Beyond the f 1 october 2012

Beyond the F-1: How Can
Students Remain in the US
After They Graduate?

Charina P. Garcia and Melissa Harms

Basic Immigration Terms

 Non-immigrant: Foreign national approved for temporary entry into
the U.S. for a specific purpose
 Immigrant: Foreign national approved for lawful permanent
residence in the U.S.
 Visa: Travel document issued by a U.S. Consulate or Embassy
abroad that allows a foreign national to apply for admission at a U.S.
port of entry
 Status: Period of authorized stay, as indicated on the Form I-94

© 2012 CPG Immigration Law Group

H-1B Flowchart

File Labor Condition Application with DOL
(7 day processing)

File H-1B petition with USCIS
(4-6 months processing or 15 days for extra $1,225)

Change of Consular
Status Processing

H-1B effective on or after October 1 Interview Scheduled at U.S. Consulate/Embassy


H-1B Visas

 6 year visa
 3 years + 3 year extension
 Position must be in “specialty occupation” and require a baccalaureate
degree
 Foreign national must possess the required degree or equivalent
 Allows for dual intent-immigrant intent
 Family members – H4: Allowed to go to school but cannot work
 H-1B audits are common


H-1B Visas

 Position and employer specific
 Can be for part-time or concurrent employment
 Not for independent contractor
 Portability: Once in H-1B status can transfer employers once petition with
new employer filed and received. Do not need to wait for decision on
petition.

 Note: If going from cap-exempt to cap-subject employer, must apply for visa
number


H-1B Numerical Cap

 65,000 new H-1B “numbers” per year

 20,000 additional H-1B numbers for holders of U.S. Master’s degree or
higher degree

 Cap opens up on April 1

 Cap reached on June 11, 2012; January 26, 2011

 Normally, visas gone immediately, and lottery held for available slots


H-1B Numerical Cap: Who is Not Subject?

 Institution of Higher Education

 Affiliated Non-Profit Entity: Associated with an institution of higher
education, through shared ownership or control or attached as a branch,
cooperative, or subsidiary

 Non-profit research organization or governmental research organization

 Individuals who previously held H-1B status

 Individuals currently in H-1B status


H-1B Labor Condition Application

 Employer attests that it will pay higher of the prevailing wage or the actual
wage
 Prevailing wage = market wage as determined by DOL or wage source
accepted by DOL
 Actual wage = the wage that is actually being paid to similarly situated
workers
 Must pay actual wage if more than prevailing wage
 Employer attests that it will provide same working conditions to foreign
worker as to U.S. worker
 Employer must provide notice of the LCA to other employees
 LCA takes 7 calendar days to process


H-1B Visa: Filing Fees

 REQUIRED OF ALL PETITIONS
 $325 application fee
 $500 USCIS Fraud Fee
 IF FEWER THAN 26 EMPLOYEES
 $750 - ACWIA
 IF 26 OR MORE EMPLOYEES
 $1500 – ACWIA

 *OPTIONAL $1,225 TO PREMIUM PROCESS IN 15 DAYS


Preparing the H-1B Petition

 After LCA is certified, file petition

 H-1B petition filed with the USCIS

 Regular processing 4 – 5 months

 Premium processing in 15 days by paying USCIS an additional $1,225

 Once approved, USCIS issues Form I-797 approval notice and either
change of status or consular processing


Change of Status or Consular Processing

Change of Status Consular Processing
File petition with USCIS File petition with USCIS
Stay in US (BEWARE: departing US Receive approval
while petition is pending can result in
denial)
Receive approval Depart US
Status change goes into effect on Take original approval notice to
requested date interview at US Consulate
If travel abroad, must obtain visa at Obtain visa
US Consulate
Re-enter US


H-1B Status

 Employer must pay H-1B wage within 30 days of employee’s entry into U.S.
or 60 days if a change of status application

 Must apply for visa at U.S. Consulate abroad once travel abroad if change
of status. Make sure to check processing times as delays are common.

 Must notify USCIS of any address changes within 10 days

 If terminated, there is no grace period and fall out of status upon termination

 Employer is required to pay return transportation back to home country if
terminated prior to H-1B expiration date


Gap Cap Regulation

 Allows F-1 students to remain in the U.S. and continue to work on their OPT
if a timely-filed H-1B petition remains pending or has been granted by the
USCIS.

 Applies to all F-1 students who are successful under the H-1B lottery and
have a pending or approved H-1B petition.

 H-1B must be approved by September 30 or employment must stop.


17 Month Extension of OPT

 Students on OPT can extend that period by up to 17 months (for a
maximum total period of 29 months of OPT) if the student received a degree
in science, technology, engineering, or mathematics (STEM).

 Only available to STEM degree students who have accepted employment
with an employer registered and in good standing with USCIS’ E-Verify
employment verification program.

 E-Verify is an internet based system that verifies the work authorization of
employees


OPT Dates and H-1B Submission

OPT When to apply for H-1B Special Notes
Expiration
January – April 2012
March 2013
April – April 2013 Will need to work under H-
September 1B gap cap from OPT
2013 expiration until 09/30/2013

October – April 2013
December 2013
January – April 2013
March 2014


Advantages to H-1B and OPT

OPT H-1B
May work for any employer as long as Allowed a total of six years (with
related to field of study further extensions possible)
Allowed 90 days of unemployment Can start permanent residency
process

No employer sponsorship required Counted once in H-1B “numbers”
Can be unpaid (note STEM OPT must Must be paid the prevailing wage
be paid employment)
Can be independent contractor Must be an employee and receive
same benefits as other employees


Other Non-Immigrant Visas

Visa classification General requirements

TN Canadians or Mexicans are eligible for TN status
for a position designated in NAFTA. Schedule 2
of NAFTA identifies the requirements for each
position. Can be issued in 3 year increments.

L-1A Intra-company transferee. (Manager or Executive)
L-1B or (Specialized Knowledge). Must work abroad
for one year within the last 3 years with overseas
employer before transferring to U.S. Must be
employed as a manager or executive (L-1A). May
apply for permanent residency without going
through labor certification process. Limited to 7
years in L-1A status and 5 years in L-1B status.
O-1 Persons of extraordinary ability in the arts and
entertainment, athletics, sciences, business and
education. No numerical quota. Initial visa for 3
years and renewable annually indefinitely.


Other Non-Immigrant Visas (cont’d)

Visa classification General requirements

J-1 Cultural exchange visa. Used for trainees,
research scholar, short-term scholars, or
specialists. Limits vary according to type of
program. Beware – some individuals will be
subject to two-year return requirement.

H-3 Temporary worker invited by individual or
organization for purposes of receiving instruction
and training other than to receive graduate
medical education or training. The training
program must be one “that is not designed
primarily to provide productive employment” and
training can’t be available in home country.
E-3 Visa for Australian nationals. Similar to H-1B visa
as position must require a Bachelor’s degree and
foreign national must possess a Bachelor’s
degree. Renewable indefinitely. Cap of 10,500
per year.


Sponsorship for Permanent Residency

Labor certification Non-labor certification

• Employer recruits and must prove a shortage • Outstanding Researcher
of minimally qualified American workers to fill
the position • Extraordinary Ability

• PERM process • National Interest Waiver

• File with Department of Labor • Multi-National Executive or Manager

• Diversity Lottery

• Investor

• Religious Worker


Permanent Residency Flowchart

PERM

Immigrant Visa Petition (I-140)

Wait for Visa Availability

Adjustment of Status (I-485) Consular Processing

Interview Scheduled at U.S.
EAD/AP
Consulate/Embassy


Visa Availability - Visa Bulletin

 Published monthly by the Department of State (www.travel.state.gov)

 140,000 employment based immigrant visa numbers available on October 1

 Limited numbers available for each preference category and for each
country each year

 Each month Department of State determines how many immigrant visas
were used worldwide and publishes a “cut-off date” in the Visa Bulletin

 Backlogs occur when the number of immigrant visas filed exceeds the
number of immigrant visas available

 Previously current dates on the Visa Bulletin may go backwards, or
categories may become “Unavailable”


November 2012 Visa Bulletin

Employment- All Other China India Mexico Philippines
Based Chargeability
Areas Except
Those Listed
1st Current Current Current Current Current
2nd Current 01SEP07 01SEP04 Current Current
3rd 22NOV06 15APR06 22OCT02 22NOV06 08AUG06

 Priority Date is the date PERM was filed with the DOL

 Country of Chargeability is applicant or spouse’s country of birth

 Category (1, 2 or 3) is determined by position requirements AND employee’s
qualifications


EB-2 vs. EB-3

Position requires at a minimum and Employee has:

 EB-2: Master’s degree or Bachelor’s and 5 years of progressively
responsible post-baccalaureate work experience (there is no quota wait
unless from China or India)

 EB-3: At least 2 years of education or work experience (there is currently a
7 - 15 year wait)

 In order to qualify for EB-2, degree must be from a single source (i.e. degree
alone must be equivalent to a U.S. 4 year Bachelor’s degree; cannot
combine degrees to come up with a Bachelor’s equivalent)


Green card Sponsorship: PERM

 Test the labor market to prove no qualified U.S. worker through newspaper
ads, state workforce job posting, internal job posting, online job boards,
external online posting, company website, etc.

 Recruitment for 60 – 180 day period

 Earliest can file with Department of Labor (“DOL”) is 30 days AFTER last
form of recruitment (i.e. last recruitment placed on 03/1/2012, can file any
time after 04/01/2012)

 Online filing, audit-based (like tax return)

 Processing times (no audit = 3 – 5 months; audit = 2 yrs)

 Once PERM pending more than 365 days AND PERM filed at least 1 year
prior to H-1B max out date, can renew H-1B in 1 year increments


I-140 Petition

 Once PERM application approved, file I-140 immigrant petition with the
United States Citizenship and Immigration Services (“USCIS”)

 Prove company can pay offered salary

 Prove employee’s qualifications for position

 Standard processing time is 5 – 6 months

 Can premium process in 15 calendar days by paying $1,225 government
filing fee

 Can file concurrently with I-485 (Step 4) if visa available under Department
of State Visa Bulletin

 Once I-140 approved, can renew H-1B in 3 year increments while waiting
for visa availability


Outstanding Researcher I-140

 First Preference visa petition
 Sponsored by employer
 Requirements:
 The individual must hold a tenured, or tenure-track faculty
position at an university or institution of higher learning or have a
comparable permanent job offer at such establishment; OR a
comparable job offer at a private company with documented
accomplishments in the academic field which employs three full-
time research personnel; and
 The individual must have at least three years prior teaching or
research experience in the field.
 Meet two of statutory criteria


Criteria for Outstanding Researcher

 Receipt of major prizes or awards for outstanding achievements in the
academic field;
 Membership in associations in the academic field which require outstanding
achievements of their members;
 Published material in professional publications written by others about the
alien’s work in the academic field;
 Participation, either individually or on a panel, as the judge of the work of
others in the same or an allied academic field;
 Original scientific or scholarly research contributions to the academic field;
or
 Authorship of scholarly books or articles (in scholarly journals with
international circulation) in the academic field.


National Interest Waiver I-140

 Second Preference Visa Petition
 Self-sponsored petition
 Requirements:
 Advanced degree or exceptional ability;
 The individual’s work must be of “substantial intrinsic merit;”
 The proposed benefits of the individual’s work must be “national
in scope;” and
 The individual’s past record of achievement must demonstrate
that he or she will prospectively benefit the national interest to a
substantially greater degree than would an available US worker
having the same minimum qualifications.


I-485 or Consular Processing
 Beneficiaries can file for AOS or Consular processing only when a visa is available
– When preference category and country of chargeability in Visa Bulletin is “Current,” or
– When cut-off date in Visa Bulletin for preference category and country of chargeability is on or
before the Priority Date

CONSULAR PROCESSING
 If consular processing, National Visa Center will issue documents needed for immigrant visa
interview overseas

 Once Priority Date is current, U.S. consulate will schedule interview

ADJUSTMENT OF STATUS (I-485)
 Once Priority Date is current, submit I-485 with USCIS

 Apply for work permit and travel permit for spouse and children under 21 – work permit valid for 2
years if I-140 approved; I-131 valid for 1 year

 Can be approved in 4-6 months if visa available current


Strategy Issues

 Research employer’s policies regarding sponsorship

 Permanent residency—start planning early

 Seek legal advice early in the process to assist your planning

 Plan graduation date/OPT with H-1B in mind


Questions or Comments?

Charina P. Garcia
Melissa Harms charina@cpglawgroup.com
mharms@harms-law.com
700 Larkspur Landing Circle, Suite 199
Larkspur, California 94939
415.945.9600 (Phone)
415.651.9602 (Fax)

Beyond the f 1 october 2012

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