immigration options post student years: immigration options march 9, 2015 michelle t. kobler, esq....
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Post Student Years:
Immigration OptionsImmigration Options
March 9, 2015
Michelle T. Kobler, Esq.
Klasko Immigration Law Partners, LLPPhiladelphia New York Chicago
www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Michelle T. Kobler, Esq.
Michelle Kobler is an Associate in the Firm’s Philadelphia office, and focuses her practice on both employment-based and family-based immigration.
A graduate of Wellesley College (B.A., 2006), Michelle received her law degree from the George Washington University Law School (J.D., with Honors, 2011). Michelle is currently admitted to practice in New York and Massachusetts and is a member of the American Immigration Lawyers Association. She has experience representing clients before Immigration Court and the Citizenship and Immigration Services.
Klasko Immigration Law Partners, LLP
Agenda
Non-Immigrant Status H-1B Requirements H-1B Alternatives Introduction to Permanent Residency Q&As
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Non-Immigrant Visas
Non-Immigrant Status (NIV)H, F, J, O, etc.Limited durationSpecific to employer / institutionSpecific to purpose (work/study/tourism)May require a showing of non-immigrant intent
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Maintaining Lawful Status
‘Status’ Permission to remain in the U.S. for a fixed periodDenoted by ‘I-94’ card
(for Fs – with I-20; for Js – with DS-2019)Permissible activities in the U.S. determined by
statusCan only hold status in one classification at a time
(i.e. – cannot have an F and an H)
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Maintaining Lawful Status
I-94, Arrival / Departure RecordTwo ways to obtain:
Port of Entry – requires visa Change or Extension of status
Governs Status Denotes classification (F, J, H, O) Denotes period of stay Surrendered upon departure, given up with status
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Post F/J NIV OptionsH-1B Visas
H-1B: ‘specialty occupation’ Employer petition on your behalfLegal/filing fees to be paid by employerPosition that normally requires at least a
bachelors degree in a related fieldEmployer must agree to pay ‘prevailing wage’
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
H-1B Visas
Part-time or full-time Length of approval Extensions Portability Maximum in H status 6 years total CAP on number of H-1Bs issued each year
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
H-1B Issues for Start-Ups
For more information, visit www.klaskolaw.com
Must have employer tax I.D. number Company owned by H-1B employee?
Must be W-2 employeeSeparate entity from owner/employee
Company right of control over employee Is there a Board of Directors? Who has ability to hire/fire
Klasko Immigration Law Partners, LLP
H-1B Issues for Start-Ups
For more information, visit www.klaskolaw.com
Company must proveFinancial ability to pay salaryReal job to be done by H-1BPlace of business
Business plan/financial projections Prevailing Wage
CEO vs. function-descriptive position
(cont’d)
Klasko Immigration Law Partners, LLP
H-1B Quota
For more information, visit www.klaskolaw.com
What is it and what does it mean?20,000 for US awarded advanced degrees
FY 2014 gone on April 1-5 (Lottery) FY 2013 gone by June 7, 2012 FY 2012 gone by October 19, 2011 FY 2011 gone by December 22, 2010 FY 2010 gone on April 1-5 (Lottery) FY 2009 gone on April 1-5 (Lottery)
Klasko Immigration Law Partners, LLP
H-1B Quota(cont’d)
For more information, visit www.klaskolaw.com
65,000 H-1Bs FY 2014 gone on April 1-5 (Lottery) FY 2013 gone by June 11, 2012 FY 2012 gone by November 22, 2011 FY 2011 gone by January 26, 2011 FY 2010 gone by December 2009 FY 2009 gone by April 2008 FY 2008 gone by April 2007
Klasko Immigration Law Partners, LLP
Avoiding H-1B Quota
Exemption based on employer Universities Non-profits affiliated with universities
Increased scrutiny of affiliations
Non-profit research organizations Government research organizations
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Avoiding H-1B Quota
Exemption based on employeePreviously counted (in last 6 years)Singapore/ChileConcurrent employment
(cont’d)
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Change of status vs. consular visa issuance Visa – Permission to re-enter the U.S. after a trip
abroad (stamp in passport) Need visa in specific classification to re-enter in that
status Status – Permission to remain in the U.S. for a fixed
period (denoted by ‘I-94’ card and I-20 or DS-2019) Only hold status in one classification at a time
(i.e. – cannot have an F and an H)For more information, visit www.klaskolaw.com
Travel and Status Issues for H-1B Approvals
Klasko Immigration Law Partners, LLP
Travel and Status Issues Travel after April 1
Depart US, relinquish I-94F visa to come back to use OPT?What about H? What happens to petition?
Maintaining status until October 1 “Cap gap” reliefOPT must be valid at time H-1B petition is filedExtends only until September 30
(cont’d)
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
H-1B Alternatives: Ls
L-1: ‘intracompany transfer’Must have worked for petitioning company
overseas for at least one year in the last three years
For execs, managers, or special knowledgeSpouse eligible for employment authorizationMaximum 7 years in L status
NOTE: H & L combined – max 7 years
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Alternatives: Es
Must be national of treaty country http://www.travel.state.gov/visa
Employing company must be owned at least 50% by treaty country nationals
No quota and can be extended indefinitely Spouse eligible for employment authorization
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Alternatives: TN
Citizens of Canada and Mexico Must have employer and job offer Profession must be on the NAFTA list Applicant must have qualifications as indicated
on NAFTA list Must evidence non-immigrant intent
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Alternatives
I visa – journalists for media outside US O visa
Artists with distinction in field; or Scientists with extraordinary ability
E-3 – Australians only, similar to H-1B Dependent on spouse visa
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Permanent Residence
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
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Immigrant vs. Non-Immigrant
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)
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Nonimmigrant to ImmigrantF-1 – attend school
F-1 OPT – start work
H-1B/L-1 – continue working;max 6 years total in H, 7 in L
H-1B – change employer, continues to count against 6 years maximum (L trickier to change)
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Nonimmigrant to ImmigrantH-1B – change employer, requires new petition
may start working under ‘H-1B portability’
4th Year H-1B status – start thinking about LPR
Maintain NIV status until LPR
6 years in H-1B, other options? Eligible to file adjustment of status?
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
How Do I Apply?
Family Investment Asylum Employment DV Lottery
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Permanent Residence Quotas
For more information, visit www.klaskolaw.com
■ Annual Limit on Permanent Residency
■ Per Country Limit – 7%
■ Allocated by:Priority Date – place in linePreference Category
Klasko Immigration Law Partners, LLP
Permanent Residence Quotas
■ Employment Based Preference Categories:First Preference (EB-1)
■ Extraordinary Ability ■ Outstanding Researcher ■ Multinational Executive
Second Preference (EB-2)■ Advanced Degreed Professionals■ Equivalent
Bachelors plus 5 years experience Exceptional Ability
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
■ Third Preference (EB-3)Skilled Worker (2+ years experience) Bachelor’s Degree
■ Fifth Preference (EB-5)$1 Million Investment in the U.S. that creates
at least 10 U.S. jobs
Permanent Residence Quotas
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Residency Quotas, Where Are We Now?
Vis
a B
ulle
tin fo
r M
arch
201
5
EmploymentBased
All Charge-ability Areas Except Those
Listed
CHINA- mainland born
INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01SEP10 01JAN07 C C
3rd 01JUN14 22OCT11 01JAN04 01JUN14 01JUN14
Other Workers* 01JUN14 15AUG05 01JAN04 01JUN14 01JUN14
4th C C C C C
Certain Religious Workers C C C C C
5th Targeted Employment
Areas/Regional
Centers and Pilot
Programs
C C C C C
Klasko Immigration Law Partners, LLP
Considerations in Employment Based Applications
Employer-sponsored or self-sponsored Labor certification or extraordinary/NIW Filing multiple under different categories? Multi-Step Process
Department of Labor? USCIS: I-140 USCIS: I-485
Non-Immigrant Status?For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Materials
Please visit www.klaskolaw.com to download this PowerPoint presentation and relevant articles.
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Michelle T. Kobler, Esq.
215.825.8600
Klasko Immigration Law Partners, LLP
Philadelphia New York Chicago
For Further Information
Klasko Immigration Law Partners, LLP
www.klaskolaw.com
www.eb1immigration.com
www.worksite-compliance.com
www.eb5immigration.com
http://blog.klaskolaw.com
online
Klasko Immigration Law Partners, LLP
DISCLAIMER / COPYRIGHT NOTICE
The materials contained in this PowerPoint does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Copyright © 2015 Klasko Immigration Law Partners, LLP.All rights reserved.
Copyright © 2015. All rights reserved.