spouses and Employment Authorization Travel


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


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


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


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


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


Avoiding H-1B Quota

Exemption based on employee Previously counted (in last 6 years) Singapore/Chile Concurrent employment


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)


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


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


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


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


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


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


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)


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)


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?


How Do I Apply?

Family Investment Asylum Employment DV Lottery


Permanent Residency Quotas

Annual Limit on Permanent Residency Per Country Limit – 7% Allocated by:

Priority Date – place in line Preference Category


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


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


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


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


For Further Information

Suzanne B. Seltzer, Esq.Klasko, Rulon, Stock & Seltzer, LLP

E-mail: [email protected]

Telephone: 212-796-8840 (New York)

215-825-8600 (Philadelphia)

Websites: www.klaskolaw.comwww.eb1immigration.com

Blog: http://blog.klaskolaw.com

March 2, 2012 Suzanne B. Seltzer, Esq. Klasko, Rulon, Stock & Seltzer, LLP New York Philadelphia 317...

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