1. Fragomen, Del Rey, Bernsen & Loewy, LLP
Immigration Seminar
New York, NY
April 15, 2010
Fragomen, Del Rey, Bernsen & Loewy, LLP

2. Freddi Weintraub, Partner
Fragomen, Del Rey, Bernsen & Loewy, LLP
7 Hanover Square
New York, NY
(212) TEL
(212) FAX
Fragomen, Del Rey, Bernsen & Loewy, LLP

3. Susanah Wade Client Services Manager
Fragomen, Del Rey, Bernsen & Loewy, LLP
7 Hanover Square
New York, NY
(212) TEL
(212) FAX
Fragomen, Del Rey, Bernsen & Loewy, LLP

4. Nonimmigrant and Immigrant Visas
Nonimmigrant visas
- Temporary stay in the US
Immigrant Visas
- Permanent Resident Status in US
Fragomen, Del Rey, Bernsen & Loewy, LLP

5. Most Common Business Nonimmigrant Categories
B-1 Visitors for Business
E-1/E-2 Treaty Traders/Investors
E-3 Australian Nationals
F-1 Foreign Students – Practical Training Provisions
H Temporary Worker
J-1 Exchange Visitor
L-1 Intracompany Transferee
O-1 Persons of Extraordinary Ability
TN Trade NAFTA – Canadian and Mexican Professionals
Fragomen, Del Rey, Bernsen & Loewy, LLP

6. Fragomen, Del Rey, Bernsen & Loewy, LLP
PREMIUM PROCESSING
EXPEDITED PROCESSING – 15 CALENDAR DAYS TO ADJUDICATE PETITION
E-1, E-2
H-1B, H-3
L-1
O-1, O-2
P-1, P-2, P-3
Q-1
R-1 TN
Fragomen, Del Rey, Bernsen & Loewy, LLP

7. B-1 Visitors for Business
Foreign national engaging in short-term business on behalf of overseas employer
B-1 in Lieu of H-1B or H-3
Foreign nationals otherwise qualifying for H-1B or H-3 nonimmigrant status coming to perform
H-1B services or participate in an H-3 training program, and who will receive no salary in the US
Fragomen, Del Rey, Bernsen & Loewy, LLP

8. E-1/E-2 Treaty Traders and Investors
Transfer of managerial or essentially skilled employees to the US
Crucial mechanism is existence of treaty or commerce and navigation or bilateral investment treaty between the US and country of nationality of transferring employers
Employee must possess same nationality as the company
Fragomen, Del Rey, Bernsen & Loewy, LLP

9. E-1/E-2 Treaty Traders and Investors Cont’d
E-1 appropriate where enterprise in US is engaged in substantial trade with treaty country and the company is majority owned by treaty nationals
E-2 appropriate where the US company is majority owned by treaty nationals and a substantial, active investment has been made
Initiate visa application in US through change of status or at US consulate abroad
Company must be registered at consulate
Spouses eligible for employment authorization
Fragomen, Del Rey, Bernsen & Loewy, LLP

10. E-3 Australian Nationals
Requirements similar to H-1B visa for professional workers
Specialty occupation requiring service of an Australian individual with at least US Bachelor's degree or equivalent in field related to job
Labor Condition Application filing with Department of Labor
Fragomen, Del Rey, Bernsen & Loewy, LLP

11. E-3 Australian Nationals Cont’d
Change of status petition filed at USCIS Service Center
Approval Notice (Form I-797) issued upon approval – present at consulate abroad to obtain visa
Visa application directly at US consulate abroad as long as pre-arranged job offer exists in the US
Fragomen, Del Rey, Bernsen & Loewy, LLP

12. E-3 Australian Nationals Cont’d
Visa valid for 2 years
Renew indefinitely
10,500 visas available each year
Spouses/children accompanying or joining E-3 applicant not subject to numerical limitation and need not be Australian nationals
Dependent spouses eligible for Employment Authorization
Fragomen, Del Rey, Bernsen & Loewy, LLP

13. Fragomen, Del Rey, Bernsen & Loewy, LLP
F-1 Visa
Full-time matriculated student at approved school
“Optional Practical Training:” pre- or post-graduation
12 months; no more than 20 hrs/week during school year, full-time during vacations
need employment authorization document (EAD);
not tied to particular employer
17 Month Stem Extension with a STEM degree. List located at
“Curricular” practical training if part of educational program
Fragomen, Del Rey, Bernsen & Loewy, LLP

14. H-1B VISA - Specialty Occupation
Entry Level Requirement Bachelor’s Degree in a specific related field, or equivalent, at a minimum
3 for 1 Rule -- 3 years of experience equals one year of university-level studies
Prevailing wage requirement – 100%
Initial approval: 3 years. 6-year max. stay w/extension
Extensions beyond 6 years in limited circumstances
Concurrent H status for more than 1 employer
Fragomen, Del Rey, Bernsen & Loewy, LLP

15. Fragomen, Del Rey, Bernsen & Loewy, LLP
H-1B Visa (Cont’d)
Annual cap ceiling of 65,000
Carve outs of 1,400 for Chile and 5,400 for Singapore
Additional 20,000 for foreign nationals with US earned advanced degrees (Master’s or higher)
Exemption from cap:
Change of employer H petitions – exception if changing from exempt to non exempt organization
Institution of higher education;
Nonprofit affiliated with institution of higher education;
Nonprofit research organization or governmental research organization;
Previously granted H-1B status within the past 6 years.
Fragomen, Del Rey, Bernsen & Loewy, LLP

16. Fragomen, Del Rey, Bernsen & Loewy, LLP
H-1B Portability
H-1B employees can begin new employment upon filing of a new H-1B by a new employer if:
Foreign national has been lawfully admitted to US
Foreign national has not been employed without authorization subsequent to his/her lawful admission
A non frivolous H-1B is being filed for the new employment before the expiration of foreign national's current status
Fragomen, Del Rey, Bernsen & Loewy, LLP

17. Fragomen, Del Rey, Bernsen & Loewy, LLP
H-1B Terms of Stay
Initial 3 years may be granted with extension of 3 years for maximum of 6 years
Must reside abroad for 1 year before eligible for new H-1B except where:
I-140 Immigrant Petition or Labor Certification pending and 365 days have elapsed since permanent residency process was initiated. Extension in 1 year increments until final decision on permanent residency process
Per country limitation (retrogression) prevents foreign national from applying for immigrant visa. Extensions beyond 6 year limit available in 3 year increments until I-485 is adjudicated. Must have approved I-140
Fragomen, Del Rey, Bernsen & Loewy, LLP

18. H-1B Terms of Stay Cont’d
Time spent in L-1 status counts against H-1 maximum period of stay
Dependents receive H-4 visas and not permitted to work in US
Time spent in H-4 or L-2 status does not count against H-1 maximum period of stay
Fragomen, Del Rey, Bernsen & Loewy, LLP

19. H-1B Visa - Government Fees
Filing fee - $320
Training fee - $1,500 (more than 25 full time workers) $750 (less than 25 full time workers) - must be paid by employer, and cannot be charged to foreign national
When seeking initial H-1B
When seeking first extension
When seeking change of employers
Academic institutions are exempt
Anti-fraud fee - $500
Supplemental “Premium Processing” fee - $1,000 if 15 day processing is desired (otherwise, typical processing time of wks.)
Fragomen, Del Rey, Bernsen & Loewy, LLP

20. Fragomen, Del Rey, Bernsen & Loewy, LLP
H-3 Training Visa
Designed for participation in established company training program
Training cannot be conducted or engaged in with the intention of eventual employment in the United States
Foreign national cannot be employed to engage in productive employment that is other than incidental to the training program
Fragomen, Del Rey, Bernsen & Loewy, LLP

21. Fragomen, Del Rey, Bernsen & Loewy, LLP
J-1 Training Visa
Exchange visitor program/maintain nonimmigrant intent
Categories: trainees, interns, research scholars, students
Requires detailed training program submitted to sponsor organization together with application form
Trainee- foreign degree and 1 year of work experience outside the US or 5 years work experience outside the US
Intern - Currently enrolled in academic institution outside the U.S. OR graduated from such institution within 12 months prior to the start date
Fragomen, Del Rey, Bernsen & Loewy, LLP

22. J-1 Training Visa Cont’d
Some J-Visa holders must return to home country for at least 2 years after completion of program
Foreign medical graduates
If program funded in whole or part by US or foreign national’s home government
Foreign nationals who possess skills determined to be in short supply in home country
Waivers available
Fragomen, Del Rey, Bernsen & Loewy, LLP

23. Fragomen, Del Rey, Bernsen & Loewy, LLP
L-1 Intra Company Visa
Render services to a U.S. employer that is the parent, subsidiary, affiliate, or branch of an entity abroad for which the individual worked for at least 1 year (6 months for transfers under a blanket petition) within the preceding 3 years
L-1A – managerial or executive employment
L-1B – specialized knowledge employment
Spouses eligible for employment authorization
Fragomen, Del Rey, Bernsen & Loewy, LLP

24. “TN” Pursuant to North American Free Trade Agreement (NAFTA)
Must have nonimmigrant intent
Applies to Citizens of Canada and Mexico
Specific list of occupations - Appendix 1603.D.1
Canadians submit application at an entry point to the US – no labor condition application (LCA) requirement
Mexicans apply at a US consulate
Mexicans need visa
3 year initial admission - 3 year extensions available through USCIS or at port of entry
Fragomen, Del Rey, Bernsen & Loewy, LLP

25. Fragomen, Del Rey, Bernsen & Loewy, LLP
O Visa
Extraordinary ability in science, arts, education, business or athletics
Initial approval for up to 3 years, then 1 yr. extensions, no maximum stay
One of small percentage who have risen to the top of their field
Standard (“distinction”) is relaxed for the arts
Need to document 3 out of 8
national or international awards
membership in professional organizations that require outstanding accomplishments of their members
authorship of scholarly articles
published material about the individual in professional publications
original contributions of major significance to the field of expertise
judge of the work of others
employment in critical capacity with organizations with distinguished reputations.
high salary compared with others in same field
Fragomen, Del Rey, Bernsen & Loewy, LLP

26. Fragomen, Del Rey, Bernsen & Loewy, LLP
Immigrant Visas
Immigrant Visa = Permanent Residence/Green Card
Available mainly based on employment in US or family based relationship
Fragomen, Del Rey, Bernsen & Loewy, LLP

27. Employment Based Immigrants
Qualify under 1 of 5 employment based preference categories
Steps:
#1: Labor Certification (if necessary)
#2: Petition with USCIS (Form I-140 petition) under appropriate employment based categories
#3: Application for Permanent Residence:
(A) Adjustment of Status Application (Form I-485); or
(B) Consular Processing
Fragomen, Del Rey, Bernsen & Loewy, LLP

28. Employment Based Petitions
Employment Based First Preference (EB1)
Extraordinary Ability Petition (EB1-1)
Outstanding Researcher/Professor Petition (EB1-2)
Intra-company executives and managers (EB1-3)
Employment Based Second Preference (EB2)
Advanced Degree Professionals; Exceptional Ability Aliens; National Interest
Employment Based Third Preference (EB3)
Skilled Workers, Professionals and Unskilled Workers
Employment Based Fourth Preference (EB4)
Religious workers
Employment Based Fifth Preference (EB5)
Investors of $1 billion or more or of $500,000 in high unemployment area
Fragomen, Del Rey, Bernsen & Loewy, LLP

29. Extraordinary Ability Aliens EB1-1
Extraordinary Ability - criteria virtually identical to O-1 visa category on page 25 except for those in the arts
Extraordinary ability in the sciences, arts, athletics, business and education
No Labor Certification required
Fragomen, Del Rey, Bernsen & Loewy, LLP

30. Outstanding Professors and Researchers
International recognition
3 years experience
Tenured/tenure-track position or
Comparable research position with research facility
No Labor Certification required
Fragomen, Del Rey, Bernsen & Loewy, LLP

31. Criteria for Outstanding Researcher Classification
Evidence of recognition internationally, as being outstanding in the field (at least two of the following):
Documentation of the receipt of major prizes or awards for outstanding achievement in the academic field;
Documentation of membership in associations in the academic field which require outstanding achievements of their members;
Published material in professional publications written by others about the alien’s work in the academic field;
Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
Fragomen, Del Rey, Bernsen & Loewy, LLP

32. Second Preference (EB2)
Advance Degree Professionals - Advanced degrees or equivalent of Bachelor’s degree plus 5 years progressive professional experience/Labor certification required
Exceptional ability in the arts, sciences and business/No labor certification required
National Interest Waiver/Self Petition/No labor certification required
Fragomen, Del Rey, Bernsen & Loewy, LLP

33. Exceptional Ability in Arts, Sciences and Business
Degree of expertise significantly above that ordinarily encountered
Widespread acclaim and international recognition
Exceptional Ability determined by satisfying at least 3 of 6 categories
Degree relating to exceptional ability
Letter from current or former employer showing at least 10 years of experience
License to practice profession,
High salary or remuneration denoting exceptional ability
Membership in professional association
Recognition for achievements and significant contributions to industry by peers, government entities or professional or business associations
Comparable evidence allowed if above criteria not applicable e.g. expert opinion letters
No labor certification required
Fragomen, Del Rey, Bernsen & Loewy, LLP

34. National Interest Waiver
Can be difficult to obtain
Employment in area of substantial intrinsic merit
Proposed benefit is national in scope
Alien presents significant benefit to the field
National interest would be adversely affected if labor certification required.
Past record of alien justifies projections of future benefit to the national interest.
No labor certification required
Fragomen, Del Rey, Bernsen & Loewy, LLP

35. Fragomen, Del Rey, Bernsen & Loewy, LLP
Third Preference (EB3)
Bachelor’s Degree or US equivalent
Skilled workers with 2 years of relevant training or experience, but no Bachelor's degree
Other workers without a Bachelor's degree and less than 2 years of training or experience
Labor certification required
Fragomen, Del Rey, Bernsen & Loewy, LLP

36. Fourth Preference (EB4)
Religious workers
Members of religious occupations
Members of religious vocations evidenced by taking vows
No labor certification required
Fragomen, Del Rey, Bernsen & Loewy, LLP

37. Fragomen, Del Rey, Bernsen & Loewy, LLP
Fifth Preference (EB5)
Investors making investment of $1 million or more ($500,000 in high unemployment area)
New commercial enterprise
Creation of a least 10 positions for US citizens or US permanent residents
No labor certification required
Fragomen, Del Rey, Bernsen & Loewy, LLP

38. Labor Certification (PERM)
PERM – Program Electronic Review Management
Priority Date given upon filing with the Department of Labor
Search for qualified US workers minimally qualified, at appropriate wage
“Special Handling” provisions for college/university professors
Fragomen, Del Rey, Bernsen & Loewy, LLP

39. Labor Certification (Cont’d)
“Special Handling” for College/University Professors
File within 18 months of appointment
Can re-test labor market if outside 18 months
Seeks best qualified not minimally qualified
Prevailing wage requirement
Union notification or posting requirement
Fragomen, Del Rey, Bernsen & Loewy, LLP

40. PERM – Application Process
Registration of company with Department of Labor (DOL) - by employer
Obtain prevailing wage - 100% of prevailing wage must be paid
Conduct recruitment of US workers
Place job order with State Workforce Agency for 30 days
Two print ads in Sunday newspaper of general circulation. May use one journal ad in lieu of one Sunday for professional jobs requiring advanced degree & exp. Ads must include employer name & location, and reflect nature of job
3 other types of recruitment for professional jobs (e.g., ads on employer’s web site; employee referral program, online ads from newspaper, school/job fairs, etc.)
Fragomen, Del Rey, Bernsen & Loewy, LLP

41. PERM – Application Process Cont’d
Recruitment 30 to 180 days prior to filing case
File Form 9089 on-line or by mail – 8 to 12 months turnaround
Recruitment documents are not submitted with application, but must be kept by employer for 5 years
DOL may conduct audit before making decision
Fragomen, Del Rey, Bernsen & Loewy, LLP

42. FILING FOR PERMANENT RESIDENCE
File employment based petition, Form I-140 after Form 9089 certified by DOL
If immigrant visa number available:
File Adjustment of status application (Form I-485) at USCIS; or
Visa process at U.S. Consulate abroad
Fragomen, Del Rey, Bernsen & Loewy, LLP

43. Availability of Immigrant Visas
Immigrant visa number must be available to apply for permanent residence (Green Card)
Availability determined by priority date
If demand for visas exceeds availability results in retrogression
Cannot file for permanent residence (I-485 or visa process) until priority date current
US Department of State publishes immigrant visa availability via “Visa Bulletin” – see handout
Visa Bulletin updated monthly
Current backlogs for China and India in second preference categories
Current backlogs for all areas in third preference category
Fragomen, Del Rey, Bernsen & Loewy, LLP

44. Fragomen, Del Rey, Bernsen & Loewy, LLP
ADJUSTMENT OF STATUS
Can be filed concurrently with I-140
Advance Parole may be required -
Form I dependents and principal applicant may apply
Employment Authorization (EAD card) - Form I dependents and principal applicant may apply
Fragomen, Del Rey, Bernsen & Loewy, LLP

45. Fragomen, Del Rey, Bernsen & Loewy, LLP
VISA PROCESSING
Filed at U.S. Consulate in home country or country of last residence
Can only be filed once I-140 is approved
Involves interview & travel on short notice
Additional documents required
Medical exam in home country
Police certificates
Military record
Fragomen, Del Rey, Bernsen & Loewy, LLP

46. Family Based Categories
Immediate relatives – visas immediately available
Children (under 21 and unmarried) of US Citizens
Spouses of US Citizens
Parents of US Citizens (US Citizen son or daughter must be at least 21 years old to file for parent)
Fragomen, Del Rey, Bernsen & Loewy, LLP

47. Family Based Preferences
Backlogs - Refer to Visa Bulletin for visa availability
First Preference - Unmarried sons and daughters of US citizens
Second Preference
2A, Spouses and Children of permanent residents
2B, Unmarried sons and daughters (21 years or older) of US citizens
Third Preference – married sons and daughters of US citizens
Fourth Preference – brothers and sisters of adult US citizens
Fragomen, Del Rey, Bernsen & Loewy, LLP

48. Fragomen, Del Rey, Bernsen & Loewy, LLP
Considerations: Changing from F-1 (or J-1) to Permanent Residence (Based on Marriage to U.S. Citizen
Travel risks (do not travel until Advance Parole has been issued)
If travel and already married to U.S. Citizen, F-1 visa application (and possibly, entry) likely to be denied
Best to process in the U.S.
Risky to file I-485 Application for Adjustment of Status within 60 days of entering in F-1 status.
Fragomen, Del Rey, Bernsen & Loewy, LLP

49. Fragomen, Del Rey, Bernsen & Loewy, LLP
Diversity Immigrants
Natives of country designated as low admission states
The Diversity Visa (DV) 2012 Lottery online entry begins in October, through November, 2010 (60 day period). Access information at Dept of State’s
High school diploma or equivalent (admission to US college)
Within 5 years of applying, acquired at least 2 years of work experience in occupation requiring at least 2 years training or experience
File electronically with picture/No fee
One application only
Family members eligible i.e. spouse and children
Random selection of winners
Must obtain visa within the fiscal year in which applied
Fragomen, Del Rey, Bernsen & Loewy, LLP