International Students: Employment & Immigration

International Students: Employment & Immigration
Gee & Zhang, LLP International Students: Employment & Immigration Prepared by: Andrew H. Gee ‘97 with Tania Glowinski Gonzalez ‘92

International Students: Employment & Immigration
Immigration Basics Key Categories H-1B In’s & Out’s Alternative Non-Immigrant (Temporary) Categories Immigrant Category Review 10/04/2017 Gee & Zhang , LLP

Immigration Basics 10/04/2017 Gee & Zhang , LLP

Immigration Basics US Immigration is essentially split into two categories: Immigrant (Permanent Residence) and Non-Immigration (Letter Categories / Temporary) General presumption that all foreign nationals want to come to work and stay Must qualify for an individual category, not a points system 10/04/2017 Gee & Zhang , LLP

Non-Immigrant Documents
Petition & Approval Sponsor applies for position & professional qualification with USCIS, which issues approval letter May change or extend status for those already in US Visa Stamp in passport, issued after individual security check and personal interview Status / I-94 CBP officer at port of entry grants foreign nationals admission: class of admission & validity date 10/04/2017 Gee & Zhang , LLP

Petition Approval Letter
10/04/2017 Gee & Zhang , LLP

Visa 10/04/2017 Gee & Zhang , LLP

Admission (I-94) Number https://i94.cbp.dhs.gov/I94/request.html
10/04/2017 Gee & Zhang , LLP

Transition Keys 10/04/2017 Gee & Zhang , LLP

H1B to Permanent Resident
Transition Keys F-1 to H1B Practical Training Cap Gap H1B to Permanent Resident Dual Intent 10/04/2017 Gee & Zhang , LLP

CPT – Curricular Practical Training
Employment prior to graduation Once authorized for CPT by the Designated School Official, students are able to work in an integrated vocational program for up to 12 months Students who have received one year or more of full time CPT are ineligible for post completion training and OPT 10/04/2017 Gee & Zhang , LLP

OPT – Optional Practical Training
Employment post graduation Students may apply for OPT with the U.S. Citizenship & Immigration Services (USCIS) for training related to your area of study Students are generally limited to a total of 12 months of OPT, and this must be completed within 14 months of completion of study 10/04/2017 Gee & Zhang , LLP

STEM OPT Extensions Students with a degree in science, technology, engineering, or mathematics (STEM) are eligible for a further OPT extension The period of OPT is extended from 12 to 29 months for qualified F-1 non-immigrant who are employed by businesses enrolled in the E-Verify program 10/04/2017 Gee & Zhang , LLP

Cap Gap – What is It? A Cap Gap situation arises generally where a student’s OPT authorization expires prior to October 1st Normally this prevents students from filing for a change of status from F-1 to H-1B in the US So otherwise it would require students to depart and apply for an H-1B visa at a U.S. consulate abroad, or change to an interim category (visitor) and change again to H-1B. 10/04/2017 Gee & Zhang , LLP

Cap Gap - Benefit Cap Gap provisions automatically extend the student’s F-1 status and OPT authorization until the October 1 effective date for foreign nationals who timely filed for an H-1B petition OPT extension only if valid OPT at time of filing This allows change of status in the US from F-1 to H-1B, without first having to get visa stamp A trip to a US consulate would still be required for international travel after October 1st 10/04/2017 Gee & Zhang , LLP

H-1B Dual Intent One of the great advantages of the H-1B is the benefit of Dual Intent, which allows the foreign national to concurrently maintain non- immigrant status while at the same time applying for permanent immigration to the U.S. This is generally not allowed, as immigrant intent precludes a foreign national’s qualification for many non-immigrant classifications, such as B Visitors and F Students 10/04/2017 Gee & Zhang , LLP

H-1B In’s and Out’s 10/04/2017 Gee & Zhang , LLP

H-1B The H-1B is a temporary non-immigrant status that permits a qualified foreign national to work in the U.S. in a specialty occupation that requires the services of a professional ‘Professional’ is essentially defined as a position minimally requiring a Bachelor’s degree The position must require a degree The foreign national must have a degree or equivalent in a relevant field 10/04/2017 Gee & Zhang , LLP

H-1B Employer Specific & Position Specific
The H-1B approval is limited to the job that the sponsor company describes in the application The H-1B will have to obtain an additional, concurrent approval to work second or side jobs A new approval is required when changing positions, although some leeway given to limited progression in the same position (We suggest quick attorney review, as certain responsibilities mandate amendments) 10/04/2017 Gee & Zhang , LLP

H-1B Timing The fiscal year begins on the 1st of October
This is the first day foreign national gaining their H-1B may work for the sponsor company Applications may be received up to 6 months in advance of the effective date A lottery is typically held in April for all applications received during the first 5 business days of the month 10/04/2017 Gee & Zhang , LLP

H-1B Quotas The H-1B is subject to an annual limit of 65,000 for foreign nationals with Bachelor’s degrees, and an additional 20,000 for those with Master’s or higher degrees from U.S. universities By treaty 6,800 numbers are held for Singapore and Chile, and the unused numbers should be added back the following year Approximately 199,000 applications were received FY 2017 10/04/2017 Gee & Zhang , LLP

# Applications Received
H-1B Quotas Fiscal Year Standard Quota Masters Cap # Applications Received Date closed 2014 65,000 20,000 124,000 April 5, 2013 2015 172,500 April 7, 2014 2016 233,000 April 7, 2015 2017 236,000 April 7, 2016 2018 199,000 April 7, 2017 10/04/2017 Gee & Zhang , LLP

H-1B Quota Exemption Quota exemptions are available to universities or certain research organizations Time spent in H-1B status with a cap-exempt company still counts towards the 6 year limit An H-1B with a cap-exempt sponsor may also work for a cap-subject sponsor, even when quota numbers are unavailable Individuals must have a quota number to port (switch) to a cap-subject sponsor 10/04/2017 Gee & Zhang , LLP

H-1B 6 Year Limit H-1B status is granted generally for 3 years and eligible for an additional extension of 3 years for a total of 6 years Leaving the US stops the 6 year clock allowing: time recapture quota avoidance in the future (remaining time only) If the foreign national leaves the US for one year, he or she is eligible for another 6 years of H-1B status by obtaining a new quota number 10/04/2017 Gee & Zhang , LLP

H-1B 6 Year Limit Extensions
H-1B status may be extended for 1 year periods beyond the 6 year limit if a Labor Certification has been filed and has been pending for 1 year Furthermore, 3 year extensions are available if the foreign national is a beneficiary of an approved I-140, but visa numbers are not available due to per country limitations 10/04/2017 Gee & Zhang , LLP

H-1B Grace Periods H-1B holder may be granted a 60 day grace period upon cessation of the employment Once per approval Doesn’t extend past the authorized validity period Work is not authorized during the grace period, but may work upon timely filed H1B application 10 days before and after the work period may be issued to accommodate transition Work is not authorized during this time 10/04/2017 Gee & Zhang , LLP

H-1B Portability Portability provisions allow H-1B beneficiaries to port (switch) to a new employer Employment can begin immediately upon the filing of a new H-1B petition, for those in proper H-1B status The new petition must be “non-frivolous” and filed before the expiration of a current H-1B The total H-1B time remains 6 years of aggregate work with all employers 10/04/2017 Gee & Zhang , LLP

H-4 Family H-1B’s spouse and children are eligible for H-4 status while their H-1B is maintained Time in H-4 status doesn’t count against a spouse’s own H-1B eligibility H-4’s are eligible to study Must maintain individual status and documents, not automatic based on the H-1B 10/04/2017 Gee & Zhang , LLP

H-4 Spouse Employment H-4’s are recently eligible to apply for work authorization, in certain cases The Principal H-1B spouse must: be the beneficiary of an approved I-140 Immigrant Petition (PR Classification), or have been granted H-1B status under sections 106(a) and (b) of AC21 Abused spouse eligible for EAD 10/04/2017 Gee & Zhang , LLP

H-1B Fees Government Filing Fees:
25 or more employees $2,460 25 or fewer employees $1,710 I-539 Dependents $370 Premium (optional, 15 day) Processing – $1,225 Additionally $4,000 if ≥ 50 US employees & ≥ 50% US employees are H-1B, L-1A, or L-1B Legal fees 10/04/2017 Gee & Zhang , LLP

H-1B Labor Condition Application (LCA)
The sponsor company is required to pay the H- 1B the prevailing wage and give notice to its employees that a foreign national is being hired The company must complete the LCA notice, post this LCA information, and provide a copy to the H-1B Often confused with the Labor Certification recruitment process, which employers are generally reluctant to deal with 10/04/2017 Gee & Zhang , LLP

H-1B Visa Travel outside the US requires a visa stamp with the properly matching category to return May have multiple valid visas at a time Be sure to use the correct one Must have the H-1B approval to get an H-1B visa Apply at the home or permitted consulate Plan in advance as seasonal changes may affect the timing of scheduling and processing, taking about a week or two 10/04/2017 Gee & Zhang , LLP

A B C D E F G H I J K L M N O P Q R S T U V VW NAFTA
Alternative Non-Immigrant (Temporary) Categories A B C D E F G H I J K L M N O P Q R S T U V VW NAFTA 10/04/2017 Gee & Zhang , LLP

Alternative Non-Immigrant (Temporary) Categories
H-1B1 Singapore & Chile 1 year allocation E-3 Australians (Spouses work eligible) E-1 / E-2 Treaty Trader / Treaty Investor L-1 Intracompany Transferee O-1 (Outstanding) Extraordinary Ability B-1/2 Visitor (Business/Pleasure) & Visa Waiver J-1 Cultural Exchange Trainee H-3 Company sponsored Training Program NAFTA – Canada & Mexico 10/04/2017 Gee & Zhang , LLP

H1B1 – Singapore & Chile Substantially equivalent to H1B
LCA; Degree; Job Offer; Fees May apply directly at consulate One year validity at a time Requires showing of foreign residence applicant does not intend to abandon – no Dual Intent Chile 1,400 Singapore 5,400 10/04/2017 Gee & Zhang , LLP

E-3 – Australia Generally similar to H1B No Training and Fraud fees
LCA; Degree; Job Offer No Training and Fraud fees May apply directly at consulate Requires showing of intent to depart Annual limit 10,500 Spouse eligible to apply for work authorization 10/04/2017 Gee & Zhang , LLP

E-1 Treaty Trader E-2 Treaty Investor
Only nationals of countries US has a treaty with E enterprise must be ≥ 50%-owned by nationals of the country (allows self-sponsorship) E-1: based on enterprise doing ≥50% of international trade between US & treaty country E-2: substantial investment required: DOS uses proportionality test. Practitioners typically recommend at least $50,000 10/04/2017 Gee & Zhang , LLP

E-1 Treaty Trader E-2 Treaty Investor
Two types of E classifications: (1) Trader or Investor (controlling interest in enterprise) and (2) Key Employee Trader E-1: carries substantial trade between US and treaty country Investor E-2: directs/develops the business Key E Employee: same nationality as treaty employer; Executive/Supervisor or Essential Employee 10/04/2017 Gee & Zhang , LLP

L-1 Intracompany Transferee
For multinational companies seeking to transfer certain employees to the US from abroad Companies must be related: Parent, Branch, Subsidiary, Affiliate Must be viable and be of sufficient size to support the need for the position L-1B 5 year limit; L-1A 7 year limit Spouse eligible for work authorization 10/04/2017 Gee & Zhang , LLP

L-1 Intracompany Transferee
Employee must have worked with a related company for at least 1 continuous year within the past 3 years in a position that is Specialized Knowledge (L-1B): advanced expertise in the organization’s processes and procedures Managerial (L-1A): Manages the organization or a department, controlling the work of professionals or manages an essential function Executive (L-1A): Directs the organization or a major component with wide latitude in decision-making 10/04/2017 Gee & Zhang , LLP

O-1 (Outstanding) Extraordinary Ability
Alien with extraordinary ability in the sciences, arts, education, business or athletics, or movies or television stars (and certain assistants) Requires a foreign residence to return to Qualifies with major award (Nobel Prize) Alternately a combination of USCIS criteria: national awards, published works, membership requiring outstanding achievement, commands high salary compared to others in field, & similar. 10/04/2017 Gee & Zhang , LLP

B-1 / B-2 B-1 business or B-2 pleasure
may not be engaged in employment or perform skilled or unskilled labor in the US required to have a foreign residence enter for specifically limited duration purpose limited to legitimate activities relating to business Commercial deals; negotiate contracts; consultations; litigation; conferences; meetings 10/04/2017 Gee & Zhang , LLP

Visa Waiver Enables nationals of certain countries to travel to the US for the same business or tourism purposes of a B-1 or B-2 without obtaining a visa for stays of 90 days or less Requires application for authorization though Electronic System for Travel Authorization (ESTA) Currently 38 countries participating 10/04/2017 Gee & Zhang , LLP

Visa Waiver Switzerland Taiwan Andorra Denmark Iceland Luxembourg
San Marino Switzerland Australia Estonia Ireland Malta Singapore Taiwan Austria Finland Italy Monaco Slovakia United Kingdom Belgium France Japan the Netherlands Slovenia Brunei Germany Latvia New Zealand South Korea Chile Greece Liechtenstein Norway Spain Czech Republic Hungary Lithuania Portugal Sweden 10/04/2017 Gee & Zhang , LLP

J-1 Cultural Exchange Program
Covers many different subcategories: Professor or research scholar; short-term scholar; trainee or intern; nonacademic specialist; government visitor; & others. Each has own requirements. Potential obligation to return to home country for 2-year residence requirement if either: Participation financed by agency of US government or government of nationality/last residence field on the DOS Exchange Visitor Skills List various possible waivers 10/04/2017 Gee & Zhang , LLP

H-3 Company sponsored Training Program
Must be substantially for training; not productive employment Requires a detailed Training Plan Limited to 2 years Purpose should be for trainee to gain skills not available in home country & for job outside US Requires showing of foreign residence applicant intends to return to 10/04/2017 Gee & Zhang , LLP

NAFTA PROFESSIONALS The North American Free Trade Agreement (NAFTA) allows Canadian or Mexican citizens to temporarily come to the US as professionals Job must be in one of the listed occupations Most require Baccalaureate/Licenciatura degree Accountant; Architect; Computer Systems Analyst; Engineer; Interior Designer; Lawyer; Librarian; Management Consultant; Mathematician; Research Assistant; Medical Professions; Scientists; Professors... 10/04/2017 Gee & Zhang , LLP

Immigrant Categories Review
The Green Card 10/04/2017 Gee & Zhang , LLP

Employment-based Immigration
EB-1 – Extraordinary / Outstanding EB-2 – Certain Professionals EB-3 – General Workers NIW – National Interest Waiver PERM: Labor Certification (Recruitment Process) Visa Bulletin 10/04/2017 Gee & Zhang , LLP

EB-1 Persons of Extraordinary Ability
Extraordinary ability in sciences, arts, education, business or athletics (allows self-sponsorship and Premium Processing) Qualifies with major award (Nobel Prize) Alternately a combination of USCIS criteria: national/international awards, published works, membership requiring outstanding achievement, commands high salary compared to others in field, & similar Intended for small percentage at top of field 10/04/2017 Gee & Zhang , LLP

EB-1 Outstanding Professors/Researchers
Internationally recognized as outstanding in specific academic area with at least 3 years of experience in teaching or research in area, for specific teaching or research position Evidence includes at least 2 from list of criteria such as major awards, published material, original scientific research, etc. Premium Processing possible Typically for those at or beyond Ph.D. 10/04/2017 Gee & Zhang , LLP

EB-2 Certain Professionals
Members of the professions with advanced degrees (Master’s) or the equivalent (Bachelor’s plus 5 years of progressive experience) Aliens of exceptional ability in sciences, art, or business Requires PERM Labor Certification or Waiver of job offer if alien’s services are in the national interest 10/04/2017 Gee & Zhang , LLP

EB-2 NIW National Interest Waiver (NIW): A waiver of the recruitment requirement by showing that the foreign national’s admission would be in the national interest. Allows self-sponsorship. (1) Proposed endeavor has both substantial merit and national importance, (2) Applicant is well positioned to advance the proposed endeavor; and (3) On balance, it would be beneficial to the US to waive the job offer and labor certification requirements. 10/04/2017 Gee & Zhang , LLP

EB-3 General Workers Pertinent Category : those with Bachelor’s degrees & who hold professional jobs Must obtain labor certifications from the Department of Labor that: There are not sufficient US workers who are able, willing, qualified, and available to do the work The employment of the alien will not adversely affect the wages and working conditions of US workers similarly employed. 10/04/2017 Gee & Zhang , LLP

PERM Labor Certification
Complex and highly technical computerized system Form is 20 pages Simple variants will result in application denial Theoretical day processing, currently 3-6 months initially and frequently additional 4-8 months for Audits Based on prevailing wage determined by job duties and geographic location 10/04/2017 Gee & Zhang , LLP

PERM Labor Certification
Substantial recruitment to be done days prior to submission of PERM application 30 day job order with DOL 2 Sunday ads in largest local newspaper or professional positions may substitute one Sunday ad for an appropriate trade journal 3 additional recruitments from DOL list of 10 All applicants must be shown to not qualify or accept the terms 10/04/2017 Gee & Zhang , LLP

Visa Bulletin October 2017 All Other CHINA mainland born INDIA MEXICO
Employment Based All Other CHINA mainland born EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES 1st C 2nd 22MAY13 15SEPT08 3rd 01JAN14 15OCT06 01DEC15 Other Workers 01JAN06 02/04/2015 Gee & Zhang , LLP

Updates 10/04/2017 Gee & Zhang , LLP

Updates DACA Repeal New Travel Ban DHS Social Media Review
10/04/2017 Gee & Zhang , LLP

DACA Repeal The Deferred Action for Childhood Arrivals program (DACA) was created in 2012 9/5/2017 announced the phasing-out of DACA No new applications accepted as of 9/5/2017. Currently pending DACA applications as of 9/5/17 will be processed normally. People who currently have DACA may retain their status until it expires. 10/04/2017 Gee & Zhang , LLP

DACA Repeal Individuals whose DACA will expire before March 5, 2018 will be permitted to apply for renewal, but the renewal application MUST be filed (received) by October 5, 2017. People whose DACA expires after March 5, will not be permitted to renew their status. 10/04/2017 Gee & Zhang , LLP

New Travel Ban Date Ban Goes Into Effect: October 18, 2017
8 Countries Affected – Entry is suspended for: North Korea and Syria: All immigrants & non-immigrants. Chad, Libya, Yemen: All immigrants & non-immigrants seeking B-1, B-2 or B-1/B-2 visas. Iran: All immigrants & non-immigrants, except for student (F & M) & exchange visitor (J) visas with additional scrutiny. Venezuela: Only certain government officials & their immediate families. Additional scrutiny for rest. Somalia: No ban, but additional scrutiny for all visa applications. 10/04/2017 Gee & Zhang , LLP

New Travel Ban Only Applies to those who are: (1) Outside U.S. on 10/18/17 and (2) Do not have visa as of 10/18/17. Current visa holders will not be affected. Exceptions: Does not apply to certain classes of people, such as legal permanent residents, dual nationals travelling with passport of non-listed country, and those granted asylum or already admitted refugees. Waivers: Can still be granted on case-by-case basis. 10/04/2017 Gee & Zhang , LLP

DHS Collecting Social Media Information
Due to Take Effect: October 18, 2017 (comments are still open, so the contents could change by then) What to Expect in General: Dept. of Homeland Security files should be expanded to include “social media handles, aliases, associated identifiable information, and search results.” Exact scope will not be known until October 18, but expect heightened scrutiny with respect to all social media when interacting with immigration officials. 10/04/2017 Gee & Zhang , LLP

Presentation www.HarryGee.com/Rice2017
Gee & Zhang, LLP Presentation Additional information 5847 San Felipe, Ste 2950 Houston TX 77057

International Students: Employment & Immigration

Similar presentations

Presentation on theme: "International Students: Employment & Immigration"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

International Students: Employment & Immigration

Similar presentations

Presentation on theme: "International Students: Employment & Immigration"— Presentation transcript:

Similar presentations

About project

Feedback