©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. H-1B and U.S. Permanent Resident Petitions: What You Need To Know Lori Chesser Davis Brown Law Firm

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Disclaimer The following information was prepared for a presentation at Iowa State University on February 16, It is an overview only and should not be considered legal advice on any particular situation. We urge any person reading this information to consult with an competent immigration attorney to answer specific legal questions.

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. The Immigration Process Overview Student status, including CPT & OPT H-1B temporary work status Permanent Residence (“green card”)

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. H-1B Process File H-1B Petition with USCIS “Premium Processing” availableWhen filing is possible depends on the H-1B “cap” File Labor Condition Application (“LCA”) electronically (7 days processing time) Employer must offer the higher of the “prevailing wage” or “actual wage” Notice posting and file retention on employer site Job offer that qualifies for H-1B (“specialty occupation”) “Normal” requirements for the jobYour qualifications

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. H-1B “Cap” The Cap A limited number of H-1Bs each fiscal year Lottery conducted to determine who receives them Timing Applications filed the first 5 business days in April H-1B cannot start until October 1 Other Must be in status on October 1 for change of status OPT automatically extended (“cap gap”)

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Cap Exemptions Working for An institution of higher education (college or U) A non-profit affiliate of a college or U Working at An institution of higher education (college or U) – job physically located and aligned with mission Concurrent Filing for a cap-subject employer while working in a cap-exempt position at the same time

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. More Cap Exemptions Already counted Filed and approved cap-subject H-1B extending stay or changing employers Certain doctors Physician that obtained a J-1 waiver under the Conrad 30 program NOTE If working in a cap-exempt position, no change of employer to cap-subject position unless through the lottery

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Alternatives to H-1B School STEM OPT 17–month extension Another degree program/CPT Other categories J-1 trainingO-1 extraordinary ability Special TN (Canada or Mexico) E-3 Australia H-1B1 Chile & Singapore E for certain countries L-1 if work outside the U.S. for one full year for an international company

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Skipping H-1B? For a person who can use STEM OPT and whose immigration is not subject to a waiting line, 29 months should be sufficient for green card processing without utilizing H-1B. Restrictions on international travel and other concerns could make this strategy inadvisable.

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Visa v. Status “Ticket” to enter the U.S. Granted only at U.S. consulate abroad Visa Controls stay duration and activities in while here I-94 is controlling document Status

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. International Travel During H-1B application Not recommended Not possible to re- enter in F-1 during cap gap and resume employment After H-1B granted New visa is needed Exception for entry after <30 days in Canada or Mexico Other considerations Administrative processing Dual intent

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. The “Green Card” Process “PERM” or labor certification (DOL)I-140 (USCIS) I-485 or “adjustment of status” (USCIS) OR consular processing (DOS)

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. PERM Determine job requirements & wages Advertise and post internal notices Interview applicants

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. PERM cont’d If no qualified applicants, file electronically WAIT Respond to audit if received (WAIT more)

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. I-140 Employer Offering the job certified in the PERM Has the ability to pay the wage offered Beneficiary Is qualified for the position certified on the date PERM was filed Lists spouse and children on form Category Depends on requirements listed in the PERM EB2 = Master’s or bachelor’s + 5 years experience

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Waiting line Employment- Based All Chargeability Areas Except Those Listed CHINA - mainland born INDIAMEXICOPHILIPPINES 1stCCCCC 2ndC15MAR1001SEP05CC 3rd01JAN1401SEP1122DEC0301JAN14

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Keeping H-1B status during the waiting line One year extensions (unless PERM denied) File PERM of non- PERM I days in advance of H-1B end date Three year extensions until place in the waiting line is reached. I-140 approved and waiting line applies

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Alternative to PERM EB1 Extraordinary ability Outstanding professor or researcher EB2 National Interest waiver Schedule A Family- based/other Marriage to a US Citizen/Sponsorship by other family member or VAWA Asylum application, TPS or other relief for special situations

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Family-based waiting lines Family- Sponsored All Chargeability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES F122JUL07 01OCT9408JAN05 F2A08MAY13 22APR1308MAY13 F2B22MAY08 15DEC94 22FEB04 F301JAN04 15JAN9415JUL93 F415APR02 22APR9708AUG91

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Executive Action (not yet in effect) DACA Entered before age 16 Here since 1/1/2010 & not in status DAPA Here since 1/1/2010 & not in status Had on 11/20/2014 a USC or LPR child Other Options for entrepreneurs, researchers & founders H-4 work authorization and other relief for those in the waiting line

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Criminal Convictions If you are arrested it is critical that you or your criminal lawyer (or whoever is helping you) consult with immigration counsel. Certain criminal convictions can prevent your immigration or result in your deportation. Drug crimes are particularly serious.

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Tips for International Students Applications Do not waste your time applying for jobs that state no H-1B sponsorship is available. Employers cannot ask about how long you will be able to work when interviewing you. Attorneys Involve an immigration attorney early in the process. Do not agree to an employer filing on their own without an attorney. The employer must pay certain legal fees according to regulations. Deadlines Track your own deadlines and make sure that you are taking action so that no deadline is missed. Attorneys and employers try to keep track also, but it is your immigration status!

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Questions?

©2015 DAVIS BROWN KOEHN SHORS & ROBERTS P.C. Thank you Lori Chesser Davis Brown Law Firm