4Three Groups of People in the US CitizensImmigrantsNonimmigrants
5Nonimmigrants Coming to the U.S. temporarily Retain residence abroad Dual intent - only for H’s and L’s“Alphabet Soup” - A-VImportant Visas to Know: H-1B, TN, E-3, F-1, J-1, O-1Immigrants vs. nonimmigrants
6Immigrants “Green card holders” = “permanent residents” = “immigrants” Coming to U.S. permanentlyNumerically limitedVisa bulletinPriority dateCan become U.S. citizens after years
16H-1B Category: USCIS Provisions H-1B visas are for temporary (nonimmigrant) workers engaged in a specialty occupation that requires(1) theoretical and practical application of highly specialized knowledge and(2) attainment of a bachelor's or higher degree, or equivalent experience, in the specific specialty for entry into the occupation.“Specialty Occupation” -- Entry level requirement = minimum Bachelor Degree or equivalentCap: 65, ,000 additional visas allocated to holders of advanced degrees from U.S. universitiesCap Subject vs. Cap ExemptAll Universities are cap exempt
17H-1B (continued) H-1B can be full-time or part-time H-1B workers are “tied” to their employerCannot accept payment from any other sourceCan hold dual/concurrent H-1Bs with multiple employersWhat are the government fees? ($325, $500, $750/$1500)Universities exempt from Training Fee ($750/$1500)
18H-1B (continued)H-1B visas are valid for 3 years and can be extended for an additional 3 year period for a total of 6 years in H-1 statusPrevious stays in L-1 or H-1 status (but not L-2 or H-4 dependent status) count towards maximum period of stayTime spent outside of the US does not count towards 6 year limitH-1B visas can be extended past the 6-year maximum in certain situations:1 year Extension: If PERM has been filed at least 365 days prior to the date the H‐1B expires3 year Extension: If an I‐140 has been approved, and the individual cannot adjust status because priority date is not current (usually someone from China or India)
19Wage Requirements Actual Wage Prevailing Wage paid by the employer to US workersin the same positionat the same work sitewith similar experience and qualificationsPrevailing WageAverage salary paid to all similarly situated employees (i.e. similar job duties, experience, education, etc.) in each geographic regionRequired Wage – higher of the actual or prevailing
20Prevailing WagesTwo ways to get PWD: Through Dept of Labor OR through FLC Data Center (website)DOL Wages: DOL will issue a wage by going on FLC Data Center themselves and finding the appropriate job code and wage levelWhen we get the wage on our own, we run the risk of creating liability for the University, therefore all wages must be obtained through DOL; this creates a Safe Harbor!
26Actual Wage Memo & FormShould be completed and submitted along with NIV employer questionnaireWe need to demonstrate that the University is paying H-1B employees at least, if not more, than all other similarly situated employees
29Procedural Requirements of the LCA The U.S. employer must file a Labor Condition Application (LCA) with the Department of Labor. The employer must attest to certain things in the LCA, such as paying the FN at or above the prevailing wage for the position.U.S. employer must post the LCA for ten business days in two conspicuous locations and include the LCA and other documentation in a public access file.
30General Requirements of LCA LCA required for every H-1B petition and all H-1B1 & E-3 applicationsPurpose – to protect wages and working conditions of U.S. workersEmployer makes attestations on LCA10 day posting requirement at work site (2 locations)LCA form filed electronically with DOL
31LCA Attestations All employers must attest: Working conditions of U.S. workers will not be adversely affectedThere is no strike or lockoutH-1B workers will be paid the higher of the prevailing or actual wageNotice has been provided to all employees
32Public Access File (PAF) To be maintained by employerFor every LCARetain for 1 year from expiration of LCA or withdrawal of LCAMust be available for inspection by anyoneMust be created within one working day after the filing of the LCA
36When is Premium Processing NOT Needed? Premium Processing is usually not needed for a change of employer or extension of H-1B statusUnless there are immediate travel needsChange of Employer = Employee is currently working for another employer in H-1B statusExtension of Status: As long as the extension petition is filed BEFORE the current H-1B expires, the employee is authorized to work pursuant to their receipt notice for up to 240 days
37When is Premium Processing Sometimes Needed? Change of Status: Most common is changing from F-1 or J-1 to H-1B; employee cannot start working until petition is APPROVEDConsular Notification: When the employee is abroadPlease factor in added delays such as scheduling a visa appointment and getting the visa stampTravel: When the foreign national wants an immediate approval in order to be able to travel internationally
38No “Benching” H-1B Workers Must start payroll when H-1B “enters into employment”, i.e., when he/she first makes him/herself available for work or comes under control of employer but no later than30 days after entering US orIf in US, 60 days after start date on petition or change of status by USCIS, whichever is laterNo exception where awaiting licenseNo unpaid status due to lack of workUnpaid leave OK if:H-1B unable to workWorker’s voluntary request
39H-1B PortabilityEnables nonimmigrants currently in H-1B status to begin new employment upon USCIS receipt of an H-1B petition by new employer. Though there is no official guidance, time from termination of earlier employment to filing of new petition should be minimal (usually less than 30 days).Eligibility RequirementsMust have been lawfully admitted into the U.SNo unauthorized employment subsequent to lawful admissionNon-frivolous H-1B petition must be filed for new employment before expiration of current statusDon’t forget – porting from cap-exempt nonprofit to a for-profit employer means that the foreign national is submit to the H-1B cap.
40Terminated H-1B Employees When are they out of status? Is there a “grace period?”Technically out of status upon last day of actual productive employmentIn practice, USCIS provides “reasonable time” to file change of status or new employer petition after termination of employmentIs changing to B-2 status an option?Employers must offer to pay principal’s transportation costs home (preferably in writing at the time of termination)Need to send a withdrawal letter to USCIS immediately!
41Offering Jobs to Potential H-1Bs Make it clear that the job offer is contingent upon obtaining valid work authorizationJust because they work for you on OPT does not mean they are necessarily eligible for H-1BH-1B prevailing wages have increased significantly this yearH-1B denials have increased as well
42Travel Considerations In order to enter the US in H-1B status, the foreign national must present a valid, unexpired H-1B visa stampIn order to obtain the visa stamp, foreign nationals must complete an online application form (DS-160), make an appointment at their local Embassy/Consulate and present their original I-797 approval notice and a copy of the application package we filed with USCISException: Certain foreign nationals may be able to travel to Canada or Mexico for under 30 days without having an unexpired H-1B visa stamp
43Other H-1B IssuesH-1B’s can take classes which are “incidental” to his/her employment (part-time studies)Amendments: Is it a “material change”?Change in job duties, responsibilities and title are good indicators that an amendment is needed212(e): Certain J-1 exchange visitors are subject to a 2 year home-residence requirement; such individuals cannot change status to H-1B until they serve the 2 years at home or obtain a waiver
45E-3 Visa for Australian Nationals Visa category for citizens of Australia to take up professional positions in the U.S. – 10,500 per year availableJob offered must be for a “specialty occupation” as defined for H-1B visa categoryRequires certified LCAVisas can be applied for at consulates without prior USCIS approvalFilings can be submitted to USCIS, but premium processing is not available2-year validity; renewable indefinitelyDependent spouses may apply for employment authorization
46TN Category for Canadian and Mexican Professionals Must be nationals of either Canada or MexicoComing to U.S. to work in profession listed on NAFTAscheduleGenerally require a Bachelors degree in fieldCanadians apply at border (non-national dependentsmust obtain visa at U.S. Consulate)Mexicans apply at ConsulateThree year stay, renewable indefinitelyExtensions and changes of status may be filed at USCIS Service CenterEmployer Specific; can hold dual TN’s
47O-1 Individuals with Extraordinary Ability or Achievement The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athleticsTo qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.Employer specific; but can hold dual O-1sAnyone still subject to INA 212e (J-1 2 year home residence requirement) can obtain an O-1 visa3 years at a time, renewable indefinitely
48Evidentiary Criteria for O-1 Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following: Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavorMembership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the fieldPublished material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is soughtOriginal scientific, scholarly, or business-related contributions of major significance in the fieldAuthorship of scholarly articles in professional journals or other major media in the field for which classification is soughtA high salary or other remuneration for services as evidenced by contracts or other reliable evidenceParticipation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is soughtEmployment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
49F-1 Student Workers Six employment programs for F-1’s: On campus Severe Economic HardshipSpecial Student ReliefInternship with international organizationCurricular Practical TrainingOptional Practical Training
50F-1 Curricular Practical Training (CPT) Integral part of established curriculumNeed letter from schoolSchool endorsed I-20 (issued via SEVIS System)Can be internship, practicum, coop, work/study, or similar programAttended ICE approved school for full academic year in any nonimmigrant status; certain grad students may begin immediatelyAvailable part-time or full-timeOne year or more of full-time CPT makes you ineligible for OPT at that educational levelBut 24 months of part-time CPT is OK!
51F-1 Optional Practical Training (OPT) “Optional Practical Training:” pre- or post-graduationTotal = 12 months; part-time during school year, full-time during vacations and after graduationNeed employment authorization document (EAD);Not tied to particular employerEmployment related to degree programOne year of full-time OPT for each academic level (Associate’s, Bachelor’s, Master’s, Professional, PhD). OPT can’t be “saved” for future degree programs; very hard to cancel after card receivedCan have up to 90 days of unemploymentCan use OPT for Assistant Professor positions
52STEM OPT ExtensionStudent’s who majored in certain STEM (Science, Technology, Engineering, Math) fields may be eligible for a 17 month extension of work authorizationBUT, must have a job offer from a company that is enrolled in E-VerifyAllowed to have up to 120 days of unemploymentMust file I-765 with USCIS BEFORE current OPT expires (and preferably 120 days before expiration)Students CAN work with an expired OPT card when a timely filed STEM extension application is pending with USCIS
53J-1 Exchange VisitorsCategories include trainees, interns, research scholars, specialists, students, au pairs, etc.Some J’s must return to home country for 2 years after completion of program or seek waiverskills listgovernment fundinggraduate medical education
54J-1 Students (Academic Training) Similar to F-1 OPT (work must be related to major)Can be used while in school or post-graduation18 months max for undergrads and pre-docs (unless course of study is less than 18 months long)36 months max for post-docs (unless course of study is less than 36 months)Need letter from RO/ARO and valid DS-2019/I-94 for I-9 purposes
55J-1 Scholars and Professors 5 year maximum (no recapture); employment tied to sponsor; no wage requirementsCannot be in a tenured or tenure-track position12 Month Bar: Can’t get this particular J-1 if EV was in J-1/J-2 status within the past 12 months (several exceptions apply)24 Month Bar: Can’t get this particular J-1 if EV was in J-1/J-2 status (as a Scholar or Professor) within the past 24 months2 Year Home Residence Requirement: Additional restriction
56B-1 Visitor for Business Cannot receive pay from a US sourceAdmitted for up to 6 months (90 days for Visa Waiver)Must show that temporary activity in US will not be considered productive employment for a US companyCommon Uses: Independent research, conferences, training, lecture, meeting9, 6, 5 Rule: If honorarium will be received, activities can last no longer than nine days at any single institution or organization; honorarium is for services conducted for the benefit of the institution or entity; and visa applicant will not have accepted such payment or expenses from more than five institutions or organizations over the last six months.B-1 vs. J-1
58The IHP (Immigration Home Page) The Dept must obtain authorization from HR to proceed with the sponsorshipThe Dept and/or HR MUST initiate a case online on the IHP (https://nsu.fdbl.com/) by completing the “Nonimmigrant Visa Employer Questionnaire”Once we get the employer questionnaire, we contact the employee to complete the employee questionnaireWe cannot begin working on a case until we have the completed Employer and Employee questionnaires.
62How to Get a Green CardFamilyWorkDiversity LotteryAsylumSpecial Legislation
63Diversity Lottery50,000 green cards given out each year (about 14 million applicants)Odds of winning the powerball jackpot?? 1 in 195,249,054Who is NOT eligible? BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAMPersons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
64Family Based Permanent Residence Immediate relatives (spouses, minor children & parents of U.S. citizens)Other close family members of citizens or permanent residents, including:Unmarried sons & daughters of citizens (over age 21)Spouses & children of LPRs (2A) & unmarried sons/daughters of LPRs (2B)Married sons & daughters of citizensBrothers & sisters of citizens
69EB-1 Outstanding Researchers/Professors You must demonstrate international recognition for your outstanding achievements in a particular academic field.You must have at least 3 years experience in teaching or research in that academic area.You must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.
70EB-1 Outstanding Researchers/Professors Evidence of receipt of major prizes or awards for outstanding achievement Evidence of membership in associations that require their members to demonstrate outstanding achievement Evidence of published material in professional publications written by others about the alien's work in the academic fieldEvidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic fieldEvidence of original scientific or scholarly research contributions in the field Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
71National Interest Waivers Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national interest. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.Good category for Post-Docs
73PERM - Labor Certification Process PERM = Program Electronic Review ManagementPERM does not stand for permanent residence!Electronic application processStep 1 of the Green Card process (3 steps)Must obtain prevailing wage determination from National Prevailing Wage and Helpdesk Center (NPWHC) before filing
74What Is Labor Certification? Test of job market to make sure minimally qualified U.S. workers get available jobs before any foreign worker.Affected by the economySearch for able, willing, qualified and available U.S. Workers.Can’t make a company hire U.S. worker, but can’t submit case for foreign worker if a minimally qualified U.S. worker found.All fees associated with labor certification must be paid by employer (attorney fees, advertising costs)
75When Is Labor Certification Needed? First Stage of Permanent Residence Process for most employer-sponsored applications.Is needed by most EB-2 and all EB-3Who doesn’t need it:EB-1 cases:Multi-national Executive or ManagerOutstanding ResearcherIndividual of Extraordinary AbilityEB-2 IF National Interest is served by what they’re doing
762 Types of Labor Certifications Regular PERM: For all professional positions other than teachersSpecial Handling PERM: Only for college/university teaching positions
78Basic RequirementsThe labor certification application must be filed within 18 months from the date of the job offer letter (not the date of hire and not the first day of employment). If the case is not filed within this timeframe, a completely new, full-scale candidate search must be conducted before another application may be filed;The position must have been advertised in a national print journal;The position must primarily involve classroom teaching;The salary must be at or above the prevailing wage;Notice of Job Availability (NOJA): DOL requires a sponsoring employer to post notification regarding the filing of a labor certification for ten consecutive business daysRecruitment Statement
79Less-Stringent Standard Must show that applicant is “more qualified” than any other US applicantCan use subjective factors to show that the FN is more qualifiedMuch easier than showing that there are no minimally qualified US workers availableMust document this through the Recruitment Statement
80What Happens When 18 Month Deadline is Missed? A re-posting of the position will need be done to test the labor marketDOL regulations require that employers test the labor market so that U.S. citizens and permanent residents are not discriminated from the process; the main goal here is to see if there are qualified citizens and permanent residents, and to certify to the Dept. of Labor (DOL) of the labor conditionsWhile it appears counter-intuitive to advertise for a position that is not vacant, keep in mind that the primary purpose is to test the labor marketWe are allowed to file this case with DOL if the University determines that the foreign national is more qualified than any US workers who applied for the job.
81Benefits Fewer advertising costs Quicker processing times Lower audit ratesEasier standard, especially with our current high unemployment rate
83Labor Certification Basics The University must be able to certify to the DOL that there are no qualified U.S. workers able, willing, qualified and available to accept the job and that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workersIn order to make this certification, the University must run a series of advertisements and conduct a recruitment
84Qualifying CriteriaThe employer must hire the foreign worker as a full-time employee.There must be a bona fide job opening available to U.S. workers.Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.The employer must pay at least the prevailing wage for the occupation in the area of intended employment.Recruitment must take place days before PERM application filed
85Requirements Prevailing Wage Determination Placement of job order with SWAPlacement of two Sunday newspaper ads3 additional ads (Employer’s website; Job fairs; Job search websites; Private employment agencies; On-campus recruitment; Trade or professional organizations; Employee referral program (if incentives are offered); Campus placement office postings; Local and ethnic newspapers, where appropriate; Radio and television ads)Recruitment ReportNotice of Job Availibility (NOJA)
86Elements of the Advertisement Must contain the employer’s nameMust direct applicants to report to or apply to the employerMust describe the job opportunityMust indicate the geographic location of the job opportunityThe wage is not required, but if wage is included in the ad, must equal or exceed prevailing wage (and cannot be less favorable than the wage offered the foreign national)
87Contacting Applicants Good Faith EffortEmployer must timely contact ALL applicants as soon as possible (within reasonable timeframe, e.g days of receipt)Employer must document applicant contacts or attempts to contact:datesname and title of person making/ attempting contactmethod of contact - certified letter recommended
88Interviewing Applicants Employer’s normal company processscreening (e.g., telephone) interview conducted by employer is acceptableEmployer must analyze qualifications in the context of stated minimum requirementsEmployer must provide objective & quantifiable reasons for rejectionsAuthorization to work in the U.S.Potentially qualified applicants
89Recruitment Record/Report Recruitment results not submitted with labor certification applicationEmployers must maintain documentation of recruitment efforts and resultsRecords must be retained for five years from filing of labor certification applicationCertifying Officer may request records during an auditEmployer must prepare detailed recruitment report that fully and accurately describes recruitment effortsMust detail number of workers applied and sorted by reason of rejection (doesn’t need to contain names or resumes)
91Audit File Contents Records must be retained for 5 years Recruitment effortsRecruitment reportPrevailing wage determinationNotices/Postings/AdvertisementsBusiness necessity argumentsRecords must be retained for 5 years
92Audits How will cases be selected for an audit? Audit process Randomly Based upon audit criteriaJob duties not normal for occupation/exceed SVPQualifying experience gained with employer in comparable positionLayoffsForeign language requirementsAlternative requirementsCombination of occupationsForeign national influence over positionEmployer paid for education and/or trainingAudit processCO sends audit letter w/request for documentationEmployer has 30 days to submit responseCO may certify, deny, request additional documentation or order supervised recruitment
93Impact of Termination or Changes in Conditions of Employment on Permanent Residence Process Immigrant Visa (I-140) PetitionsMaintenance of priority dateAdjustment of Status (I-485) ApplicationsAdjustment of Status PortabilityIf I-140 approved or approvable and I-485 pending more than 180 daysMust be filling same or similar occupationChange in job location or difference in wage offered not basis for denial (substantial wage difference could impact “same or similar job capacity” analysis)Notification to USCIS of change of employer
95I-140 Petition Step 2 of the green card process Step 1 of the green card process for EB-1 and NIWAfter PERM approval, everyone is eligible to file I-140Must be filed within 180 days of PERM approvalMust document ability to payMust document requirements listed on PERM application (education, experience, etc)
97Adjustment of Status (I-485) Third and final step of Green Card processCan file concurrently with I-140 if priority date is currentFiling of I-485 gives applicant status to remain in the US90 days after filing, applicant receives work permit (EAD) and travel document (advance parole) if they filed I-765 and I-131Biometrics occur 1-3 months after filingGreen card issued approximately 6 months after filing
98Thank You! If you have additional questions, please send me an This presentation is not intended to be construed as legal advice.