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Transcript of Presented to: UNCC Students February 20, 2015 6100 Fairview Road, Suite 200 Charlotte, NC 28210 P...
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Immigration Law Overview
Presented to: UNCC StudentsFebruary 20, 2015
6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com
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Based in Charlotte, North Carolina
One of the largest immigration law firms in the Southeast
Six (6) immigration attorneys & twenty (20) paralegals/support staff
Our clients include:
◦ Numerous NC colleges & universities◦ Several NC healthcare systems◦ One of the largest automotive suppliers in the world◦ One of the largest supermarket chains in the U.S.◦ The second largest public school system in NC
Garfinkel Immigration Law Firm
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BA & JD – Wake Forest University
Practicing Immigration & Visa Law since 1984
American Immigration Lawyers Association (AILA)
◦ Member since 1985◦ Carolinas Chapter President 1995 & 1996◦ Served on National Board of Directors
Certified as a Specialist in Immigration & Nationality Law by NC State Bar since 1997
Member of Alliance of Business Immigration Lawyers (ABIL)
Presented by: Steven H. Garfinkel, Esq.
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B.A., Hollins College J.D., Stetson University Practicing Immigration & Visa Law since 1995 Certified as a Specialist in Immigration &
Nationality Law by NC State Bar American Immigration Lawyers Association
(AILA)◦ Member since 1995◦ Former Secretary, Treasurer, AILA Central
Florida Chapter; Former Treasurer, AILA Carolinas Chapter
Best Lawyers in America, 2013-2015 International Who’s Who of Corporate
Immigration Lawyers, 2012-2015
Jennifer L. Cory
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Introduction
Temporary Work Visas (including H-1B Visa)
◦ Types of Visas◦ H-1B Issues
“Green Card” Options, Process & Availability
Questions & Answers
Overview
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Department of Homeland Security comprised of:◦ US Citizenship & Immigration Services (“CIS”)◦ US Immigration & Customs Enforcement (“ICE”)◦ US Customs & Border Protection (“CBP”)
Department of State:◦ Responsible for visa services at U.S. consulates abroad
Department of Labor:◦ Administers Permanent Employment Certification
Application process
Federal Agencies Administering U.S. Immigration Law
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Two Visa Categories
Nonimmigrant – TemporaryImmigrant –
Permanent (Green Card)
Visa Categories
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Non-immigrant Visa Type
Sponsorship Required
Duration of Visa
Self Petition Work Permission Spousal Work Permission
H-1B Employer must sponsor and cover all associated fees
Up to 6 years (longer in some cases)
No Yes No
H-3 Trainee Employer must sponsor
Up to 2 years, no extension
No Employment only incidental to training, stipend
No
J-1 Exchange Visitor (Trainee/Intern)
Approved agency must sponsor
18 months (Trainee); 12 months (Intern)
No With DOS approval
Yes, with EAD
L-1A/L-1B Intracompany Transferee
Employer must sponsor
Up to 7 years (L-1A) or 5 years (L-1B)
No Yes Yes, with EAD
E-1/E-2 Treaty Trader/Investor
Employer must sponsor
Up to 5 years, renewable indefinitely
Yes- If owner of company
Yes Yes, with EAD
O-1 Extraordinary Ability
Employer must sponsor
Up to 3 years and extensions possible
No Yes No
TN- NAFTA Employer must sponsor
Up to 3 years and extensions possible
No Yes No
Nonimmigrant Overview
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B-1/B-2 (Visitor Visa/Visa Waiver)
F-1 (Student Visa)
H-3 & J-1 (Trainee Visas)
L-1 (Intracompany Transferee)
E-1/E-2 (Treaty Visas)*
O-1 (Extraordinary Ability)*
TN-1 (NAFTA Professional)*
H-1B (Professional)*
Common Nonimmigrant Visas
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Always employer-specific
May be position- & location-specific (depending on visa type)
Processing times for visa petition approval/visa issuance normally 90-120 days
Premium Processing Program - $1,225 secures 15-day adjudication/review
Employment-Based Nonimmigrant Visa
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Position offered must require at least a Bachelors degree
FN must possess degree (or equivalent) related to position offered
Visa is location & job specific
H-1B Visa - Overview
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Six (6) year limit (with exceptions) – granted in maximum of 3-year increments
Employer must file petition, agree to pay “required wage” & return transportation costs upon termination
FN in valid H-1B status may transfer & work for new employer upon filing of H-1B petition (portability)
H-1B Visa - Overview
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Since 1990, annual cap on number of H-1B petitions which may be approved
USCIS may only approve 65,000 visa petitions per fiscal year
Additional 20,000 visas authorized for those with U.S. Masters & Ph.D. degrees
H-1B Visa- Overview
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Filing period began April 1, 2014
On April 7, 2014, USCIS reached 65,000 H-1B petition cap AND 20,000 H-1B “advanced degree” cap
USCIS received approximately 172,500 total petitions
FY 2015 (10/1/14 – 9/30/15)
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Filing period begins April 1, 2015
Many expect cap to be reached in early April
Once cap is reached, no “cap subject” H-1B petitions accepted until April 1, 2016 (absent change in law)
FY 2016 (10/1/15 – 9/30/16)
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The following are subject to annual cap:◦ FNs seeking H status for 1st time◦ FNs changing from cap-exempt to cap-subject employer
The following are NOT subject to annual cap:◦ Petitions for FNs currently in H-1B status (i.e., extensions
or change of employers)◦ FNs who have been counted against H-1B cap within
past 6 years◦ FNs who work at institutions of higher education or
nonprofit related to/affiliated with institutions of higher education
H-1B Visa – Does Annual Cap Apply?
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Applies to F-1 students on OPT where H-1B petition accepted on or after April 1
Extends employment authorization from OPT end date (if after April 1 and before October 1) to H-1B effective date
Does not authorize travel
H-1B Visa – “Cap Gap” Rule
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E-1/E-2 - Treaty Trader/Treaty Investor
O-1 - Extraordinary Ability
TN - Treaty NAFTA
L-1 – Intracompany Transferee
Other Nonimmigrant Work Visas
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Five Ways to Qualify
Family Asylum Investment Diversity Lottery
Employment
Immigrant Visa Options
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Employment-Based Immigrant Visas (“Green Cards”)
•Priority WorkersEB-1•Advanced Degree Professionals and FNs of Exceptional AbilityEB-2•Professionals, Skilled and Unskilled WorkersEB-3•Special ImmigrantsEB-4•Employment CreationEB-5
Five (5) employment-based categories:
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International Managers & Executives
Outstanding Professors & Researchers*
FNs of Extraordinary Ability *
◦ *USCIS regulations contain list of eligibility criteria
EB-1 Priority Workers
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To qualify as “advanced degree professional”, FN must possess advanced degree & position must require advanced degree (or equivalent)
USCIS regulations set out criteria for exceptional ability
Can bypass labor certification process by proving employment would serve U.S. “National Interest”
EB-2 Advanced Degree Professionals & FNs of Exceptional Ability
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For FN who possesses 4-year university degree where job offered requires degree; or
For FN who possesses minimum of 2 years of experience in position requiring minimum of 2 years of experience
EB-3 Professional, Skilled and Unskilled Workers
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STEP 1 – Labor Certification (“PERM”)
◦ Requires proof of no minimally qualified available U.S. workers
◦ Current Processing times: 18 months if no DOL audit
◦ 12+ months if audited
EB “Green Card” Estimated Processing Times
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STEP 2 – Immigrant Petition, Form I-140◦ Current processing times: Six (6) months +
Step 3 – Application for Adjust Status, Form I-485** ◦ Current Processing times: Up to nine (9) months
** APPLICATION CANNOT BE FILED UNLESS PRIORITY DATE IS CURRENT
EB “Green Card” Estimated Processing Times (con’t)
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February 2015 Visa Availability (Except India & China Born)
• CURRENT1st
Preference
• CURRENT2nd
Preference
• January 1, 20143rd
Preference
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•CURRENT1st Preference
•September 1, 20052nd
Preference
•December 22, 20033rd
Preference
February 2015 Visa Availability for India Born
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• CURRENT1st Preference
• March 15, 20102nd Preference
• September 1, 20113rd Preference
February 2015Visa Availability for China Born
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Increase number of years STEM graduates can participate in OPT
Allow individuals whose 1st college degree is in STEM but 2nd degree is not to qualify for STEM OPT (e.g., MBAs with Bachelors in Engineering)
Expand STEM degree field list
Issue guidance to clarify ability of entrepreneurs, researchers, inventors & founders to quality for National Interest Waiver green card
Temporary injunction affects only expanded DACA & DAPA programs
President Obama’s Executive Action Proposals
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Uncertain in light of Executive Action
Comprehensive law would likely include
◦ Legal status for “undocumented”
◦ Employee verification system
◦ Changes to legal immigration
New Immigration Legislation?
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Questions & [email protected]
6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com