for Students and Scholars

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Gøran Berger
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1 Immigration Options for Students and Scholars Tuesday, February 21, 2012 Philadelphia William A. Stock, Esq. New York 1800 John F. Kennedy Blvd., Floor Madison Ave., Suite 1518 Philadelphia, PA New York, NY

2 William A. Stock, Esq. Bill Stock is a founding partner of and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 18 years. Bill is featured in Chambers Global, Best Lawyers in America, Pennsylvania Super Lawyers, Who s Who of Business Lawyers and other guides to prominent attorneys. He is active in the American Immigration Lawyers Association on a national level, currently serving as a national Director on the Association s Board of Governors and chairing two national committees. He is also active in NAFSA s Region VIII and as a Regulatory Ombudsman for the region on scholar and faculty issues. Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and has served as an Adjunct Faculty Member at Villanova University School of Law.

3 Immigration Options for Students and Scholars Agenda Issues with Prospective Employers H-1B Visas H-1B Quota Options for Dealing with H-1B Quota Quota-Exempt Employment Strategies to Enhance Chances of Getting H-1B OPT vs. H-1B Cap Gap Employment

4 Immigration Options for Students and Scholars Agenda (cont d) Other Visa Options Permanent Resident Status Family, Investment, Asylum, Lottery Permanent Resident Status Employment Evaluating Eligibility Quotas Q & A Session

5 Issues with Prospective Employers Policies regarding H-1B Employer required to pay fees, post notice and maintain documentation Job market affects employer willingness to sponsor Policies regarding green card sponsorship Short term vs. Long term employment Employers consider long term even for H-1B sponsorship

6 Basic requirements Job Offer H-1B Visas Part-time or full-time Specialty S occupation Job requires bachelors or higher degree in specific field Prevailing wage Bachelors or higher degree Determine U.S. equivalence of foreign degree Combination of education and experience

7 H-1B Visas Procedure and processing time File Labor Condition Application with DOL File H-1B petition with CIS Change of status or consular visa issuance Processing time 3 to 6 months 15 days or less with premium processing (cont d)

8 H-1B Visas Length of approval and extensions 3 year initial approval and 3 year extension (cont d) 6 year maximum any combination of employers Extensions beyond 6 years Recapture time out of U.S. 1 year extension if file labor certification application or immigrant petition one year before expiration 3 year extension if immigrant petition approved and quota backlog

9 H-1B portability H-1B Visas Present or prior H-1B Commence employment upon new employer filing petition Spouses H-4 cannot work (limited proposal to change) Travel Dual intent t (cont d)

10 H-1B Quota What is it, and what does it mean? 65,000 visas base, plus 20, additional for US advanced degree holders Timing April 1 filing date October 1 start date Who is not subject to the quota? Universities & their nonprofit affiliates Employed at university Nonprofit or government research organization Concurrent employment Previous H-1B

11 Strategies t to Enhance Chances of Getting H-1B Obtaining masters degree Filing multiple l years Filing first day Using previously-obtained i degree Combination of education and experience Start your own business? Apply as H-1B employee?

12 OPT vs. H-1B Maximize use of OPT time Tax benefit to OPT Advantage to getting H-1B quota number How to get best of both

13 Cap Gap Employment Work authorization between end of OPT and October 1 Cannot travel out of country

14 Other Visa Options F-1 Going back to school Separate options for Canada, Mexico, Australia, Chile and Singapore TN-1, E-3, H-1B1 Working overseas for U.S. employer Look at spouse s status Spouse of J, E and L can work

15 Other Visa Options J-1 1Visas Trainee, researcher, scholar Who is subject to 2-year return? What does it mean to be subject? Options if subject: Return home O-1 Waiver Where is home? Aggregating trips? (cont d)

16 E-1 Treaty Trader Other Visa Options Substantial import or export Treaty country nationality Executive, supervisor, essential skill employee E-2 Treaty Investor Substantial investment No exact amount (cont d) Treaty country nationality Investor or employee (executive, supervisory or essential skill) L-1 Intracompany Transferee Related company (equity ownership) One year employment overseas Managerial or specialized knowledge Overseas and U.S.

17 Other Visa Options O-1 Visas Employer sponsored Standards National or international reputation Documentation Reference letters Length of approval 3 years Unlimited one year extensions Spouses O-3 cannot be employed (cont d)

18 Permanent Resident Status Family Investment Asylum Employment Lottery

19 Family Spouse of U.S. citizen No quota wait EAD and AP within 3 months All other relationships Long quota wait No interim benefits

20 Investment $500, or $1,000,000 Individual investment or regional center

21 Asylum Individualized fear of persecution Race, religion, nationality, political opinion, social group, sexual persuasion

22 Lottery Only specified countries One year window Apply in October t t

23 Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions

24 Permanent Resident Status Self-Sponsored Extraordinary ability EB-1 Standard Employment National or international reputation One of few at the top of peers Key is defining field of expertise specifically First? Only? Best? Media publicity Extensive documentation required Reference letters critical (cont d)

25 Permanent Resident Status Employment National Interest Waiver EB-2 Standard Exceptional ability or advanced degree National priority National impact Extensive documentation required Reference letters critical (cont d)

26 Permanent Resident Status Employment Employer-Sponsored Outstanding Researcher EB-1 Permanent position Similar to extraordinary ability Multinational Manager EB-1 (cont d) Same as L-1 except must be manager or executive overseas

27 Evaluating Eligibility ibilit 1 st listed author publications Impact factor? Citations Presentations 1 st listed abstracts Book chapters Honors and awards Manuscripts reviewer Importance/narrowness of field of expertise Referees

28 Permanent Resident Status Employment Labor Certification Application (PERM) EB-2 or EB-3 Employer must: Pay attorney fees and advertising costs Define e minimum requirements e e (cont d) Engage in required recruitment (approximately 4-5 months) Interview U.S. worker applicants Prove unavailability of qualified, interested, and available U.S. worker Pay prevailing wage

29 Permanent Resident Status Employment Timing Mandatory Recruitment Steps ( days) Filing and Initial Review (4-5 months) Audit Review, if Audited (5+ months additional) First of three steps: Quotas determine overall time (cont d)

30 Quotas Per country of birth, per preference category, per fiscal year Filing date is priority date EB-1 (extraordinary ability, outstanding researcher, multinational manager) No quota wait

31 Quotas EB 2 (national interest waiver and labor certification) EB-2 (national interest waiver and labor certification) National interest waiver Labor certification requiring Masters degree Bachelors degree plus 5 years progressive experience, or Exceptional ability No quota wait, except China and India EB-3 Labor certification requiring bachelors or 2 years experience Long quota wait for all countries (cont d)

32 Permanent Resident Status I-140 Petition Employment 1 st step for EB-1 and national interest waiver 2 nd step for PERM Employee documents education and experience (cont d) If adjustment of status, file concurrently with I-485 if quota current If consular immigrant visa processing, approval sent to National Visa Center

33 Permanent Resident Status Employment (cont d) I-485 (Application for Adjustment of Status to Permanent Resident) Cannot file until quota is current Importance of filing Do not need to maintain visa status Can file for spouse and child Can get Employment Authorization Document (EAD)

34 Permanent Resident Status t Employment Can get advance parole travel document Eliminate need to obtain visas Can still maintain and extend H-1B status Can leave employer if I-140 approved I-485 pending 180 days Similar occupation Permanent resident upon approval Timing and delay issues (cont d)

35 Materials Please visit to download this PowerPoint presentation and relevant articles.

36 Questions?

37 For Further Information William A. Stock, Esq. Telephone: Website: Blog: (Philadelphia) (New York)

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