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Life After OPT: Work Visa Options During the seminar: Please use your “Chat” function to ask questions
Wolfsdorf Immigration Law Group
Tien-Li Loke Walsh, Esq.
Attorney at [email protected]
1-800-VISA-LAW
1416 2nd Street
Santa Monica, CA 90401
© 2010 Wolfsdorf Immigration Law Group (all rights reserved)
The contents of this document are proprietary and should not be duplicated or shared without express permissionfrom Wolfsdorf Immigration.
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CPT and OPT
• Curricular Practical Training (CPT)– Allows employment during school year
under certain circumstances
• Optional Practical Training (OPT)
– How long does it last for?
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OPT – New Changes – April 2008
• 17-Month Extension of OPT (total of 29 months)
– STEM students (Science, Technology, Engineering,
Mathematics)
– DHS STEM designated degree program list –
www.ice/gov/sevis– Job must directly relate to degree major
– Employer must be registered with E-Verify
– STEM OPT must be from degree that OPT is based on
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OPT (continued)
• Unemployment periods
– 90 days of unemployment = out of status
(regular 12-month OPT)
– 120 days of unemployment = out of status
(STEM 29-month OPT)
• How to avoid periods of “unemployment”
– Volunteer – minimum 20 hours in your field of study
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OPT (continued)
• Don’t forget to apply– 90 days prior to graduation; or
– 60 days after graduation
• Apply even if you plan to return home after
graduation
• Use it as a stepping stone – find that H-1Bemployer!
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What Are Your Options?
• H-1B Professional Occupation Visa– What is a professional occupation?
– Job must be one that requires a Bachelor’s
degree in that field to perform the job
– E.g. Financial Analyst, Accountant, Engineer,
Account Executive, Operations Analyst,
Computer Scientist, Software Engineer,Graphic Designer
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The H-1B Quota
• Fiscal Year (FY) October 1 to September 30
• H-1B Quota/Cap – private industry
employers
– 65,000 per fiscal year• 5,400 Singapore
• 1,400 Chile
– 20,000 for U.S. graduates with MA or higherdegree
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Cap-exempt organizations
• i.e. employer is not subject to the H-1B
cap
– Institutes of higher education, i.e. universities
and colleges– Non-profit organization affiliated with institute
of higher education
– Non-profit research organization– Government research organization
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H-1B Government Filing Fees• Training fee
– $1,500 for employers with 26 or more employees
– $750 for employers with 25 or fewer employees• All new H-1B’s, change-of-employer and first extension
• Private industry only; cap-exempt organizations do not paytraining fee
• Fraud fee of $500– All new H-1B’s and change of employer petitions
– Not required for extensions
– All must pay (private industry and cap-exempt organizations)
• Regular filing fee $320; $300 for derivatives• Premium processing (Optional): $1,000
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H-1B Portability
• Can transfer H-1B to new employer at anytime
– not subject to H-1B cap again (already counted
as part of the H-1B cap)
• Portability allows commencement of new
job upon “filing” of new petition – no need
to wait for approval
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H-1B Portability
• Cap-exempt H-1B to cap-subject employer(university to private industry)
– Subject to H-1B cap (never been counted)
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Other H-1B Scenarios• H-1B Remainder Option – previously held
H-1B status and did not use 6 yearmaximum?
– e.g. H-1B to F-1 to H-1B
– e.g. previously held H-1B and then left U.S.• Use remainder of time – not subject to cap
• If physically outside U.S. for more than one year:
– Recapture unused time (not subject to cap); or– File for new 6 years but subject to H-1B cap
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H-1B Process• Agencies involved: USCIS and Department of
Labor (DOL)
• Department of Labor steps:1. Verify Federal Employer Identification Number (EIN)
2. Labor Condition Application (LCA)• must post LCA at worksite for 10 consecutive business days
in two conspicuous locations– LCA attestations include
» Must pay prevailing wage
» Actual wage – cannot include discretionary bonuses,commissions, benefits, 401(k)
– Must offer same benefits as offered to U.S. workers– No strike at workplace
– Must keep Public Access File
• Submit LCA to DOL online
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H-1B Process
• USCIS steps1. Submit application via mail to USCIS
• Support Letter with job description
• Forms I-129, I-129 H, I-129 Data Form
• Government Filing Fees
– Training fee ($1,500/$750) must be paid by the employer
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Employer Responsibilities
• Termination• must offer reasonable costs of transportation home
• must notify USCIS
• No benching
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Who is Responsible for all the Fees?• Training fee must be paid by employer
• Fraud fee and other govt. filing fees can be paidby alien or employer
• Legal fees can be paid by alien or employer
• If foreign national pays any of the filing fees orlegal fees - MUST STILL BE PAIDPREVAILING WAGE
• E.g. Prevailing wage is $60,000; alien salary is $60,000. If
alien pays for any of legal fees or government filing fees –salary will drop below PW.
• Who will know?
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H-1B Audits
• Increase in fraud investigations andworksite visits
• USCIS hired 1,500 investigators to conduct
25,000 worksite visits
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Timing Issues – When to File H-1B• March madness: since October 1, 2003
– File April 1, but October 1 start date – fileASAP!
– FY 2010 – cap reached December 21, 2009
– FY 2011 (as of October 22, 2010)• Regular cap: 44,300 out of 65,000
• Masters cap: 16,200 out of 20,000
• H-1B computer generated lottery
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New Rules for F-1s
• H-1B Cap-Gap Relief – applies to all F-1 OPT students who file H-1B
petition during acceptance period (on or after
April 1)– If file H-1B petition on or after April 1
• F-1 status automatically extended
• OPT (employment authorization) automaticallyextended
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F-1/H-1B Cap-Gap Relief
– If selected for H-1B – cap-gap relief until September 30
(H-1B starts on October 1) – no gap!
– If not selected, cap-gap relief ends upon rejection,denial or revocation (60 day grace period from
notification)
GraduationJune 2010
OPTstartsJuly 2010
File H-1BApril 1, 2011
OPT endsJuly 2011
October 12011(H-1Bstarts)CAP-GAP
PERIOD
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H-1B Professional Occupation Visa
• What Happens when you Reach 6-year
Cap? Is 6-years Really 6 Years?
– Recapture time spent abroad
– 2 ways to extend H-1B beyond 6 years• Green card application pending for more than 1 year
(one-year increments)
• I-140 approved and cannot file I-485 application
because of backlogs or “retrogression” (three-yearincrements)
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H-4 Spouses and Children
• No employment authorization• Can go to school
• If H-4 spouse wants to work, apply for own
visa
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Other Nonimmigrant Visa Options –Alternatives to H-1B Visas
• Free Trade Agreement Visas– H-1B1’s for Chile and Singapore
– TN NAFTA visas for Canadians and
Mexicans
– E-3 visas for Australian professionals
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Other Nonimmigrant Visa Options
• L-1A Multinational Executive/Manager Visa orL-1B Specialized Knowledge
• One-year abroad at parent, affiliate or subsidiary
as an executive, manager or specializedknowledge individual
• Must be coming to U.S. to fill executive,
managerial or specialized knowledge position
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L-1A/L-1B Visa
• L-1A – total of 7 years• L-1B – total of 5 years
• Spouses and children receive L-2 visa
• Spouses may apply for work permit –
unrestricted employment
• Fast-track green card (EB-1)
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Other Nonimmigrant Visa Options
• E-1/E-2 Treaty Trade and TreatyInvestor Visas
• Must have treaty between U.S. and Treaty
country• At least 50% of company must be owned by
Treaty country
• Foreign national must have nationality of Treaty Country
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E-1/E-2 Visa
• E-1 Treaty Trader– 50% trade must be between Treaty Country and U.S.
• E-2 Investor Visa
– Must make substantial investment• Can start-up company or buy company as E-1 or
E-2
• Category for E-2 employees– Must be executive, manager or essential employee
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E-1/E-2 Visa
• Spouses and children receive E-1/E-2• Spouses can apply for work permit –
unrestricted employment
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O-1 Alien of Extraordinary Ability• Sciences, education, athletics, business, arts, motion
pictures and television
• Major award• Lesser national or international prizes of awards
• Membership in associations requiring outstanding achievements
• Published materials or mainstream media written by others about thealien
• Participation, individually or on a panel, as the judge of the work of others
• Original contributions of major significance
• Authorship of books or articles
• Conference presentations
• Critical role for distinguished organizations or productions/events• High compensation/salary
• Commercial success
• Display of work at exhibitions, film festivals
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Other NIV Options
• R-1 Religious Worker• J-1 Visa
– Intern or Trainee
– Requires foreign degree and/or experience
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Immigrant Visa (“Green Card”) Options
• Green Card Lottery (www.travel.state.gov)
• 50,000 green cards• Registration period: October 5, 2010 to
November 3, 2010• No application fee
• Must be eligible to participate
• Based on country of birth (not citizenship)• Spouses can “cross-charge”
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Immigrant Visa (“Green Card”)Options
• Family Based Immigrant Visas– Immediate Relative: spouse, parent, minor
children of U.S. citizens
• Immediate benefits – work permit and traveldocument within 2-3 months
• 6-8 month processing
• Conditional 2 year green card (marriage cases)• Adult child must be 21 years old
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Family Based Immigrant Visas continued...
• Unmarried Adult Children of U.S. citizens (F1)
(6 year backlog)
• Spouse/Children of Legal Permanent Resident(LPR) (F2A) (6-12 month backlog)
• Unmarried adult children of LPR (F2B) (9 yearbacklog)
• Married adult children of U.S. citizens (F3) (9 yearbacklog)
• Brothers and sisters of U.S. citizens (F4) (11 yearbacklog)
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Employment Based Immigrant Visas
• EB-2 (Second Preference)– Advanced Degree Holders
• Masters or higher degree or foreign equivalent
• BA plus five years progressive experience
– Schedule A, Group II Alien of Exceptional Ability inArts, Sciences or Performing Arts
– National Interest Waiver (NIW)
• EB-3 (Third Preference)
– Professionals with BA degree or foreign equivalent– Skilled Workers with 2 years experience
– Other Workers
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Immigrant Visa (“Green Card”) Options
• EB-2 vs. EB-3 – why does it matter?• Retrogression
– EB-2 vs. EB-3 processing times
– Backlogged countries: China and India
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Process• Step 1: PERM Labor Certification process
• USCIS and DOL• Employer must conduct “good faith” recruitment efforts and
show there is no qualified U.S. worker to do the job
• Step 2: I-140 Immigrant visa petition
• Step 3: I-485 Application to Adjust Statusto Permanent Residence (AOS)
• Employment Authorization Document (EAD)
• Advance Parole travel document
» Both issued within 60-90 days of filing AOS
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•Priority Date (PD) = date of filing PERM application or filing of I-140Immigrant Visa Petition
•If retrogressed – can’t file I-485 AOS until PD is current
•Visa Bulletin (www.travel.state.gov)
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PERM Issues• Deciding between EB-2 and EB-3
– NOT based on alien’s educational background– Based on actual minimum requirements for job
• Tricks that don’t work:
– Tailoring minimum job requirements to yourexperience or education
– Foreign language requirements
• Generally cannot use employment experience
gained with sponsoring employer• Cannot use unauthorized employment
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Common Green Card Issues
• When to Start Green Card Process
• 4.5 years into H-1B• Make sure you like the employer and vice versa
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Common Green Card Issues
• What Happens to the Green Card if you
Change Employers?• Keep green card if:
• I-140 approved; and
• I-485 pending for more than 180 days (approx. 6
months); and
• job is same or similar position
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Immigrant Visa (“Green Card”) Options
• EB-4– Religious Worker visas
• EB-5
– Million Dollar Investor Green Card
– $500,000 in area of high unemployment
• Must create 10 jobs
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Immigrant Visa (“Green Card”) Options
• EB-5 Regional Programs– $500,000 in pre-approved program
– Pooled investment
– 3 step process• I-526 Immigrant Petition by Alien Entrepreneur
• I-485 - Adjustment of Status Application
– 2 year conditional green card
• I-829 – Removes conditional aspect of green card
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Q & A Please use your “Chat” function to ask questions
For follow-up questions:
Tien-Li Loke Walsh, Esq.
Wolfsdorf Immigration Law Group
1416 2nd Street
Santa Monica, CA 90401
For a copy of the PowerPoint or “Immigration Options” package, please contact:Daniel Manuel at [email protected]