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Employment Options for International Students Before and After Graduation Presented by: Matthew Martinez, Esq. Jared Leung, Esq. Kathy Bunch, Immigration.

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Presentation on theme: "Employment Options for International Students Before and After Graduation Presented by: Matthew Martinez, Esq. Jared Leung, Esq. Kathy Bunch, Immigration."— Presentation transcript:

1 Employment Options for International Students Before and After Graduation Presented by: Matthew Martinez, Esq. Jared Leung, Esq. Kathy Bunch, Immigration Paralegal

2 LEGAL DISCLAIMER The information contained herein is for informational purposes only and is not legal advice. No attorney-client relationship is created by viewing this site. While we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Please do not send us any information about any matter that may involve you until you have called us for the purpose of letting us know the identities of the parties involved to conduct a conflicts check, and until you receive a written statement from us that we are able to represent you. No attorney-client relationship is created if you send us email and any information you send to us is neither privileged nor subject to confidentiality.

3 Session Goals Visa, Status, & I-94 Maintain Valid F-1 Status Work Authorization for F-1 Students Work Authorization for J-1 Students H-1B And TN Work Status Overview of Green Card Process Q&A 3

4 What is a “Visa”? A visa grants the holder permission to enter the U.S. 4

5 What is an “I-94”? The I-94 card controls the terms of stay and serves as evidence of lawful status. 5

6 Maintain Valid F-1 Status Work closely with DSO (Designated School Official) Maintain full course of study: –Undergraduate students: 12 hours or credits per semester –Graduate students: certified by DSO Reduced course load possible, must see DSO first –One-time only, unless for medical reasons –Cannot reduce to less than 50% of full course load 6

7 Maintain Valid F-1 Status (Cont’d.) Cannot work without proper authorization Understand your travel rules: proper visa and endorsed I-20 Be very careful with crimes and misdemeanors: DUI, underage drinking, shoplifting, and owning firearms Allowed to stay in U.S. for duration of program (“D/S”) 7

8 Work Authorization for F-1 Students 8 On-Campus Employment Curricular Practical Training (CPT) Optional Practical Training (OPT)

9 On-Campus Employment 9 First academic year prohibition not applicable Work needs to be either: –On school campus, including commercial business, such as bookstore or cafeteria –Off campus locations educationally affiliated with the school 20 hours / week during school year Full time okay when school is not in session

10 Curricular Practical Training (CPT) Permitted before graduation Must be authorized by DSO on I-20 Must be an integral part of an established curriculum Not allowed during first year of study, except in the case of graduate students who require immediate participation of CPT as part of study If used 12 months or more full time CPT, student is disqualified for any post-graduation OPT, but time spent on CPT for less than 12 months does not reduce OPT eligible time 10

11 Optional Practical Training (OPT) Must be directly related to field of study Valid for 12 months Okay for both pre- and post- graduation use, but time spent on pre-graduation OPT reduces eligible time for post-graduation OPT Apply up to 90 days before graduation and up to 60 days after graduation – I-765 must be submitted to USCIS within 60 days after DSO recommendation Careful planning with international travel during OPT 11

12 Quick Quizzes True or False? I can work on-campus as a T.A. under “on-campus” work rule I can also work in the construction company that is building a new campus building as a construction worker I can have 11 months and 2 weeks of full time CPT, and still apply for 12 months of OPT I don’t have a job now, so I cannot apply for OPT I can work at Best Buy selling computers on my OPT because my major is computer engineering 12

13 Extension of OPT OPT Extension possible for additional 17 months for STEM fields (science, technology, engineering and mathematics) Examples of STEM fields: –Computer Science Applications –Actuarial Science –Engineering –Engineering Technologies –Biological and Biomedical Sciences –Mathematics and Statistics –Military Technologies –Physical Sciences –Science Technologies –Medical Scientist 13

14 STEM OPT and E-Verify STEM extension permitted only if students work for employers enrolled in E-Verify. Employer’s E-Verify ID# required for STEM OPT extension. E-Verify: Internet-based system operated by DHS in partnership with SSA. Electronically compares information contained on Form I- 9 with records contained in DHS and SSA databases. New EAD required for STEM extension 14

15 OPT Unemployment Time 90-day limit for first 12 months of OPT. STEM OPT extension: 30 additional days; maximum 120 days of unemployment for the entire 29 months. OPT work must be at least 20 hours per week. 15

16 OPT Reporting Requirements F-1 must report change in employment to DSO – ASAP or within 10 business days. Changes: new job, change of employer, multiple “short-term gigs,” self-employment, change of address, or unemployed for more than 10 days. If there is a change of employer the F-1 must report to the DSO and confirm new employer’s E-Verify participation 16

17 Work Authorization for J-1 Students Academic Training: Exchange visitors that intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training Allowed to stay in U.S. for duration of program May be subject to a 2-year foreign residency requirement; may obtain waiver for it 17

18 Work Authorization for J-1 Students (Cont’d.) Undergraduate and Pre-doctorate: Can engage in Academic Training for up to 18 months, or the length of time you have engaged in coursework, whichever is less Cannot begin your program with Academic Training Must begin Academic Training within 30 days of end of program Does not require an EAD card – Must have letter of approval from dean or advisor and a letter from RO (Responsible Officer) – The letter from RO serves in place of an EAD 18

19 Questions that you may be thinking Can I have two part-time jobs for post-graduate OPT? Do I need sponsorship from a potential employer if I have an OPT EAD? Am I eligible for the 17-months extension if my field is not in STEM? Can I travel back to my home country or spend a weekend in Mexico during my OPT time? 19

20 H-1B Specialty Occupations 20

21 H-1B Basics Must be in a “specialty occupation” – position which requires at least a bachelor’s degree in a specific field Beneficiary must have that degree or equivalent. Degree must be in field of study relevant to occupation. Specialized Occupations may include: chemist, biologist, engineer, physicist, software developer, systems analyst, accountant, economist, architect. 21

22 Valid for total of 6 years (each petition max of 3) “Regular” H-1B cap/quota: 65,000 new H- 1Bs issued each fiscal year (10/01 to 09/30). “Master’s” H-1B cap/quota: 20,000 for holders of U.S. master’s degree or above. When this is used up, people with U.S. master’s degree will use the “regular” quota Exempt from cap: extensions, change of employer, exempt employers (universities, non-profits affiliated with universities, research organizations) H-1B Basics 22

23 F-1 OPT “Cap Gap” Extension Gap: time between end of F-1 OPT status and beginning of H-1B status on October 1st. F-1 OPT “Cap-Gap” Extension: F-1 must be beneficiary of timely filed H-1B petition with 10/01 start date, and change of status to H-1B DSO must issue I-20 to cover “Cap Gap” and update SEVIS OPT work authorization will be automatically extended to bridge gap to 9/30. H-1B status will begin 10/01. Do not travel internationally during “Cap- Gap” time 23

24 Hypothetical 1 Natasha Romanova graduated in May 2012 and began working on OPT EAD, which is valid from 05/01/2012 to 04/30/2013. Company A files H-1B status for Natasha on 04/01/2013. –Can Natasha remain in the U.S. after 04/30/2013 when her OPT EAD expires? –Can Natasha keep working after 04/30/2013? –Does Natasha need to apply for a new EAD, assuming that she is eligible under STEM? –Can Natasha travel out of the U.S. before 10/01/2013? 24

25 Hypothetical 2 Tony Stark graduated in December 2011 and began working on OPT EAD, which is valid from 01/01/2012 to 12/31/2012. He is eligible for STEM extension because his major is robotic engineering. He was told that he should “save” his H1B time, so he applied for STEM extension timely, and has a new STEM EAD valid from 01/01/2013 to 05/31/2014. When should he apply for H-1B? If he applied for H1B on 04/01/2014, will the cap gap protection help him? If he applied for H1B on 06/15/2014, which is after his EAD expires but within the 60-day grace period, does he benefit from the cap gap protection? Helpful Tip: Leaving some of your OPT time on the table is a small price to be sure to get an H-1B. The cap gap cannot always bridge the gap. 25

26 Other Important H-1B Issues Employer must pay “prevailing wage” as determined by DOL. Regulations state that employer is responsible for all legal fees and costs (filing fees, legal fees). No labor market test or need to prove U.S. worker shortage. Return transportation cost. Material changes in employer or position may necessitate amended or new petition. 26

27 TN (NAFTA) Status A Mexican or Canadian national in a listed profession may enter the U.S. for up to three years to work for a U.S. employer in that profession –NAFTA Professions include: Architects Accountants Systems Analysts Engineers Lawyers Scientists in most disciplines Graphic Artists Management Consultants Hotel Managers Professors Others 27

28 TN (NAFTA) Status Canadian nationals–border adjudication (Canadians are visa- exempt). Mexican nationals apply at consular posts. May also file petitions if in the U.S. TN’s must have temporary, nonimmigrant intent (but filing I- 140 is not a bar to extension). No prevailing wage requirement. Need relevant degree (experience relevant for Management Consultant, Scientific Technician). 28

29 Overview of “Green Card” Options 29

30 Employment Based Immigration Most classifications have built- in protections for American labor. Generally requires strong showing that the foreign worker is one of the best in the field or that there are no qualified United States workers available to fill the position. If the latter applies, DOL must make a determination and certify that there are not sufficient United States workers who are able, willing, qualified, and available for the position being offered. This processes is called Labor Certification – PERM (Program Electronic Review Management process). 30

31 Employment Based Preference Categories 31 EB1: Individuals with extraordinary ability, outstanding researcher EB2: Individuals in occupations which require the person has at least a Master’s degree or Bachelor’s degree plus 5 years of progressive experience in the same field EB3: Professional positions requiring at least a Bachelor’s degree Visa Bulletin: All Other Countries Mainland ChinaIndiaMexicoPhilippines EB-1CCCCC EB-2C15JAN0801SEP04CC EB-3 (Professional) 15MAR0715NOV0615NOV0215MAR0722AUG06 EB-3 (skilled workers) 15MAR0701 JUL0308NOV0215MAR0722AUG06

32 Employment Based Immigration I-140 is filed by employer and can be filed at any time. I-485 is filed by employee and can only be filed when employee's Priority Date is current. Employee receives work permit and travel permit (Advance Parole) within 90 days. Once I-140 is approved, and once I-485 has been pending for 6 months, employee is “portable” and may change employers. 32 Labor Certification (PERM) I-140 Immigrant Petition I-485 application (AOS) 32

33 Hypothetical Timeline 1 Steve Rogers graduated in December 2011 with a Master’s in genetic mutation. His EAD was valid from 01/01/2012 to 12/31/2012. He did not apply for STEM EAD extension, but he applied for H1B through his employer, InGen. His H1B was approved for 10/01/2012 to 09/30/2015. InGen really likes Steve and wants to help him get his green card. InGen starts the labor certification process in Jan 2013 and the application should be approved by 08/31/2013 Steve is from the UK and will be in “EB-2” category, and there is no green card quota backlog. He submits the I-140 and I-485 applications concurrently. All of them are approved in 6 months, and he receives his green card in March 2014 33

34 Hypothetical Timeline 2 Thor Odinson graduated in December 2011 with a Master’s in meteorology. His EAD was valid from 01/01/2012 to 12/31/2012. He did not apply for STEM EAD extension, but he applied for H1B through his employer, Thunderbird Tech. His H1B was approved for 10/01/2012 to 09/30/2015. Thunderbird really likes Thor and wants to help him get his green card. Thunderbird starts the labor certification process in Jan 2013 and the application should be approved by 08/31/2013 Thor is from India and will be in “EB-2” category. However, there is a backlog for EB-2 Indian Nationals for 8 years. Although he can submit the I-140 immediately after the labor cert is approved, he cannot submit the I-485 applications until his priority date becomes current, or approximately 2021 34

35 QUESTIONS 35 Matthew Martinez 602-916-5446 Jared Leung 602-916-5315 Kathy Bunch 602-916-5716 Visit our blog: Follow us on Twitter: @phximmigration 35

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