Business Immigration and the New Administration Common U.S. business visas, the green card through employment, Compliance, and global migration issues Caroline ostrom Ostrom & Peterson, lLC June 14, 2017

Presentation Overview Work authorization with in U.S. The H-1B Visa The TN Visa The L Visa The F Visa – CPT, OPT The EAD Audit/Compliance The Green Card Process through Employment PERM Priority Dates and the Visa Bulletin EB-2/EB-3 DOL Audit/Compliance Global Migration Issues

H-1B Visa Employer-sponsored Specialty occupation – B.S. or B.A. Three years, with a three year extension Can extend indefinitely with green card pending H-1B Cap H-1B Transfers

H-1B Filing Fees Fees paid by the employer for an H-1B filing: 2. $1500 Training (of U.S. workers) Fee ($750 if less than 25 employees); 3. $500 Fraud Fee Extensions – Lower Fees Premium Processing - $1225 – currently on hold for H-1B petitions through at least 10/03/2017.

Regulatory Requirements for the H-1B Pay the required wage Offer same benefits and working conditions No strike, work stoppage, or lock out in the same job at the same place of employment Notice of Posting –at work site in two conspicuous places for 10 business days Public Access File – to include a signed version of the Notice of Posting, among other documents, and be available with one business day of the Labor Condition Application filing.

Regulatory Requirements for the H-1B, cont. An amendment may be necessary if there is a change in the position – title, duties, location, or wage Unpaid leaves – voluntary are permitted, an unpaid bench is not Withdrawal of the H-1B with termination Payment of airfare for a trip home if the H-1B is terminated prior to its end date

The January 2010 USCIS Neufeld Memo Whether a company has enough right to control the employee to meet the definition of “employer” for an H-1B Gives as an example the “typical” IT staffing position, and states that the company did not have enough control to file an H-1B End-Client Letter

H-4 Visa For spouses and children (unmarried and under 21) of H-1B visa holders Certain H-4 spouses can apply for work authorization, but not all The ability of H-4s to obtain EADs could be rescinded under administrative rule-making procedures.

TN Visa For Canadians and Mexicans under NAFTA (NAFTA undergoing renegotiation) Employer specific Three year duration, unlimited extensions (but to be for temporary employment) For certain employment categories: 1. Computer Systems Analyst 2. Management Consultant

TN Visa, continued Can apply at the border ($56) or with USCIS ($1685), if Canadian Need to go through the consulate ($160), or though USCIS ($1685), if Mexican Spouse or unmarried children under 21 – TD visa; not work authorized

L Visa Intra-company transferees International company with offices outside and inside U.S. L-1A – managers and executives L-1B – specialized knowledge employees L-2 - spouse or unmarried child under 21 of L-1 visa holder; eligible for work authorization

F-1 Visa Student visa – not work authorized on its own F-2 – spouse or child under 21, not work authorized CPT – Curriculum Practical Training OPT – Optional Practical Training - 12 months STEM OPT– Science, Technology, Engineering, & Math E-verify 24 month extension of OPT (36 months total) The need for an employer training plan and attestations with Form I-983: https://studyinthestates.dhs.gov/employers-and-the-form-i-983

EAD Employment Authorization Document Not employer specific* F-1 – OPT H-4 EAD L-2 Family-based green card application pending Employment-based green card application pending* *May need to transfer underlying green card application to new employer

Green Card Processing through Employment Three step process 1. PERM through the Department of Labor 2. I-140 Petition with USCIS 3. I-485 Application for Permanent Residence with USCIS

Cost of the Green Card through Employment Employer required to pay all costs incurred for the first step – PERM. The PERM step includes the cost of advertising the position for two Sundays in the paper There are also attorney fees

PERM with the Department of Labor Prior to filing the PERM application: 1. Prevailing Wage from the DOL 2. Required advertising 3. Notice of Filing at the work site 4. Notice to qualified workers if there has been a layoff within the prior 6 months 5. Recruitment Report 6. Audits

I-140 Petition Filed with USCIS after the PERM application is approved USCIS evaluates the position, whether the employee meets the qualifications, and if the employer meets the ability to pay. Once the I-140 is approved, wait for an immigrant visa to be available

Priority Dates and the Visa Bulletin The I-140 Petition is given a “priority date” The “priority date” is the date the PERM application was filed with the DOL The employee waits for the priority date in his or her employment category for his or her country to be “current” The Department of State issues a monthly Visa Bulletin, with the current Priority Dates for the month

June 2017 Visa Bulletin Excerpt EB All other China India Mexico Philippines 1st C 01JAN12 2nd 01MAR13 01JUL08 3rd 15APR17 01OCT14 15MAY05 01MAY13

EB-2 v. EB-3 EB-3 – B.S. and several years experience EB-2 – B.S. and five years progressive experience, or an M.S. The minimum requirements of the job controls, not the qualifications of the employee Experience with the employer typically cannot be used to satisfy the requirements

I-485 Application for Permanent Residence Can file for this when priority date is current Final stage in the process Look at the employee – criminal history, immigration history, etc. Qualify for EAD New Form I-485 Supplement J

Global Migration Issues Renegotiating NAFTA and the TN Visa NAFTA a trade agreement, rather than a treaty; President has more power to withdraw – 6 months notice to parties Reciprocity New Visa Questionnaire The Travel Ban – Executive Order dated March 6, 2017 Suspends travel for individuals from 6 predominately Muslim countries (this provision blocked by the federal courts, likely headed to the Supreme Court for review)

Contact Information Thank you for your attention. Caroline Ostrom costrom@opimmigration.com 612-822-1901 Disclaimer: The information provided in this presentation is for educational purposes only and is not legal advice.