After OPT and before the Green Card February 9, 2017

Suzanne B. Seltzer, Esq. Suzanne B. Seltzer is the principal of The Seltzer Firm, PLLC. She has served as the Chair of the American Immigration Lawyer's Association (AILA) USCIS Headquarters Committee, Chair of AILA’s Service Center Operations (SCOPS) Committee, and on many Annual Conference committees. Ms. Seltzer is a five time recipient of AILA’s Presidential Commendation in recognition of her service to the association. She was also repeatedly ranked among the nation’s top 20 practitioners in the area of Immigration Law by LawDragon. Ms. Seltzer is ranked in Chambers Global, Chambers USA, and included in Best Lawyers in America, New York Super Lawyers, and New York Magazine’s Best Lawyer’s in New York.   A magna cum laude graduate of the University of Pennsylvania, Ms. Seltzer received her law degree from the Georgetown University Law Center (cum laude).

Agenda “Visa” versus “Status” Maintaining Lawful Status H-1B Requirements H-1B Cap & Exemptions H-1B Alternatives Q&As

Immigrant vs. Nonimmigrant -Green Card/Permanent Residency Nonimmigrant Status (NIV) -H, F, J, O, etc. -Limited duration -Specific to employer/institution -Specific to purpose (work/study/tourism) -May need to establish “non-immigrant” intent

Maintaining Lawful Status ‘Visa’ vs ‘Status’ Visa: Permission to enter the U.S. in a specific status Status: Permission to remain in the U.S. for a fixed period Can have more than one visa: ie – B-1/2 and F-1, both valid at same time if enter on B-1/2 – cannot attend school Make sure admitted in correct classification Cannot have more than one status

Maintaining Lawful Status Permission to remain in the U.S. for a fixed period Denoted by ‘I-94’ ‘I-94’ – governs status (for Fs – with I-20; for Js – with DS-2019) Permissible activities governed by I-94/status Only one status at a time (i.e. - cannot have an F and an H)

I-94, Arrival / Departure Record (cont’d) Two ways status is conferred: Port of Entry – requires visa No longer issue paper I-94, must print out DOUBLE CHECK: https://i94.cbp.dhs.gov/I94/request.html Correct classification (F, H, J, O)? Correct validity period If error on I-94, must resolve ASAP: https://www.cbp.gov/contact/deferred- inspection/overview-deferred-inspection

I-94 Following Admission at Port of Entry

I-94 Following Admission at Port of Entry

I-94, Arrival / Departure Record May be issued via change or extension of status, will have I-94 attached ONLY eligible if Maintain Status Engage in approved activity (work/study) Current, valid I-94 Paystubs/ltr from employer or program Change/Extend Approved – same I-94# GRACE PERIOD – only if I-94 remains valid

I-94 on I-797 with Change or Ext of Status

I-94 on I-797 with Change or Ext of Status

Change/Extend NIV Status cont’d Depart the U.S., surrender I-94 & status To re-enter the U.S., will need to obtain visa in appropriate classification (H visa for H status, F visa for F status) Will be issued new I-94, with new number IMPORTANT to DOUBLE CHECK I-94 https://i94.cbp.dhs.gov/I94/request.html

Post OPT Options H-1B Visas H-1B: ‘specialty occupation’ Employer petition on your behalf Legal/filing fees to be paid by employer Position that normally requires at least a bachelors degree in a related field Employer must agree to pay ‘prevailing wage’

H-1B Visas Part-time or full-time Length of approval Extensions Portability Maximum in H status 6 years total CAP on number of H-1Bs issued each year

H-1B Issues for Start-Ups Must have employer tax I.D. number Company owned by H-1B employee? Must be W-2 employee Separate entity from owner/employee Company right of control over employee Is there a Board of Directors? Who has ability to hire/fire

H-1B Issues for Start-Ups (cont’d) Company must prove Financial ability to pay salary Sufficient work in specialty occupation Place of business Business plan/financial projections Prevailing Wage CEO vs. function-descriptive position

H-1B Quota What is it and what does it mean? 20,000 for US awarded advanced degrees 65,000 H-1Bs for everyone else How are they allocated? Based on fiscal year October 1 – September 30 Apply 6 months in advance, April 1

H-1B Quota USCIS accepts H-1Bs filed first 5 days April Random Lottery (cont’d) USCIS accepts H-1Bs filed first 5 days April FY2016 – 233,000 filings FY2015 – 172,500 filings FY2014 – 124,000 filings Random Lottery 20,000 master’s cap selected first Not selected for master’s cap, drop down and incl. with 65,000 for everyone else

H-1B Quota Selected for adjudication under cap (cont’d) Selected for adjudication under cap Does not guarantee approval Earliest start date - October 1 Not selected under the cap Petition will be returned Usually receive in May/June

Avoiding H-1B Quota Exemption based on employer Universities Non-profits affiliated with universities Non-profit research organizations Government research organizations Includes state & local

Avoiding H-1B Quota Exemption based on employee (cont’d) Exemption based on employee Previously counted (in last 6 years) Singapore/Chile Concurrent employment

Travel and Status Issues for H-1B Approvals Change of status vs. consular visa issuance Visa – Permission to re-enter the U.S. after a trip abroad (stamp in passport) Need visa in specific classification to re-enter in that status Status – Permission to remain in the U.S. for a fixed period (check ‘I-94’ and I-20 or DS-2019) Only hold status in one classification at a time (i.e. – cannot have an F and an H)

Travel and Status Issues (cont’d) Travel after April 1 Depart US, I-94 is surrendered F visa to come back to use OPT? What about H? What happens to petition? Maintaining status until October 1 “Cap gap” relief OPT must be valid at time H-1B petition is filed Extends only until September 30 PROBLEM: H-1B adjudication pending on Oct 1

H-1B Alternatives: Ls L-1: ‘intracompany transfer’ Must have worked for petitioning company overseas for at least one year in the last three years For execs, managers, or special knowledge Spouse eligible for employment authorization Maximum 7 years in L status NOTE: H & L combined – max 7 years

Alternatives: Es Must be national of treaty country http://www.travel.state.gov/visa Employing company must be at least 50% owned and controlled by treaty country nationals No quota and can be extended indefinitely Spouse eligible for employment authorization

Alternatives: TN Citizens of Canada and Mexico Must have employer and job offer Profession must be on the NAFTA list Applicant must have qualifications as indicated on NAFTA list Must evidence non-immigrant intent

Alternatives I visa – journalists O visa Artists with distinction in field; or Scientists with extraordinary ability E-3 – Australians only, similar to H-1B Dependent on spouse visa J, L, E – spouse can apply for EAD New rule permitting certain H-4s to apply for EAD

For Further Information Suzanne B. Seltzer, Esq. The Seltzer Firm, PLLC E-mail: suzanne.seltzer@theseltzerfirm.com Telephone: 212-796-8844 Address: 1115 Broadway, 10th Fl, NY, NY 10010

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