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January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 1 Navigating the Immigration Maze Strategies and Solutions from Work Visas through Greencards.

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Presentation on theme: "January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 1 Navigating the Immigration Maze Strategies and Solutions from Work Visas through Greencards."— Presentation transcript:

1 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 1 Navigating the Immigration Maze Strategies and Solutions from Work Visas through Greencards Michael L. Kabik, Esq. © 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A Park Potomac Avenue, 6 th Floor, Potomac, MD T: (301) F: (301) ShulmanRogers.com

2 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 2 Work Visas and Permanent Residence H-1B “Specialty Occupation” F-1 Optional Practical Training (“OPT”) Visa Alternatives to H-1B & OPT

3 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 3 Work Visas and Permanent Residence Work Visa Export Control Certifications for “Release of Controlled Technology or Technical Data” “VIBE” Program PERM Greencard Sponsorship

4 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 4 H-1B “Specialty Occupation” H-1B – “Specialty Occupation” Employer-specific Professional Requires Bachelor’s degree or equivalent –CIS work experience 3:1 rule DOL Labor Condition Application (LCA) E-filed with DOL U.S. worker protections Employer must pay DOL prevailing wage –Alternate wage survey

5 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 5 H-1B “Specialty Occupation” H-1B – “Specialty Occupation” Up to 3-year validity 6-year H-1B/L-1 maximum per worker Extensions beyond 6-year maximum in limited circumstances

6 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 6 H-1B “Specialty Occupation” H-1B – “Specialty Occupation” H-1B status limited by annual quota (“cap”) Maximum number each Fiscal Year (“FY”) –Unless EXEMPT Federal government FY –Starts October 1 st –Ends September 30 th –FY-2014 started 10/1/13 and will end 9/30/14 H-1B Cap = 195,000 in FY-2003 H-1B Cap = 65,000 in FY-2004 and later

7 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 7 H-1B “Specialty Occupation” H-1B “Portability” Greatly simplifies mobility among employers H-1B workers can start new employment Upon filing of new “non-frivolous” H-1B Petition –Subject to final approval of new H-1B Petition Need not wait for approval of H-1B Petition to begin work

8 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 8 H-1B “Specialty Occupation” H-1B “Portability” Requirements Lawfully admitted to U.S. New petition filed prior to expiration of authorized stay –CIS has discretion to forgive “lapse in status” No prior employment w/o authorization

9 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 9 H-1B “Specialty Occupation” H-1B Cap Employers can file H-1B petitions up to 6 months before start date FY-2014 started 10/1/13 FY-2015 will start 10/1/14

10 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 10 H-1B “Specialty Occupation” H-1B Cap If H-1B cap is exhausted for current FY Must wait until 6 months before next FY to file –Unless EXEMPT from H-1B cap “H-1B Cap Season” begins on April 1 st –6 months before start of next FY and new H-1B cap

11 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 11 H-1B “Specialty Occupation” H-1B Cap H-1B Lottery If maximum number reached in initial filing window Computer-generated random selection of H-1B petitions Wait list selection also by lottery To replace selected H-1B petitions later denied, withdrawn, or found ineligible Non-selected or wait listed H-1B petitions Returned to sponsoring employers With filing fees

12 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 12 H-1B “Specialty Occupation” H-1B Cap H-1B Lottery – Advanced Registration CIS Proposed Rule Only employers selected in advance will be able to file H-1B petitions in lottery period Eliminates large CIS intake of H-1B petitions during initial filing window and return of non-selected H-1B petitions Saves employers time and expense of filing H-1B petitions that are not selected in lottery

13 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 13 H-1B “Specialty Occupation” H-1B Cap – Next FY-2015 Earliest filing date for FY-2015 start date of 10/1/14 will be 4/1/14 Initial filing window 1 st 5 business days Tuesday 4/1/14 to Monday 4/7/14

14 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 14 H-1B “Specialty Occupation” H-1B Cap – Current FY-2014 FY-2014 H-1B cap reached 4/5/13 5 th day of H-1B filing window for FY /1/13 start dates Approx. 124,000 H-1B petitions filed subject to FY-2014 cap During initial lottery period Between 4/1/13 to 4/5/13

15 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 15 H-1B “Specialty Occupation” Snapshot of Prior Year H-1B Cap (FY-2013) FY-2013 H-1B cap not reached during initial filing window 4/2/12 to 4/6/12 No H-1B lottery for FY-2013 All H-1B petitions filed during initial filing window assigned an H-1B cap number (subject to approval)

16 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 16 H-1B “Specialty Occupation” Snapshot of Prior Year H-1B Cap (FY-2012) FY-2012 H-1B cap not reached during initial filing window 4/1/11 to 4/7/11 No H-1B lottery for FY-2012 All H-1B petitions filed during initial filing window assigned an H-1B cap number (subject to approval)

17 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 17 H-1B “Specialty Occupation” Snapshot of Prior Year H-1B Cap (FY-2011) FY-2011 H-1B cap not reached during initial filing window 4/1/10 to 4/7/10 No H-1B lottery for FY-2011 All H-1B petitions filed during initial filing window assigned an H-1B cap number (subject to approval)

18 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 18 H-1B “Specialty Occupation” Snapshot of Prior Year H-1B Cap (FY-2010) FY-2010 H-1B cap not reached during initial filing window 4/1/09 to 4/7/09 No H-1B lottery for FY-2010 All H-1B petitions filed during initial filing window assigned an H-1B cap number (subject to approval)

19 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 19 H-1B “Specialty Occupation” Snapshot of Prior Year H-1B Cap (FY-2009) FY-2009 H-1B cap reached 4/7/08 5 th day of H-1B filing window for FY /1/08 start dates Approx. 163,000 H-1B petitions filed subject to FY-2009 cap During initial lottery period Between 4/1/08 to 4/7/08

20 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 20 H-1B “Specialty Occupation” H-1B Cap – Current/Prior Years Impact of the Recession Current FY-2014 H-1B Cap reached 4/5/13 Prior FY-2013 H-1B Cap reached 6/11/12 Prior FY-2012 H-1B Cap reached 11/22/11 Prior FY-2011 H-1B Cap reached 1/26/11 Prior FY-2010 H-1B Cap reached 12/21/09 Prior FY-2009 H-1B Cap reached 4/7/08 Prior FY-2008 H-1B Cap reached 4/6/07

21 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 21 H-1B “Specialty Occupation” H-1B Cap Exhausted – Timing Recovering economy current FY-2014 Booming economy prior FY-2009 and FY-2008 and H-1Bs exhausted during initial filing window –1 st 5 business days of April –6 months ahead of October 1 st start date

22 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 22 H-1B “Specialty Occupation” H-1B Cap – Current FY-2014 Only non-cap H-1B’s approvable until FY-2015 (start dates beginning 10/1/14) Unless EXEMPT from H-1B cap –H-1B workers previously counted in cap –Other exempt H-1B workers

23 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 23 H-1B “Specialty Occupation” H-1B Cap Exemptions Institutions of higher education Nonprofit entities related to or affiliated with institutions of higher education Nonprofit research organizations Governmental research organizations

24 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 24 H-1B “Specialty Occupation” H-1B Cap Exemptions Holders of U.S. Masters or higher degrees 20,000 H-1B cap exemptions each fiscal year Random selection lottery, if necessary –Preceding the general 65,000 cap lottery –Advanced degree holders not selected for one of 20,000 exemptions also included in 65,000 cap lottery

25 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 25 H-1B “Specialty Occupation” H-1B Cap Exemptions Holders of U.S. Masters or higher degrees Current FY-2014 Advanced degree H-1B cap exemptions exhausted 4/5/13 (during initial filing window)

26 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 26 H-1B “Specialty Occupation” H-1B Cap Exemptions Holders of U.S. Masters or higher degrees Snapshot of prior FY-2013 Advanced degree H-1B cap exemptions exhausted 6/7/12

27 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 27 H-1B “Specialty Occupation” H-1B Cap Exemptions Holders of U.S. Masters or higher degrees Snapshot of prior FY-2012 Advanced degree H-1B cap exemptions exhausted 10/19/11

28 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 28 H-1B “Specialty Occupation” H-1B Cap Exemptions Holders of U.S. Masters or higher degrees Snapshot of prior FY-2011 Advanced degree H-1B cap exemptions exhausted 12/22/10

29 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 29 H-1B “Specialty Occupation” H-1B Cap Exemptions Holders of U.S. Masters or higher degrees Snapshot of prior FY-2010 Advanced degree H-1B cap exemptions exhausted 10/25/09

30 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 30 H-1B “Specialty Occupation” H-1B Cap Exemptions Holders of U.S. Masters or higher degrees Snapshot of prior FY-2009 Advanced degree H-1B cap exemptions exhausted 4/7/08 (during initial filing window)

31 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 31 H-1B “Specialty Occupation” H-1B Cap Exemptions Prospective H-1B employees previously granted H-1B status In the past 6 years Not left U.S. for >1 year after attaining H-1B status Not previously worked for a cap-exempt organization/not counted against the H-1B cap in past 6 years

32 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 32 F-1 OPT F-1 – Optional Practical Training University students 12 months cumulative validity period (per degree) includes Pre-completion OPT Post-completion OPT Additional 17 months post-completion OPT STEM degree holders

33 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 33 F-1 OPT F-1 – Optional Practical Training Pre-completion OPT After enrolled 1 full academic year Must be directly related to major area of study Part time during school Full time during breaks Post-completion OPT Must be directly related to major area of study

34 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 34 F-1 OPT F-1 – Optional Practical Training F-1 students 60-day departure period Following graduation F-1 students with post-completion OPT also receive 60-day departure period Following end of OPT Without employment authorization

35 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 35 F-1 OPT F-1 – Optional Practical Training Not employer-specific Employer not required to file petition to sponsor student Student files Application for Employment Authorization and required documentation directly with CIS

36 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 36 F-1 OPT – STEM Degree Extension OPT EAD extensions for qualified F-1 students 12 (original) + 17 (ext.) =29 months total STEM degrees (Science, Technology, Engineering, and Mathematics) Employed by business enrolled in CIS E-Verify program

37 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 37 F-1 OPT - STEM Degree Extension OPT EAD extensions for qualified F-1 students Once enrolled in E-Verify Employers must use E-Verify to verify employment eligibility for all new hires within 3 days of hire Is STEM OPT EAD extension worth subjecting all future workforce new hires to the scrutiny of E-Verify?

38 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 38 F-1 OPT - STEM Degree Extension OPT EAD extensions for qualified F-1 students E-Verify mandatory Government contractors –Contracts with value of $100,000+ Subcontractors –Contracts with value of $3,000+ Federal Court challenges to E-Verify denied

39 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 39 F-1 OPT - STEM Degree Extension OPT EAD extensions for qualified F-1 students 17 month STEM OPT extension (29 months total) gives employers opportunity to sponsor for H-1B status in 2 successive fiscal years

40 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 40 F-1 OPT - STEM Degree Extension Eligibility for 17 month OPT extension F-1 student Completed STEM degree Currently participating in 12 month post- completion OPT Based on STEM degree Employed by U.S. employer in job directly related to degree

41 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 41 F-1 OPT - STEM Degree Extension Eligibility for 17 month OPT extension Employed by or accepted offer of employment with employer enrolled in CIS E-Verify program Properly maintain F-1 status

42 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 42 F-1 OPT - STEM Degree Extension Eligibility for 17 month OPT extension Where post-completion OPT expires while 17-month extension application is pending, if timely filed Employment authorization extended after current EAD expires Up to 180 days

43 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 43 F-1 OPT- Cap Gap “Cap-Gap” Gap in status between Student’s F-1 status and OPT employment authorization expiration –In current fiscal year Start of H-1B status –In next fiscal year

44 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 44 F-1 OPT- Cap Gap Cap-Gap relief for F-1 Students Where pending or approved H-1B petition For following fiscal year (with 10/1 start date) Automatically extends period of F-1 status and employment authorization Covers period between end of OPT/60-day departure period to start of following fiscal year H-1B petition approval start date

45 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 45 F-1 OPT- Cap Gap Cap-Gap relief for F-1 Students Automatic extension terminates if CIS rejects, denies, or revokes H-1B petition Cap-Gap benefits only if no violation of status

46 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 46 H-1B and F-1 OPT H-1B cap issues for F-1 OPT Recruitment Impact of future OPT expirations Strategic planning to avoid Delayed start new H-1B employees Interruptions to existing employees changing to H-1B status

47 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 47 H-1B and F-1 OPT Strategic Planning FY-2014 H-1B cap exhausted during initial 5-day lottery window on 4/5/13 When will the FY-2015 H-1B cap hit? Accelerate future H-1B Filings for F-1 OPT’s Identify potential employees not subject to H-1B cap

48 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 48 Visa Alternatives to H-1B & OPT TN – NAFTA Professional Canada Mexico H-1B1 – FTA Professional Chile Singapore

49 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 49 Visa Alternatives to H-1B & OPT E-1 – Treaty Trader E-2 – Treaty Investor E-3 – Professional Australia

50 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 50 Visa Alternatives to H-1B & OPT L-1 – Intracompany Transferee O-1 – Extraordinary Ability J-1 – Exchange Visitor

51 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 51 TN NAFTA Professional TN – NAFTA Professional Employer-specific U.S. Employers Canadian or Mexican Employers Limited to Canadians and Mexicans 67 specified professions

52 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 52 TN NAFTA Professional TN – NAFTA Professional Up to 3-year validity Admission/Extension up to 3 years Similar to H-1B, up to 3-year validity Indefinite extensions Unlike H-1B, 6-year maximum per worker

53 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 53 TN NAFTA Professional TN – NAFTA Professional Unlike H-1B, no “Dual Intent” allowed Required to overcome presumption of “Immigrant Intent”

54 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 54 TN NAFTA Professional TN – NAFTA Professional Canadians visa-exempt Apply directly at Border/Port of Entry (POE) –Pre-Flight Inspection (PFI) Change/Extend status in U.S. Mexicans require TN Visa Apply directly at U.S. embassy or consulate Change/Extend status in U.S.

55 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 55 H-1B1 FTA Professional H-1B1 – FTA Professional U.S.-Chile Free Trade Agreement Limit = 1,400 per FY U.S.-Singapore Free Trade Agreement Limit = 5,400 per FY “Specialty Occupation” requirement

56 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 56 H-1B1 FTA Professional H-1B1 – FTA Professional DOL Labor Condition Application (LCA) (same as H-1B) Up to 18 months validity Unlike H-1B, no “Dual Intent” allowed Required to overcome presumption of “Immigrant Intent” After 5 renewals, counts against H-1B cap

57 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 57 H-1B1 FTA Professional H-1B1 – FTA Professional Application Options Primary U.S. embassies and consulates abroad –No CIS approval required Alternative application to CIS if in U.S. –If depart U.S., must apply for U.S. embassy or consulate Change/Extend status in U.S.

58 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 58 E-1 Treaty Trader E-1 – Treaty Trader Employer-specific No prior employment abroad req’d (unlike L-1) Treaty must exist - U.S. & other country Majority ownership/control of U.S. entity At least 50% by treaty country nationals Excluding U.S. Citizens or Permanent Residents Direct and/or Indirect ownership 50/50 Split- Negative Control

59 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 59 E-1 Treaty Trader E-1 – Treaty Trader Sponsored employee must be citizen of treaty country With 50/50 ownership split U.S. entity can qualify for 2 different treaty countries Up to 5-year validity Indefinite extensions

60 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 60 E-1 Treaty Trader Application Options Primary U.S. embassies and consulates –No CIS approval required Alternative application to CIS if in U.S. –If depart U.S., must apply for U.S. embassy or consulate Change/Extend status in U.S.

61 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 61 E-1 Treaty Trader E-1 Special Requirements Trade Exchange, purchase, or sale of goods, services or technology Substantial No minimum dollar threshold Volume of trade Number of transactions Includes binding contracts Continued course of trade

62 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 62 E-1 Treaty Trader E-1 Special Requirements Principally with U.S. 50%+ of total volume of international trade of the U.S. entity must consist of trade between U.S. and treaty country Duties Executive, Supervisory Highly Specialized Essential Skills Not including “ordinarily skilled” workers

63 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 63 E-1 Treaty Trader EB-1 Multinational Executive/Manager Greencard Benefit Skip PERM/Labor Certification

64 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 64 E-2 Treaty Investor E-2 – Treaty Investor Employer-specific No prior employment abroad req’d (unlike L-1) Treaty must exist - U.S. & other country Majority ownership/control of U.S. entity At least 50% by treaty country nationals Excluding U.S. Citizens or Permanent Residents Direct and/or Indirect ownership 50/50 Split- Negative Control

65 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 65 E-2 Treaty Investor E-2 – Treaty Investor Sponsored employee must be citizen of treaty country With 50/50 ownership split U.S. entity can qualify for 2 different treaty countries Up to 5-year validity Indefinite extensions

66 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 66 E-2 Treaty Investor Application Options Primary U.S. embassies and consulates –No CIS approval required Alternative application to CIS if in U.S. –If depart U.S., must apply for U.S. embassy or consulate Change/Extend status in U.S.

67 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 67 E-2 Treaty Investor E-2 Special Requirements Active investment Irrevocable commitment of funds Actual active investment Not passive investment –Uncommitted funds in bank account –Stocks –Undeveloped land Land development vs. land investment

68 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 68 E-2 Treaty Investor E-2 Special Requirements “Substantial” investment No minimum dollar amount –Standards for new or existing business Proportionality Test –Measured against the type of business –Small and medium businesses –The lower the cost of the enterprise, the higher proportionally the investment must be to be considered “substantial”

69 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 69 E-2 Treaty Investor E-2 Special Requirements “Substantial” investment Investment in process –Start-up company Investor’s own resources “At risk” in the commercial sense

70 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 70 E-2 Treaty Investor E-2 Special Requirements Cannot be “marginal” To only support the investor & his family Create job opportunities for U.S. workers –Employees –Outside contractors Significant impact upon U.S.

71 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 71 E-2 Treaty Investor E-2 Special Requirements Essential role in enterprise Investor to develop and direct investment Executives, Supervisors, Specially Qualified Essential employee Not including “ordinarily skilled” workers

72 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 72 E-2 Treaty Investor EB-1 Multinational Executive/Manager Greencard Benefit Skip PERM/Labor Certification

73 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 73 E-3 Australian Specialty Occupation Australian nationals Limit = 10,500 per FY

74 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 74 E-3 Australian Specialty Occupation E-3 – Australian Specialty Occupation Application Options Primary U.S. embassies and consulates –No CIS approval required Alternative application to CIS if in U.S. –If depart U.S., must apply for U.S. embassy or consulate Change/Extend status in U.S.

75 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 75 E-3 Australian Specialty Occupation E-3 Special Requirements Employer-specific DOL Labor Condition Application (LCA) (same as H-1B) Must meet “specialty occupation” definition (same as H-1B) Requires bachelors degree or equivalent

76 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 76 E-3 Australian Specialty Occupation E-3 Special Requirements Up to 2-year maximum validity Indefinite extensions Intent to depart U.S. upon termination of E-3 status

77 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 77 L-1 Intracompany Transferee L-1 – Intracompany Transferee Employer-specific Sponsored employee must be employed abroad by foreign entity 1 continuous year out of prior 3 years In “Executive,” “Managerial,” or “Specialized Knowledge” position Transfer to U.S. to fill “Executive, ” “Managerial,” or “Specialized Knowledge” position

78 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 78 L-1 Intracompany Transferee L-1 – Intracompany Transferee Foreign entity must be related to U.S. company Same company Parent Subsidiary Affiliate

79 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 79 L-1 Intracompany Transferee L-1 – Intracompany Transferee Ownership/Control 50%+ ownership Effective control –With <50% ownership

80 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 80 L-1 Intracompany Transferee L-1 – Intracompany Transferee Qualifying Organization Doing business in U.S. and other country During whole period of transfer

81 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 81 L-1 Intracompany Transferee L-1 – Intracompany Transferee L-1A – Executives L-1A – Managers L-1B – Specialized Knowledge Personnel

82 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 82 L-1 Intracompany Transferee L-1 – Intracompany Transferee Validity L-1A 7-year H-1B/L-1 maximum per worker –Up to 3 years initially, up to 2-year extensions L-1B 5-year H-1B/L-1 maximum per worker –Up to 3 years initially, up to 2-year extensions Start-ups –Up to 1 year initially, up to 2 year extensions

83 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 83 L-1 Intracompany Transferee L-1 – Intracompany Transferee EB-1 Multinational Executive/Manager Greencard Benefit Skip PERM/Labor Certification

84 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 84 O-1 Extraordinary Ability O-1 – Extraordinary Ability Employer-specific Persons of “Extraordinary Ability” Sciences, Arts, Education, Business & Athletics Up to 3-year validity Indefinite extensions

85 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 85 O-1 Extraordinary Ability O-1 Criteria Receipt of a major internationally recognized award e.g., the Nobel Prize Receipt of 3/10 of other forms documentation

86 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 86 O-1 Extraordinary Ability O-1 – 3/10 Criteria Nationally/Intl’ly recognized prizes/awards for excellence in the field of endeavor Membership in associations in the field which require outstanding achievements as judged by recognized nat’l or int’l experts Published material about the person in professional or major trade publications or other major media

87 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 87 O-1 Extraordinary Ability O-1 – 3/10 Criteria Participation (on a panel or individually) as a judge of the work of others in the field Original scientific, scholastic, artistic, athletic or business-related contributions of major significance in the field Authorship of scholarly articles in the field in professional journals or major media

88 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 88 O-1 Extraordinary Ability O-1 – 3/10 Criteria Employment in a critical or essential capacity for organizations or establishments that have distinguished reputations High salary or other high remuneration in relation to others in the field Other comparable evidence

89 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 89 O-1 Extraordinary Ability O-1 – Extraordinary Ability EB-1 Extraordinary Ability Greencard Benefit Skip PERM/Labor Certification

90 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 90 J-1 Exchange Visitor J-1 – Exchange Visitor Multiple Designations including Trainee Intern Dept. of State jurisdiction Apply via DOS approved Program Sponsors

91 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 91 J-1 Exchange Visitor J-1 – Trainee Training not available in home country Up to 18-month maximum

92 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 92 J-1 Exchange Visitor J-1 – Trainee Requirements Degree or professional certificate from foreign post-secondary academic institution and at least 1 year of prior related work experience in the occupational field outside the U.S.; OR 5 years of work experience outside the U.S. in the occupational field in which training is sought

93 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 93 J-1 Exchange Visitor J-1 – Intern Up to 12-month maximum

94 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 94 J-1 Exchange Visitor J-1 – Intern Requirements Currently enrolled in and pursuing studies at a foreign degree or certificate-granting post-secondary academic institution; OR Graduated from such an institution no more than 12 months prior to the exchange visitor program start date

95 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 95 NIV Dependents Dependent Work Authorization Spouse Work Permits E-1 Treaty Trader E-2 Treaty Investor E-3 Australian Specialty Occupation L-1 Intracompany Transferee

96 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 96 NIV Dependents Dependent Work Authorization Spouse/Minor Child Work Permits J-1 Exchange Visitor –J-2 dependent’s employment must be for other purposes than to support principal J-1 –Employment will not be authorized if income is needed to support the principal J-1

97 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 97 Export Control Certifications Work Visa Export Control Certifications for “Release of Controlled Technology or Technical Data” “To Foreign Persons in the United States” Applicable H-1B, H-1B1, L-1, or O-1 NIV classifications

98 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 98 Export Control Certifications Federal law prohibits “export” of controlled technology and technical data to certain foreign persons in the U.S. without a license

99 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 99 Export Control Certifications “Technology” Information for the development, production, or use of “dual-use” products or software Technology or source code is considered “released” for export When made available to foreign persons

100 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 100 Export Control Certifications “Export” includes: Disclosure or transfer to foreign persons physically present in the U.S. Including oral or visual disclosure (i.e., technical specifications, plans, blueprints, etc.) “Deemed exports” to a foreign person’s country Even if the company does not engage in any other exporting

101 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 101 Export Control Certifications With respect to technology or technical data an Employer “will release or otherwise provide access to” the Employee, the Employer must certify that it has reviewed both the: Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”)

102 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 102 Export Control Certifications Employer must certify that it has determined that either: A license is not required to release the technology or technical data to the Employee, or A license is required and the Employer will prevent the Employee’s access to the controlled technology or technical data until and unless the Employer has received the required license or other authorization to release it to the Employee

103 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 103 “VIBE” Program Validation Instrument for Business Enterprise (“VIBE”) Program Tool designed to enhance CIS’ review of employment-based NIV and IV petitions Uses commercially available data to validate information about petitioning employers

104 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 104 “VIBE” Program CIS contract with Dun & Bradstreet Provide independent verification of employers’ information Match employer-submitted data and evidence with D&B data Contents of D&B database very important Especially for small companies and newly established companies

105 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 105 “VIBE” Program Verification of Employers’ Information Business activities Type of business (NAICS code), trade payment information and status (active or inactive) Financial standing Including sales volume and credit standing Number of employees Onsite and globally

106 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 106 “VIBE” Program Verification of Employers’ Information Relationships with other entities Including foreign affiliates Status Single entity, branch, subsidiary, or HQ Ownership and legal status LLC, partnership, corporation

107 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 107 “VIBE” Program Verification of Employers’ Information Company executives Date of establishment as business entity Current physical address

108 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 108 PERM Greencard Sponsorship Permanent Residence Sponsorship PERM Application E-filed with DOL

109 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 109 PERM Greencard Sponsorship Permanent Residence Sponsorship Based upon shortage of qualified U.S. workers In metropolitan area of job location Willing to work for the “prevailing wage” Requires attempted job recruitment Employer must offer prevailing wage

110 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 110 PERM Greencard Sponsorship PERM Prevailing Wage Each job classification 4 levels Specific DOL criteria impact wage level

111 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 111 PERM Greencard Sponsorship PERM Prevailing Wage Process Prevailing Wage Request e-filed with DOL State Workforce Agency no longer responsible for Prevailing Wage Determinations

112 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 112 PERM Greencard Sponsorship PERM Process Pre-filing recruitment and compliance days average Electronic Filing with DOL Decisions expected within approx. 8+ months (if no DOL Audit) DOL Audit Decisions expected within approx. 14+ months

113 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 113 PERM Greencard Sponsorship PERM Requirements Prior employer recruitment Attestations Compliance Non-discrimination Strict recruitment requirements

114 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 114 PERM Greencard Sponsorship PERM Requirements DOL audits Average 40% audit rate While PERM Application pending Up to 5 years after PERM Application filing

115 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 115 PERM Greencard Sponsorship Employer Recruitment Recruitment Window 180 days to 30 days before filing Professional positions 2 Sunday ads in general circulation newspaper Or 1 Sunday ad in newspaper and 1 ad in professional journal

116 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 116 PERM Greencard Sponsorship Employer Recruitment 3 out of 10 alternate forms of recruitment 1. Job Fair 2. On-Campus Recruiting 3. Employer Website 4. Trade or Professional Organization 5. Job Search Website

117 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 117 PERM Greencard Sponsorship Employer Recruitment 3 out of 10 alternate forms of recruitment 6. Private Employment Firm 7. Employee Referral Program 8. Campus Placement Office 9. Local or Ethnic Newspaper 10. Radio or TV ads 1 of above can be within 30 days of filing

118 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 118 PERM Greencard Sponsorship Other Requirements Job Order with State Workforce Agency Internal Posting at Employer Site In House Media Posting

119 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 119 PERM Greencard Sponsorship Other Requirements Must interview qualified applicants Can only reject for lawful, job-related reasons Prepare and retain recruitment report No restrictive requirements unless justified by business necessity

120 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 120 PERM Greencard Sponsorship DOL Audit Must maintain Audit File for 5 years, including: Recruitment report justifying those disqualified Proof of business necessity Proof of advertising and alternate forms of recruitment Prevailing Wage Determination Posting Notice

121 January 28, 2014 Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 121 Legal Disclaimer Facts of individual cases differ The information provided herein is general in nature and should not be relied upon Consult with an experienced immigration attorney with regard to specific cases


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