post student years: immigration options march 2010 klasko, rulon, stock & seltzer, llp suzanne...

Post Student Years: Immigration Options

March 2010

Klasko, Rulon, Stock & Seltzer, LLP

Suzanne Seltzer, Esq. Kate Kalmykov, Esq.

Philadelphia – New York

Hot Topics in Immigration Law Agenda

H-1B Visas H-1B Requirements and TARP H-1B Alternatives Introduction to Permanent Residency Q&As

H-1B Visas

Basic requirements Job Offer Prevailing Wage Bachelors or higher degree Specialty occupation

Procedure and processing times

H-1B Visas

Part-time or full-time Length of approval Extensions Portability Spouses and Employment Authorization Travel

H-1B Quota

What is it and what does it mean? 20,000 for US awarded advanced degrees

FY 2010 gone by April 2009 FY2009 gone by April 2008 FY2008 gone by April 2007 FY2007 gone by August 2006

H-1B Quota

65,000 H-1Bs FY 2011? FY 2010 gone by December 2009 FY2009 gone by April 2008 FY2008 gone by April 2007 FY2007 gone by May 2006

2010 Issues(FY2011 H-1Bs)

■ Fewer job offers■ Demand■ Effect of TARP requirements■ Impact of layoffs■ Increased opportunities for investors and

entrepreneurs

H-1B and TARP Recipients

American Recovery and Reinvestment Act of 2009 requires certain H-1B to attest to: good faith efforts steps to recruit U.S. workers; no U.S. worker was displaced by the employment

of an H-1B worker either at the employer's own worksite, or at any outside worksite where the employer

has placed an H-1B worker.

Which Employers Are Required to Make the Additional Attestations:

Recipients of TARP funds http://www.financialstability.gov/latest/index.html

Recipients of FRA Section 13 funds H-1B impact depends upon the type of borrowing

arrangement

Term Asset-Backed Securities Loan Facility (TALF) (received discounted gov’t loans)

H-1B and TARP Recipients What if Company Repays the TARP Funds?

USCIS recently confirmed that if you received TARP funding, but have repaid your obligations, an employer will no longer be considered subject to the TARP recipient restrictions on hiring H-1B employees.

Does Not Apply to Every H-1B 2 year program – until February 16, 2011 Only to New Employees

H-1B extensions with same employer Change of Status - already working with

employer on OPT, attestations NOT required Only Relevant to H-1B

Avoiding H-1B Quota

Exemption based on employer Universities Non-profits affiliated with universities Non-profits or gov’t research organizations or place of employment, law says “at”

Avoiding H-1B Quota

Exemption based on employee Previously counted Singapore/Chile Concurrent employment

Can’t avoid the quota, planning strategies?

Filing April 1 for Oct 1 start date CAP GAP Relief

Going from quota exempt to quota subject Portability? Concurrent employment? Working “at” University or non-profit

Other Nonimmigrant (Temporary) Options

Treaty (E) Visas

■ Must be national of treaty country http://www.travel.state.gov./visa

■ Company must be owned at least 50% by treaty country nationals

Treaty (E) Visas

Visa for 1 to 5 yearsEach entry limited to two yearsVisa and entry can be extended indefinitely

No quota Spouse can work

■ Treaty traders (E-1) “Substantial” import or export Majority between U.S. and treaty country Can be manager, supervisor or “essential skill”

employee

Treaty (E) Visas

■ Treaty investors (E-2) “Substantial” investment

No exact amount Varies depending upon type of investment Business plan and financial projections critical

Treaty (E) Visas

Treaty (E) Visas■ Treaty investors (E-2)- cont.

Relevant issues Amount of investment Number of employees Needs of business Likely profitability and growth potential

■Visa applicant can be Investor or Manager, supervisor or essential employee

Treaty (E)

Intracompany Transferee (L-1) Visas■ National of any country

■ No quota■ Length of visa

Start up 1 year Established business 3 years Maximum length 7 years for L-1A or 5 years for L-1B

Intracompany Transferee (L-1) Visas

■ Spouse can work ■ Must be “international” business

Business outside U.S. with at least 50% common ownership

Must be employed by that business one year■ Type of employment (in U.S. and overseas

companies) Manager or executive “Specialized knowledge” employee

Intracompany Transferee (L-1) Visas

Start-up issues Place of business Employees Capitalization Need for “manager” Business plan and financial projections

Mexican & Canadian NAFTA Professional Worker (TN) Visa Allows citizens of Canada and Mexico to work in

the U.S. as NAFTA professionals Profession must be on the NAFTA list Position in the U.S. requires a NAFTA

professional Must have employer sponsor Applicant has to have qualifications of the

profession

More Alternatives to H-1B

Alternative Employment Visas: O-1 E-3 (Australians) TN (Canadian/Mexicans) J-1 (new rules limiting applicability) I visa (journalists – disseminate news abroad) OPT Extension- STEM

More Alternatives to H-1B

Alternative Visa Options (cont’d) EAD through spouse’s status

J-2 E L-2 I-485

What is Permanent Residency? Authorization to Live & Work Indefinitely in

the United States “Immigrant Visa” The “Green Card” or “Form I-551” Not always ‘forever’ – may be abandoned or

taken away

Immigrant Versus Non-Immigrant Visas Immigrant Visa

Green Card/Permanent Residency

Non-Immigrant Visa (NIV) H, F, J, O, etc Limited duration Specific to employer/institution Specific to purpose (work/study/tourism)

Permanent Residency Quotas Annual Limit on Permanent Residency Per Country Limit – 7% Allocated by:

Priority Date – place in line Preference Category

How Do I Apply?

Family Investment Asylum Employment

Permanent Residency Quotas Employment Based Preferences

First Preference (EB-1) Extraordinary Ability, Outstanding Researcher,

Multinational Executive Second Preference (EB-2)

Nat’l Interest Waivers, Advanced Degreed Professionals, Bachelors plus 5 years exp.

Third Preference (EB-3) Skilled Worker (2+ years experience), Bachelor’s Degree

Permanent Residency Quotas,Where are We Now? “Oversubscribed” versus “Available”

Available if: Visa Bulletin indicates “C” = current Priority date earlier than posted date

Permanent Residency Quotas,Where are We Now?

All Chargeability Areas Except Those Listed

CHINA-mainland born

INDIA MEXICOPHILIPP-INES

EmploymentBased

1st C C C C C

2nd C 08JUL05 01FEB05 C C

3rd 15DEC02 15DEC02 01JUL01 01JUL02 15DEC02

5th C C C C C

Visa Bulletin March 2010

Employment Based (EB) Permanent Residency

Employer-sponsored or self-sponsored Labor certification or extraordinary/national

interest/exceptional Multiple petitions Multi-Step Process Non-Immigrant Status?

Contact Information

Suzanne B. Seltzer, Esq. Telephone: 212-796-8846 Fax: 212-297-1799 Email: sseltzer@klaskolaw.com

Kate Kalmykov, Esq. Telephone: 212-796-8856 Fax: 212-297-1799 Email: kkalmykov@klaskolaw.com

Websites: www.klaskolaw.com http://blog.klaskolaw.com www.eb5immigration.com

post student years: immigration options march 2010 klasko, rulon, stock & seltzer, llp suzanne...

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