1. After OPT and before the Green Card
February 9, 2017

2. 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).

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

4. 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

5. 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

6. 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)

7. 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:
Correct classification (F, H, J, O)?
Correct validity period
If error on I-94, must resolve ASAP:
inspection/overview-deferred-inspection

8. I-94 Following Admission at Port of Entry

9. I-94 Following Admission at Port of Entry

10. 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

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

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

13. 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

14. 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’

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

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

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

23. 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)

24. 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

25. 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

26. Alternatives: Es Must be national of treaty country
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

27. 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

28. 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

30. For Further Information
Suzanne B. Seltzer, Esq.
The Seltzer Firm, PLLC
Telephone:
Address: Broadway, 10th Fl, NY, NY 10010

31. DISCLAIMER / COPYRIGHT NOTICE
The materials contained in this PowerPoint does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Copyright © 2017 The Seltzer Firm, PLLC.
All rights reserved.
Copyright © All rights reserved.