Visas After Graduation - Cornell Institute for Public Affairs

Report
Immigration
Visas After Graduation
Cornell University
Johnson Career Counselors Meeting
July 27, 2011
Miller Mayer, LLP
202 E. State Street
Ithaca, NY 14850
(607) 273-4200
www.millermayer.com
H-1B Nonimmigrant Visas
(NIV)
 Employer sponsored for up to 6 years in a
“specialty occupation”
 3 Requirements:
• Job must require a Bachelor’s degree or
higher in specific field
• Beneficiary must have at least the relevant
Bachelor’s degree or equivalent
• Employer must pay the prevailing wage
Procedure

File Labor Condition Application (LCA) -Employer must pay prevailing wage; no
adverse work conditions for US workers

File H-1B petition (Form I-129)

Overall processing time frame:
• 3-4 months normally
• Premium processing possibility: 2 weeks
Advantages of H-1B:
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Duration:
• 6 year maximum
• 1 year stay outside U.S. refreshes 6 yrs
• additional H extensions if green card started by
end of 5th year
Time to work toward green card
No advertising or test of the U.S. labor market
– but new large employer restrictions
-- and new ITAR attestations
H-1B portability when change employers
Disadvantages of H-1B:
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Tied to one employer
Not flexible like F-1 Optional Practical Training
Paperwork, cost and delay
October 1st start date + cap race
Fees:
$825 - $3,550 filing fee
$ 2,500 approx. legal fee
What is the H-1B “cap”?
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65,000 per fiscal year
Of 65,000, 6,800 carved out for Chile
and Singapore
Separate 20,000 for graduates with
U.S. master’s degree or higher
Race for H cap visas
 Quota year: October 1 to September 30
 Apply Earliest: April 1 (6 months before)
 Past years’ H-1B quota filled:
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August 10, 2005 (FY 2006)
May 26, 2006 (FY 2007)
April 3, 2007 (FY 2008)
April 7, 2008 (FY 2009)
December 21, 2009 (FY 2010)
January 26, 2011 (FY 2011)
 If needed, USCIS conducts “lottery” to select cases to be
considered for H-1B approval
20,000 U.S. Master’s
Exemption

Defining receipt of degree
“complete requirements for degree”
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Accredited U.S. institutions
All advanced degrees included
Master’s cases considered under both
caps
H-1B Cap Exemptions
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College/university employees
Related or affiliated nonprofit entities
Nonprofit research organizations
Government research organizations
Prior cap H-1B holders
J-1 shortage area waivered doctors
Moving from ‘Exempt’ to ‘Cap
Subject’ Employer
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Makes you subject to the cap
Concurrent employment: consider
part-time with each job
Pre-October 1 portability
Changing jobs between April 1 and
October 1
Career options and alternatives
for MPAs
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Government jobs
Entrepreneurial jobs
Small town and academic jobs
Overseas jobs
Lower expectations of employment in
the United States
MPA prep for H-1B competition
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Internships, get to know employers
early
Land jobs early
File by April 1st, in Masters or
Bachelors cap
‘completed all degree requirements’
Obtain Registrar’s letter/degree early
Cap H alternatives: non-cap H
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Not-for-profit, university affiliated
University
Government research
Not-for-profit research
File any time during year
No quota and lower government
filing fees
Cap H alternatives:
Accelerate Green Card filing?
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Enter Diversity Visa lottery (55,000
randomly selected annually)
Make concurrent I-140 and I-485 filing, if
priority date current
Options for concurrent filing: NIW
(national interest), EB-1-1 (extraordinary
ability), EB-1-2 (outstanding professor or
researcher)
Overseas work option: EB-1-3
(multinational manager)
H-1B Conclusion
H-1B visas are the workhorse of the
temporary worker visa categories, but
are complex and must be done correctly
to avoid immigration or Labor
Department violations. Limited supply
makes careful planning essential.
Other NIVs

E-3: only for Australians
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2 year renewable, indefinitely
10,500 annual quota
LCA only, consular filing
Spouse and child work permits
L-1: multinational transferee
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12 months foreign employment
Executive, manager, specialized knowledge
Lower cost, green card, harsh adjudications
Spouse work permits
Treaty Nations
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Mexican/ Canadian (NAFTA) citizens
Unlimited extensions
Residence outside U.S.
Up to 3 years in job offer in listed occupation
Bachelor’s degree/license in that field
See chapter 16 of NAFTA and 8 C.F.R. §
216.4
Common TN Occupations
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Accountant
Architect
College/university
professor
Computer systems
analyst
Engineer
Graphic designer
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Management
consultant
Occupational
therapist
Registered nurse
Scientific
technician
Social worker
Urban planner
TN Procedure for Canadians

Bring to U.S. port of entry:
• Proof of citizenship
• Statement from employer stating the
qualifications of the position
• Evidence of applicant’s qualifications for that
position
• Filing fee
Approved applicants can leave and re-enter
the U.S. with their endorsed multiple entry I94 cards
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How Can I Become a US Permanent
Resident?
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Family-based
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Employment-based
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Diversity Lottery
Family Relationship Basis
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Immediate Relatives –children, spouses, or parents of
US citizens (no limit per year)
Unmarried sons & daughters of US citizens (23,400
visas per year)
Spouses/minor children & unmarried sons and
daughters of US permanent residents (114,200 visas per
year)
Married sons and daughters of US citizens (23,400 visas
per year)
Brothers and sisters of US citizens (65,000 visas per
year)
US citizen son or daughter sponsor must be age 21 or
over
Employment Basis
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Priority Workers (EB-1)
40,000 visas per year
Extraordinary ability (self-sponsor)
Outstanding professors & researchers
(tenure-track position)
Business executives & managers (no
labor certification required)
Advanced degree holders (EB-2)
40,000 visas per year
Professionals with advanced degrees
or exceptional ability in sciences, arts
& business (labor certification
required)
National Interest Waiver of labor
certification requirement
Skilled & unskilled workers (EB-3)
40,000 visas per year
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Skilled workers in short supply
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Professionals with bachelor’s degree
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Unskilled workers in short supply
(all require labor certification)
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Special Immigrants (EB-4)
10,000 visas per year
Religious workers; certain US govt.
employees; Panama Canal
employees; plus certain dependent
juveniles

Investors (EB-5)
10,000 visas per year
Must invest between $500,000 and
$1 million
Must create at least 10 full-time
jobs

Most Common Way to Get an
Employment-Based Green Card
(for EB-2, EB-3)
PERM
(DOL)
I-140
Immigrant
Visa Petition
(USCIS)
Adjustment
of Status
AOS
(USCIS)
Consular
Processing
Overseas
(DOS)
PERM Labor Certification

A certification from the Department of Labor that a
particular position at a particular company is “open”
because no qualified U.S. workers are available

Employer must complete 5 kinds of recruitment,
show ability to pay wage and prepare audit file

Electronic filing with US DOL
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Upon certification, must file I-140 within 180 days
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Final step: may have to wait for some EB-2, EB-3s
I-140 Green Card Petitions
(without PERM Labor Certification)

Three types of EB-1 priority workers:
1. EB-1-1 Extraordinary ability aliens
2. EB-1-2 Outstanding professors and
researchers
3. EB-1-3 Multinational executives and
managers
 EB-2 (Advanced degrees, Exceptional
ability) with “national interest” waiver
Green Card Processing Backlogs
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“Priority date” is “current”
EB-3 category and India and China in
EB-2 category:
It could take five years or longer to get
an immigrant visa, even if you start
today!
See our website for more information
Contact Congress about visa delay
Sources of Information on
Immigration Law
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Citizenship & Immigration Services
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Statutes & regulations
Forms
Procedures and instructions
Contact information
Processing times
Sources of Information on
Immigration Law
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U.S. Department of State
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Links to embassies & consulates worldwide
Application procedures and consulate closings
Wardens messages and travel advisories
Public announcements
Derivative citizenship and renunciation
Visa Bulletin regarding priority dates
Issues of Relevance for CU MPA
students:
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Past student experiences in applying for
OPT, H, and PR
Loopholes to be aware of
H process for the employer vs. foreign
student
Employer reluctance in hiring foreign
students
Technical degrees an advantage?
F-1 and J-1 work authorization
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Curricular Practical Training (CPT) –
 Internship or work experience while studying for a degree
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OPT/Post- or Pre-Degree
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Permitted to work in the US for 1 year under F-1 visa
FICA exempt
SEVIS employer registration
Unemployment > 90 days is a problem
Volunteering can help
Travel can be difficult, extend for 17 months, total 29 months
E-verified employer
On campus
Cap H alternatives: OPT and
more OPT
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12 months F, 18 and 36 months J
STEM EVerify 17 month extensions
(29 months minimum and 2 tries at
H cap race)
EVerify’s fate and lobbying to expand
STEM exception?
OPT Timeline & Cap Gap Extension
Apply
2/27/11
60-day grace period
Program end
date
5/27/11
7/26/11
Apply for H
4/1/2012
EAD expires
7/23/2012
You choose your
OPT start date
Example: 7/24/11
Apply up to 120 days
before your chosen start
date -- 90 days before
program end date and up
to 60 days after.
12 months OPT plus cap
gap extension
10/1/2012
Parting Thoughts
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Realistic assessment is important
Planning ahead is key
Get to know employers soon
Think of alternatives and creative
employment options
Need help with immigration
matters?

How to choose an immigration attorney

Interested in an immigration consultation?

Sign up for a free monthly immigration
newsletter

Contact:
Miller Mayer, LLP
202 E. State Street, Suite 700
Ithaca, NY 14850
(607) 273-4200
[email protected]
Questions?

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