post llm years: immigration options february 2011 klasko, rulon, stock & seltzer, llp suzanne...

Post LLM Years: Immigration Options

February 2011

Klasko, Rulon, Stock & Seltzer, LLP

Suzanne Seltzer, Esq.

Philadelphia – New York


Hot Topics in Immigration Law Agenda

H-1B Visas H-1B Requirements H-1B Alternatives Overview of Permanent Residency Q&As


H-1B Visas

Basic requirements Job Offer Specialty occupation Bachelors or higher degree Prevailing Wage License to Practice Law

If not yet admitted, may be ok to work if under supervision of a partner or associate


H-1B Visas (cont’d)

Procedure and processing times

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 65,000 H-1Bs

FY 2011 gone by January 2011 FY 2010 gone by December 2009 FY2009 gone by April 2008 FY2008 gone by April 2007 FY2007 gone by May 2006


Travel and Status Issues for H-1B Approvals

Change of status vs. consular visa issuance Travel after April 1 Maintaining status until October 1

“Cap gap” relief


2011 Issues(FY2012 H-1Bs)

Fewer job offers Impact of layoffs Increased USCIS scrutiny

petitions filed by owner-employees Third–party worksites (i.e. deferral & stipend to

work for government or pro bono)


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


Avoiding H-1B Quota

Exemption based on employer Universities Non-profits affiliated with universities Non-profit/government research organizations or place of employment, law says “at”


Avoiding H-1B Quota (cont’d)

Exemption based on employee Previously counted Singapore/Chile Concurrent employment


Alternatives to H-1B

Alternative Visa Options O-1 E-3 (Australians) TN (Canadian/Mexicans) J-1 (degree + 1 yr experience outside

the US or 5 years of experience outside the US)

E visas (treaty between home & US)


Alternatives to H-1B (cont’d)

Alternative Visa Options (cont’d) L visas (work for company overseas, transfer

to US) 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 Diversity Visa Lottery


Employment Based (EB) Permanent Residency

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

interest/exceptional/ EB-5 Multiple petitions Multi-Step Process Non-Immigrant Status?


Permanent Residency Quotas Employment Based Preference Categories:

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

Multinational Executive

Second Preference (EB-2) National Interest Waivers, Advanced Degreed

Professionals, Bachelors plus 5 years exp.

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

Fifth Preference (EB-5) Investment in the U.S. that creates at least 10 U.S. jobs


Permanent Residency Quotas,Where are We Now?

All Chargeability Areas Except Those Listed

CHINA-mainland born

INDIA MEXICO

PHILIPP-INES/ DOMINICAN REPUBLIC

EmploymentBased

1st C C C C C

2nd C 08JUL06 08MAY06 C C

3rd 01JUL05 22JAN04 15MAR02 08JAN04 01JUL05

5th C C C C C

Visa Bulletin March 2011


Permanent Residency Quotas,Where are We Now?

“Oversubscribed” versus “Available” Available if:

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


Labor Certification Application (PERM)

First of Three Steps EB-2 or EB-3 – depends on job requirements Employer must:

Pay attorney fees and advertising costs Define “minimum requirements” Engage in required recruitment Interview qualified U.S. worker applicants Prove unavailability of qualified, interested, and

available U.S. worker Pay prevailing wage


Immigrant Petition

I-140 Petition 1st step for EB-1 and national interest waiver 2nd step for PERM

Employee documents education and experience

I-485 Petition 3rd Step May be option for “concurrent” filing with I-140 Cannot file until priority date is current


Adjustment of Status: The Green Card

I-485 (Adjustment of Status to Permanent Resident) Importance of filing

May not need to maintain nonimmigrant status Spouse and children under 21 included Eligible for Employment Authorization Document

(EAD) and Advance Parole travel document


Contact InformationSuzanne B. Seltzer, Esq.

Telephone: 212-796-8846 Fax: 212-297-1799 Email: [email protected]

Websites: www.klaskolaw.com http://blog.klaskolaw.com www.eb1immigration.com www.eb5immigration.com

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