1. Immigration Visas After Graduation Binghamton University March 21, 2012 Miller Mayer, LLP 202 E. State Street Ithaca, NY 14850 (607) 273-4200 www.millermayer.com www.millermayer.com

2. Overview  Nonimmigrant visas  Immigrant visas

3. Nonimmigrant Visa Categories Visa CategoriesVisa Categories ADiplomats ADiplomats BVisitors (business/pleasure) BVisitors (business/pleasure) CTransit CTransit DCrewman DCrewman ETreaty trader/investors ETreaty trader/investors FAcademic students FAcademic students GInternational Organization GInternational Organization HTemporary workers HTemporary workers IJournalists/Media IJournalists/Media JExchange visitors JExchange visitors KFiancés/fiancées of KFiancés/fiancées of US citizens LIntra-company transferees LIntra-company transferees MVocational students MVocational students NParents or children of special immigrants NParents or children of special immigrants OPersons of extraordinary ability OPersons of extraordinary ability PAthletes or entertainers PAthletes or entertainers QInternational cultural exchange visitors QInternational cultural exchange visitors RReligious workers RReligious workers SFederal witnesses (sneaky snitches) SFederal witnesses (sneaky snitches) TTrafficking of persons victims TTrafficking of persons victims TNNAFTA professionals (Mexico and Canada) TNNAFTA professionals (Mexico and Canada) UCertain crime victims UCertain crime victims VCertain spouses/children waiting for green cards VCertain spouses/children waiting for green cards

4. H-1B Nonimmigrant Visas Nonimmigrant VisasNonimmigrant Visas  Employer sponsored for up to 6 years in a “specialty occupation”  3 Requirements: Job must require a Bachelor’s degree or higher in specific fieldJob must require a Bachelor’s degree or higher in specific field Beneficiary must have at least the relevant Bachelor’s degree or equivalentBeneficiary must have at least the relevant Bachelor’s degree or equivalent Employer must pay a required wageEmployer must pay a required wage

5. Procedure  File Labor Condition Application (LCA) -- Employer must pay higher of prevailing or actual wage; no adverse work conditions for US workers  File H-1B petition (Form I-129)  Overall processing time frame: 3-4 months normally3-4 months normally Premium processing possibility: 2 weeksPremium processing possibility: 2 weeks

6. Advantages of H-1B:  Duration: 6 year maximum6 year maximum 1 year stay outside U.S. refreshes 6 yrs1 year stay outside U.S. refreshes 6 yrs additional H extensions if green card started by end of 5 th yearadditional H extensions if green card started by end of 5 th year  Time to work toward green card  No advertising or test of the U.S. labor market -- but new large employer restrictions -- and new ITAR attestations  H-1B portability when change employers

7. Disadvantages of H-1B:  Tied to one employer  Not flexible like F-1 OPT  Paperwork, cost and delay  October 1 st start date + cap race  Fees: $825 - $3,550 filing fee $ 2,500 approx. legal fee

8. What is the H-1B “cap”? 65,000 per fiscal year 65,000 per fiscal year Of 65,000, 6,800 carved out for Chile and Singapore Of 65,000, 6,800 carved out for Chile and Singapore Separate 20,000 for graduates with U.S. master’s degree or higher Separate 20,000 for graduates with U.S. master’s degree or higher

9. Race for H cap visas  Quota year: October 1 to September 30  Apply Earliest: April 1 (6 months before)  Past years’ H-1B quota filled:  August 10, 2005 (FY 2006)  May 26, 2006 (FY 2007)  April 3, 2007 (FY 2008)  April 7, 2008 (FY 2009)  December 21, 2009 (FY 2010)  January 26, 2011 (FY 2011)  November 22, 2011 (FY 2012)  If needed, USCIS conducts “lottery” to select cases to be considered for H-1B approval

10. 20,000 U.S. Master’s Exemption Defining receipt of degree Defining receipt of degree “complete requirements for degree” Accredited U.S. institutions Accredited U.S. institutions All advanced degrees included All advanced degrees included Master’s cases considered under both caps Master’s cases considered under both caps

11. H-1B Cap Exemptions College/university employees College/university employees Related or affiliated nonprofit entities Related or affiliated nonprofit entities Nonprofit research organizations Nonprofit research organizations Government research organizations Government research organizations Prior cap H-1B holders Prior cap H-1B holders J-1 shortage area waivered doctors J-1 shortage area waivered doctors

12. Moving from Exempt to Cap Subject Employer Makes you subject to the cap Makes you subject to the cap Concurrent employment: consider part-time with each job Concurrent employment: consider part-time with each job Pre-October 1 portability Pre-October 1 portability Changing jobs between April 1 and October 1 Changing jobs between April 1 and October 1

13. Program end date 5/27/12 60-day grace period 7/26/12 You choose your OPT start date Example: 7/24/12 12 months OPT plus cap gap extension Apply up to 90 days before program end date and no later than 60 days after. 10/1/2013 Apply 2/27/12 OPT Timeline & Cap Gap Extension Apply for H 4/1/2013 EAD expires 7/23/2013

14. Good News Administrative Efforts 17-month OPT extension for PRIOR STEM degree H-4 work authorization for certain spouses DHS Reforms To Attract And Retain Highly Skilled Immigrants DHS Reforms To Attract And Retain Highly Skilled Immigrants Article: DHS Reforms To Attract And Retain Highly Skilled ImmigrantsDHS Reforms To Attract And Retain Highly Skilled Immigrants

15. P.L. 111-230 – Large Employers P.L. 111-230 certification that large company does not have 50% or more H-1B employees; if more than 50%, employer pays additional fees P.L. 111-230 certification that large company does not have 50% or more H-1B employees; if more than 50%, employer pays additional fees

16. ITAR -- Export Controls Attestation Regulations restrict release of certain “technology” and “technical data” to certain foreign nationals Employers of covered foreign nationals must get a license to release “technology” or “technical data”

17. H-1B Conclusion H-1B visas are the workhorse of the temporary worker visa categories, but are complex and must be done correctly to avoid immigration or Labor Department violations. Limited supply makes careful planning essential.

18. Fraud Site Visits and LCAs for New Worksites Employer Site visits: USCIS Office of Fraud Investigation USCIS Office of Fraud Investigation DOL LCA audits DOL LCA audits Foreign National inspections: U.S. consulate DS-160 visa processing U.S. consulate DS-160 visa processing CBP airport inspection: where do you work? Carry LCA for additional worksite CBP airport inspection: where do you work? Carry LCA for additional worksite Border patrol interior stop Border patrol interior stop compliance important, enforcement occurs

19. Other NIVs B/WT: bridging as a visitor B/WT: bridging as a visitorbridging as a visitorbridging as a visitor E-1/E-2: treaty traders/investors E-1/E-2: treaty traders/investorstreaty traders/investorstreaty traders/investors E-3: only for Australians E-3: only for Australians F/J: back to school options F/J: back to school optionsback to school optionsback to school options J: professional trainees J: professional traineesprofessional traineesprofessional trainees H-3: Up to two years of on-the-job training H-3: Up to two years of on-the-job trainingUp to two years of on-the-job trainingUp to two years of on-the-job training L-1: move out of U.S. for a year L-1: move out of U.S. for a yearmove out of U.S. for a yearmove out of U.S. for a year L-2: derivative spouses with work authorization O: Extraordinary ability aliens (researchers and artists) O: Extraordinary ability aliens (researchers and artists)Extraordinary ability aliensExtraordinary ability aliens

20.  E-3: only for Australians 2 year renewable, indefinitely2 year renewable, indefinitely 10,500 annual quota10,500 annual quota LCA only, consular filingLCA only, consular filing Spouse and child work permitsSpouse and child work permits  L-1: multinational transferee multinational transfereemultinational transferee 12 months foreign employment12 months foreign employment Executive, manager, specialized knowledgeExecutive, manager, specialized knowledge Lower cost, green card, harsh adjudicationsLower cost, green card, harsh adjudications Spouse work permitsSpouse work permits Other NIVs continued

21. E-1/E-2: treaty traders/investors E-1/E-2: treaty traders/investorstreaty traders/investorstreaty traders/investors Start/buy a company Start/buy a company 50+% foreign owned 50+% foreign owned Lead, direct, manage Lead, direct, manage No China, India; few Middle Eastern or African countries No China, India; few Middle Eastern or African countries Os and Ps: extraordinary ability or performer Os and Ps: extraordinary ability or performer extraordinary ability or performer extraordinary ability or performer Portfolio, c.v., reviews and publications Portfolio, c.v., reviews and publications 3 of 8 criteria 3 of 8 criteria Other NIVs continued (no quota, no maximum stay)

22. Eight criteria for classification: 1.Receipt of a nationally or internationally recognized prize for achievement in field 2.Membership in associations in field that require “outstanding achievement” of their members 3.Material published about applicant in major trade publications or other major media 4.Applicant serves as a judge of others in field either individually or on a panel 5.Original, scientific, scholarly, artistic, athletic, or business- related contributions of major significance in field 6.Authorship of scholarly articles in field 7.Performing a critical or leading role for organizations that have a distinguished reputation 8.Commanding a high salary in field O-1 Criteria

23. Mexican/ Canadian citizens Mexican/ Canadian citizens Unlimited extensions Unlimited extensions Residence outside U.S. Residence outside U.S. Up to 3 years in job offer in listed occupation Up to 3 years in job offer in listed occupation Bachelor’s degree/license in that field Bachelor’s degree/license in that field See chapter 16 of NAFTA and 8 C.F.R. § 216.4 See chapter 16 of NAFTA and 8 C.F.R. § 216.4 TNs

24. Accountant Accountant Architect Architect College/university professor College/university professor Computer systems analyst Computer systems analyst Engineer Engineer Graphic designer Graphic designer Management consultant Management consultant Occupational therapist Occupational therapist Registered nurse Registered nurse Scientific technician Scientific technician Social worker Social worker Urban planner Urban planner Common TN Occupations

25. Bring to U.S. port of entry: Bring to U.S. port of entry: Proof of citizenshipProof of citizenship Statement from employer stating the qualifications of the positionStatement from employer stating the qualifications of the position Evidence of applicant’s qualifications for that positionEvidence of applicant’s qualifications for that position Filing feeFiling fee Approved applicants can leave and re-enter the U.S. with their endorsed multiple entry I- 94 cards Approved applicants can leave and re-enter the U.S. with their endorsed multiple entry I- 94 cards TN Procedure for Canadians

26. How Can I Become a US Permanent Resident? Family-based Family-based Employment-based Employment-based Diversity Lottery Diversity Lottery

27. Family Relationship Basis Immediate Relatives –children, spouses, or parents of UScitizens (no limit per year) Immediate Relatives –children, spouses, or parents of UScitizens (no limit per year) Unmarried sons & daughters of US citizens (23,400 visas per year) Unmarried sons & daughters of US citizens (23,400 visas per year) Spouses/minor children & unmarried sons and daughters of US permanent residents (114,200 visas per year) Spouses/minor children & unmarried sons and daughters of US permanent residents (114,200 visas per year) Married sons and daughters of US citizens (23,400 visas per year) Married sons and daughters of US citizens (23,400 visas per year) Brothers and sisters of US citizens (65,000 visas per year) Brothers and sisters of US citizens (65,000 visas per year) US citizen son or daughter sponsor must be age 21 or over US citizen son or daughter sponsor must be age 21 or over

28. Employment Basis Priority Workers (EB-1) Priority Workers (EB-1) 40,000 visas per year Extraordinary ability (self-sponsor) Extraordinary ability (self-sponsor) Outstanding professors & researchers (tenure-track position) Outstanding professors & researchers (tenure-track position) Business executives & managers (no labor certification required) Business executives & managers (no labor certification required) Advanced degree holders (EB-2) Advanced degree holders (EB-2) 40,000 visas per year Professionals with advanced degrees or exceptional ability in sciences, arts & business (labor certification required) Professionals with advanced degrees or exceptional ability in sciences, arts & business (labor certification required) National Interest Waiver of labor certification requirement National Interest Waiver of labor certification requirement Skilled & unskilled workers (EB-3) Skilled & unskilled workers (EB-3) 40,000 visas per year Skilled workers in short supply Skilled workers in short supply Professionals with bachelor’s degree Professionals with bachelor’s degree Unskilled workers in short supply (all require labor certification) Unskilled workers in short supply (all require labor certification) Special Immigrants (EB-4) 10,000 visas per year Religious workers; certain US govt. employees; Panama Canal employees; plus certain dependent juveniles Religious workers; certain US govt. employees; Panama Canal employees; plus certain dependent juveniles Investors (EB-5) Investors (EB-5) 10,000 visas per year Must invest between $500,000 and $1 million Must invest between $500,000 and $1 million Must create at least 10 full-time jobs Must create at least 10 full-time jobs

29. PERM (DOL) I-140 Immigrant Visa Petition (USCIS) Adjustment of Status AOS (USCIS) Consular Processing Overseas (DOS) Most Common Way to Get an Employment-Based Green Card (for EB-2, EB-3)

30. PERM Labor Certification  A certification from the Department of Labor that a particular position at a particular company is “open” because no qualified U.S. workers are available  Employer must complete 5 kinds of recruitment, show ability to pay wage and prepare audit file Electronic filing with US DOL Electronic filing with US DOL Upon certification, must file I-140 within 180 days Upon certification, must file I-140 within 180 days Final step: may have to wait for some EB-2, EB-3s Final step: may have to wait for some EB-2, EB-3s

31.  Three types of EB-1 priority workers: 1.EB-1-1 Extraordinary ability aliens Extraordinary ability aliensExtraordinary ability aliens 2.EB-1-2 Outstanding professors and researchers Outstanding professors and researchersOutstanding professors and researchers 3.EB-1-3 Multinational executives and managers Multinational executives and managersMultinational executives and managers  EB-2 (Advanced degrees, Exceptional ability) with “national interest” waiver Advanced degrees, Exceptional abilityAdvanced degrees, Exceptional ability I-140 Green Card Petitions (without PERM Labor Certification)

32. “Priority date” is “current” “Priority date” is “current” EB-3 category and India and China in EB-2 category: EB-3 category and India and China in EB-2 category: It could take five years or longer to get an immigrant visa, even if you start today! It could take five years or longer to get an immigrant visa, even if you start today! Read our bi-monthly newsletters for up to date news information Read our bi-monthly newsletters for up to date news informationnewsletters Green Card Processing Backlogs

33. Quota Delay: Wait for Priority Date to File Adjustment of Status (April 2012) Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1stCCCCC 2ndC01MAY10 CC 3rd08APR0601MAR0501SEP0208APR06 Other Workers08APR0622APR0301SEP0208APR06 4thCCCCC Certain Religious Workers CCCCC 5thCCCCC Targeted Employment Areas/ Regional Centers CCCCC 5th Pilot Programs CCCCC

34.  Reserved for immigrants who invest in and manage U.S. companies that benefit U.S. economy and create or save at least 10 fulltime jobs  $1 million normally required to invest; can be $500,000 in rural or poor areas  Get conditional residence for two years; then must prove investment worked to get condition removed  Law allows up to 10,000 EB-5 green cards per year  No quota backlogs EB-5 Immigrant Investors Immigrant InvestorsImmigrant Investors

35. Sources of Information on Immigration Law  Citizenship & Immigration Services Citizenship & Immigration Services Citizenship & Immigration Services –Statutes & regulations –Forms –Procedures and instructions –Contact information –Processing times

36. Sources of Information on Immigration Law U.S. Department of State U.S. Department of State U.S. Department of State U.S. Department of State –Links to embassies & consulates worldwide –Application procedures and consulate closings –Wardens messages and travel advisories –Public announcements –Derivative citizenship and renunciation –Visa Bulletin regarding priority dates

37. Parting Thoughts Realistic assessment is important Realistic assessment is important Planning ahead is key Planning ahead is key Get to know employers soon Get to know employers soon Think of alternative and creative employment options Think of alternative and creative employment options

38. Need help with immigration matters? Interested in an immigration consultation? Interested in an immigration consultation?immigration consultationimmigration consultation Sign up for a free monthly immigration newsletter Sign up for a free monthly immigration newsletterfree monthly immigration newsletterfree monthly immigration newsletter Contact: Contact: Miller Mayer, LLP 202 E. State Street, Suite 700 Ithaca, NY 14850 (607) 273-4200 info@millermayer.com

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40. Questions?