1. Business Immigration and the New Administration
Common U.S. business visas, the green card through employment, Compliance, and global migration issues
Caroline ostrom
Ostrom & Peterson, lLC
June 14, 2017

2. Presentation Overview
Work authorization with in U.S.
The H-1B Visa
The TN Visa
The L Visa
The F Visa – CPT, OPT
The EAD
Audit/Compliance
The Green Card Process through Employment
PERM
Priority Dates and the Visa Bulletin
EB-2/EB-3
DOL Audit/Compliance
Global Migration Issues

3. H-1B Visa Employer-sponsored Specialty occupation – B.S. or B.A.
Three years, with a three year extension
Can extend indefinitely with green card pending
H-1B Cap
H-1B Transfers

4. H-1B Filing Fees Fees paid by the employer for an H-1B filing:
2. $1500 Training (of U.S. workers) Fee ($750 if less than 25 employees);
3. $500 Fraud Fee
Extensions – Lower Fees
Premium Processing - $1225 – currently on hold for H-1B petitions through at least 10/03/2017.

5. Regulatory Requirements for the H-1B
Pay the required wage
Offer same benefits and working conditions
No strike, work stoppage, or lock out in the same job at the same place of employment
Notice of Posting –at work site in two conspicuous places for 10 business days
Public Access File – to include a signed version of the Notice of Posting, among other documents, and be available with one business day of the Labor Condition Application filing.

6. Regulatory Requirements for the H-1B, cont.
An amendment may be necessary if there is a change in the position – title, duties, location, or wage
Unpaid leaves – voluntary are permitted, an unpaid bench is not
Withdrawal of the H-1B with termination
Payment of airfare for a trip home if the H-1B is terminated prior to its end date

7. The January 2010 USCIS Neufeld Memo
Whether a company has enough right to control the employee to meet the definition of “employer” for an H-1B
Gives as an example the “typical” IT staffing position, and states that the company did not have enough control to file an H-1B
End-Client Letter

8. H-4 Visa
For spouses and children (unmarried and under 21) of H-1B visa holders
Certain H-4 spouses can apply for work authorization, but not all
The ability of H-4s to obtain EADs could be rescinded under administrative rule-making procedures.

9. TN Visa
For Canadians and Mexicans under NAFTA (NAFTA undergoing renegotiation)
Employer specific
Three year duration, unlimited extensions (but to be for temporary employment)
For certain employment categories:
1. Computer Systems Analyst
2. Management Consultant

10. TN Visa, continued
Can apply at the border ($56) or with USCIS ($1685), if Canadian
Need to go through the consulate ($160), or though USCIS ($1685), if Mexican
Spouse or unmarried children under 21 – TD visa; not work authorized

11. L Visa Intra-company transferees
International company with offices outside and inside U.S.
L-1A – managers and executives
L-1B – specialized knowledge employees
L-2 - spouse or unmarried child under 21 of L-1 visa holder; eligible for work authorization

12. F-1 Visa Student visa – not work authorized on its own
F-2 – spouse or child under 21, not work authorized
CPT – Curriculum Practical Training
OPT – Optional Practical Training - 12 months
STEM OPT– Science, Technology, Engineering, & Math
E-verify
24 month extension of OPT (36 months total)
The need for an employer training plan and attestations with Form I-983:

13. EAD Employment Authorization Document Not employer specific* F-1 – OPT
H-4 EAD
L-2
Family-based green card application pending
Employment-based green card application pending*
*May need to transfer underlying green card application to new employer

14. Green Card Processing through Employment
Three step process
1. PERM through the Department of Labor
2. I-140 Petition with USCIS
3. I-485 Application for Permanent Residence with USCIS

15. Cost of the Green Card through Employment
Employer required to pay all costs incurred for the first step – PERM.
The PERM step includes the cost of advertising the position for two Sundays in the paper
There are also attorney fees

16. PERM with the Department of Labor
Prior to filing the PERM application:
1. Prevailing Wage from the DOL
2. Required advertising
3. Notice of Filing at the work site
4. Notice to qualified workers if there has been a layoff within the prior 6 months
5. Recruitment Report
6. Audits

17. I-140 Petition Filed with USCIS after the PERM application is approved
USCIS evaluates the position, whether the employee meets the qualifications, and if the employer meets the ability to pay.
Once the I-140 is approved, wait for an immigrant visa to be available

18. Priority Dates and the Visa Bulletin
The I-140 Petition is given a “priority date”
The “priority date” is the date the PERM application was filed with the DOL
The employee waits for the priority date in his or her employment category for his or her country to be “current”
The Department of State issues a monthly Visa Bulletin, with the current Priority Dates for the month

19. June 2017 Visa Bulletin ExcerptEB
All other
China
India
Mexico
Philippines
1st C
01JAN12
2nd
01MAR13
01JUL08
3rd
15APR17
01OCT14
15MAY05
01MAY13

20. EB-2 v. EB-3 EB-3 – B.S. and several years experience
EB-2 – B.S. and five years progressive experience, or an M.S.
The minimum requirements of the job controls, not the qualifications of the employee
Experience with the employer typically cannot be used to satisfy the requirements

21. I-485 Application for Permanent Residence
Can file for this when priority date is current
Final stage in the process
Look at the employee – criminal history, immigration history, etc.
Qualify for EAD
New Form I-485 Supplement J

22. Global Migration Issues
Renegotiating NAFTA and the TN Visa
NAFTA a trade agreement, rather than a treaty; President has more power to withdraw – 6 months notice to parties
Reciprocity
New Visa Questionnaire
The Travel Ban – Executive Order dated March 6, 2017
Suspends travel for individuals from 6 predominately Muslim countries (this provision blocked by the federal courts, likely headed to the Supreme Court for review)

23. Contact Information
Thank you for your attention.
Caroline Ostrom
Disclaimer: The information provided in this presentation is for educational purposes only and is not legal advice.