1. Melissa Harms UC Davis May 20, 2015
Pursuing Work Authorization and Permanent Residence After Leaving the University
Melissa Harms
UC Davis
May 20, 2015

2. Basic Immigration Terms
Non-immigrant: Foreign national approved for temporary entry into the U.S. for a specific purpose
Immigrant: Foreign national approved for lawful permanent residence in the U.S.
Visa: Travel document issued by a U.S. Consulate or Embassy abroad that allows a foreign national to apply for admission at a U.S. port of entry
Status: Period of authorized stay, as indicated on the Form I-94

3. H-1B Flowchart File Labor Condition Application with DOL
(7 day processing)
File H-1B petition with USCIS
(4-6 months processing or 15 days for extra $1,225)
Change of Status
H-1B effective on or after October 1
Consular Processing
Interview Scheduled at U.S. Consulate/Embassy

4. H-1B Status 6 years of status (with limited exceptions)
3 years + 3 year extension
Position must be in “specialty occupation” and require a baccalaureate degree
Foreign national must possess the required degree or equivalent
Allows for dual intent-immigrant intent
Family members – H4: Allowed to go to school but cannot work
H-1B audits are common

5. H-1B Status Position and employer specific
Can be for part-time or concurrent employment
Not for independent contractor
Portability: Once in H-1B status can transfer employers once petition with new employer filed and received. Do not need to wait for decision on petition.
Note: If going from cap-exempt to cap-subject employer, must apply for visa number

6. H-1B Numerical Cap 65,000 new H-1B “numbers” per year
20,000 additional H-1B numbers for holders of U.S. Master’s degree or higher degree
Cap opens up on April 1
Cap reached on April 1-5, 2015; April 1-5, 2014; April 1-5, 2013; June 11, 2012; January 26, This year, 240,000 applications received for 85,000 numbers.
Normally, visas gone immediately, and lottery held for available slots

7. H-1B Numerical Cap: Who is Not Subject?
Institution of Higher Education
Affiliated Non-Profit Entity: Associated with an institution of higher education, through shared ownership or control or attached as a branch, cooperative, or subsidiary
Non-profit research organization or governmental research organization
Individuals who previously held H-1B status
Individuals currently in H-1B status
© 2012 CPG Immigration Law Group

8. H-1B Labor Condition Application
Employer attests that it will pay higher of the prevailing wage or the actual wage
Prevailing wage = market wage as determined by DOL or wage source accepted by DOL
Actual wage = the wage that is actually being paid to similarly situated workers
Must pay actual wage if more than prevailing wage
Employer attests that it will provide same working conditions to foreign worker as to U.S. worker
Employer must provide notice of the LCA to other employees
LCA takes 7 calendar days to process

9. H-1B Visa: Filing Fees $325 application fee $500 USCIS Fraud Fee
REQUIRED OF ALL PETITIONS
$325 application fee
$500 USCIS Fraud Fee
IF FEWER THAN 26 EMPLOYEES
$750 - ACWIA
IF 26 OR MORE EMPLOYEES
$1500 – ACWIA
*OPTIONAL $1,225 TO PREMIUM PROCESS IN 15 DAYS

10. Preparing the H-1B Petition
After LCA is certified, file petition
H-1B petition filed with the USCIS
Regular processing 4 – 5 months
Premium processing in 15 days by paying USCIS an additional $1,225
Once approved, USCIS issues Form I-797 approval notice and either change of status or consular processing

11. Change of Status or Consular Processing
File petition with USCIS
Stay in US (BEWARE: departing US while petition is pending can result in denial)
Receive approval
Depart US
Status change goes into effect on requested date
Take original approval notice to interview at US Consulate
If travel abroad, must obtain visa at US Consulate
Obtain visa
Re-enter US

12. H-1B Status
Employer must pay H-1B wage within 30 days of employee’s entry into U.S. or 60 days if a change of status application
Must apply for visa at U.S. Consulate abroad once travel abroad if change of status. Make sure to check processing times as delays are common.
Must notify USCIS of any address changes within 10 days
If terminated, there is no grace period and fall out of status upon termination
Employer is required to pay return transportation back to home country if terminated prior to H-1B expiration date

13. Cap Gap Regulation
Allows F-1 students to remain in the U.S. and continue to work on their OPT if a timely-filed H-1B petition remains pending or has been granted by the USCIS.
Applies to all F-1 students who are successful under the H-1B lottery and have a pending or approved H-1B petition.
H-1B must be approved by September 30 or employment must stop.

14. 17 Month Extension of OPT
Students on OPT can extend that period by up to 17 months (for a maximum total period of 29 months of OPT) if the student received a degree in science, technology, engineering, or mathematics (STEM).
Only available to STEM degree students who have accepted employment with an employer registered and in good standing with USCIS’ E-Verify employment verification program.
E-Verify is an internet based system that verifies the work authorization of employees

15. OPT Dates and H-1B Submission
OPT Expiration
When to apply for H-1B
Special Notes
October 2014 – March 2015
April 2014
Lose some of OPT time
April 2015– September 2015
April 2015
Will need to work under H-1B gap cap from OPT expiration until 09/30/2015
October 2015– March 2016

16. Advantages to H-1B and OPT
May work for any employer as long as related to field of study
Allowed a total of six years (with further extensions possible)
Allowed 90 days of unemployment
Can start permanent residency process
No employer sponsorship required
Counted once in H-1B “numbers”
Can be unpaid (note STEM OPT must be paid employment)
Must be paid the prevailing wage
Can be independent contractor
Must be an employee and receive same benefits as other employees

17. Other Non-Immigrant Visas
Visa classification
General requirements TN
Canadians or Mexicans are eligible for TN status for a position designated in NAFTA. Schedule 2 of NAFTA identifies the requirements for each position. Can be issued in 3 year increments.
L-1A
L-1B
Intra-company transferee. (Manager or Executive) or (Specialized Knowledge). Must work abroad for one year within the last 3 years with overseas employer before transferring to U.S. Must be employed as a manager or executive (L-1A). May apply for permanent residency without going through labor certification process. Limited to 7 years in L-1A status and 5 years in L-1B status.
O-1
Persons of extraordinary ability in the arts and entertainment, athletics, sciences, business and education. No numerical quota. Initial visa for 3 years and renewable annually indefinitely.

18. Other Non-Immigrant Visas (cont’d)
Visa classification
General requirements
J-1
Cultural exchange visa. Used for trainees, research scholar, short-term scholars, or specialists. Limits vary according to type of program. Beware – some individuals will be subject to two-year return requirement.
E-1/E-2
Treaty Trader/Treaty Investor: open to countries with treaties with US. Business must conduct substantial trade with US or there must be an investment in a US enterprise that is not “marginal”
E-3
Visa for Australian nationals. Similar to H-1B visa as position must require a Bachelor’s degree and foreign national must possess a Bachelor’s degree. Renewable indefinitely. Cap of 10,500 per year.

19. Sponsorship for Permanent Residency
Labor certification
Non-labor certification
Employer recruits and must prove a shortage of minimally qualified American workers to fill the position
PERM process
File with Department of Labor
Outstanding Researcher
Extraordinary Ability
National Interest Waiver
Multi-National Executive or Manager
Diversity Lottery
Investor
Religious Worker

20. Permanent Residency Flowchart
Immigrant Visa Petition (I-140)
Wait for Visa Availability
Adjustment of Status (I-485)
EAD/AP
Consular Processing
Interview Scheduled at U.S. Consulate/Embassy

21. Green card Sponsorship: PERM
Test the labor market to prove no qualified U.S. worker through newspaper ads, state workforce job posting, internal job posting, online job boards, external online posting, company website, etc.
Recruitment for 60 – 180 day period
Earliest can file with Department of Labor (“DOL”) is 30 days AFTER last form of recruitment (i.e. last recruitment placed on 03/1/2012, can file any time after 04/01/2012)
Online filing, audit-based (like tax return)
Processing times (no audit = 6 – 7 months; audit = 1.5 yrs)
Once PERM pending more than 365 days AND PERM filed at least 1 year prior to H-1B max out date, can renew H-1B in 1 year increments

22. I-140 Petition
Once PERM application approved, file I-140 immigrant petition with the United States Citizenship and Immigration Services (“USCIS”)
Prove company can pay offered salary
Prove employee’s qualifications for position
Standard processing time is 5 – 6 months
Can premium process in 15 calendar days by paying $1,225 government filing fee
Can file concurrently with I-485 (Step 4) if visa available under Department of State Visa Bulletin
Once I-140 approved, can renew H-1B in 3 year increments while waiting for visa availability

23. Visa Availability - Visa Bulletin
Published monthly by the Department of State (
140,000 employment based immigrant visa numbers available on October 1
Limited numbers available for each preference category and for each country each year
Each month Department of State determines how many immigrant visas were used worldwide and publishes a “cut-off date” in the Visa Bulletin
Backlogs occur when the number of immigrant visas filed exceeds the number of immigrant visas available
Previously current dates on the Visa Bulletin may go backwards, or categories may become “Unavailable”
Position requires at a minimum and Employee has:
EB-2: Master’s degree or Bachelor’s and 5 years of progressively responsible post-baccalaureate work experience (there is no quota wait unless from China or India)
EB-3: At least 2 years of education or work experience (there is currently a year wait)
In order to qualify for EB-2, degree must be from a single source (i.e. degree alone must be equivalent to a U.S. 4 year Bachelor’s degree; cannot combine degrees to come up with a Bachelor’s equivalent)

24. June 2015 Visa Bulletin
Employment-Based
All Other Chargeability Areas Except Those Listed
China
India
Mexico
Philippines
1st
Current
2nd
01Jun13
01Oct08
3rd
15Feb15
01Sep11
22Jan04
01Jan05
Priority Date is the date PERM was filed with the DOL
Country of Chargeability is applicant or spouse’s country of birth
Category (1, 2 or 3) is determined by position requirements AND employee’s qualifications

25. Outstanding Researcher I-140
First Preference visa petition
Sponsored by employer
Requirements:
The individual must hold a tenured, or tenure-track faculty position at an university or institution of higher learning or have a comparable permanent job offer at such establishment; OR a comparable job offer at a private company with documented accomplishments in the academic field which employs three full- time research personnel; and
The individual must have at least three years prior teaching or research experience in the field.
Meet two of statutory criteria

26. Criteria for Outstanding Researcher
Receipt of major prizes or awards for outstanding achievements in the academic field;
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;
Participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
Original scientific or scholarly research contributions to the academic field; or
Authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

27. National Interest Waiver I-140
Second Preference Visa Petition
Self-sponsored petition
Requirements:
Advanced degree or exceptional ability;
The individual’s work must be of “substantial intrinsic merit;”
The proposed benefits of the individual’s work must be “national in scope;” and
The individual’s past record of achievement must demonstrate that he or she will prospectively benefit the national interest to a substantially greater degree than would an available US worker having the same minimum qualifications.

28. I-485 or Consular Processing
Beneficiaries can file for AOS or Consular processing only when a visa is available
When preference category and country of chargeability in Visa Bulletin is “Current,” or
When cut-off date in Visa Bulletin for preference category and country of chargeability is on or before the Priority Date
CONSULAR PROCESSING
If consular processing, National Visa Center will issue documents needed for immigrant visa interview overseas
Once Priority Date is current, U.S. consulate will schedule interview
ADJUSTMENT OF STATUS (I-485)
Once Priority Date is current, submit I-485 with USCIS
Apply for work permit and travel permit for spouse and children under 21 – work permit valid for 2 years if I-140 approved; I-131 valid for 1 year
Can be approved in 4-6 months if visa available current

29. Family Visa Processing
Three steps to the process:
Establishing the Relationship—Immigrant Relative Petition (I-130)
Obtaining Permanent Residence:
In US: Adjustment of Status
Outside US: Consular Processing
Visa Availability & Priority Dates
Immediate Relatives: no wait for visa--may “one step”
Preference Relatives & priority dates 29
© 2012 Law Office of Melissa Harms

30. Adjustment of Status Timeline for Family-Based Applications
File I-485 and accompanying applications (I-765, I-131, I-864) with National Benefits Center (immediate relative can also file Form I-130)
Attends biometrics appointment 4-6 weeks after filing
EAD and Advanced Parole generally days
Interview scheduled within 4 months of filing
Green card arrives 2-4 weeks later via mail 30
© 2012 Law Office of Melissa Harms

31. F-1/M-1/J-1 and the Permanent Residency Process
F-1/J-1 require strict non-immigrant intent: Filing I-130 establishes immigrant intent
DSOs should not terminate SEVIS record if student maintaining F-1 status
Recommend maintaining F-1 status while AOS is pending
No travel after I-130 filed unless using advance parole
Timing of AOS filing is very important: Recommend 60 days after F-1 entry to avoid presumption of immigrant intent
J-1 two year return requirement: Marriage to a US citizen does not excuse two year return requirement and must obtain necessary waivers

32. Strategy Issues Research employer’s policies regarding sponsorship
Permanent residency—start planning early
Seek legal advice early in the process to assist your planning
Plan graduation date/OPT with H-1B in mind

33. Questions or Comments? Melissa Harms mharms@harms-law.com
700 Larkspur Landing Circle, Suite 199
Larkspur, California 94939
(Phone)
(Fax)