post student years: immigration options post student years: immigration options november 2009...

Post Student Years: Immigration Post Student Years: Immigration OptionsOptions

November 2009

Klasko, Rulon, Stock & Seltzer, LLP

Kate Kalmykov, Esq.Philadelphia - New York


Kate Kalmykov, Esq.

Kate Kalmykov, an Associate in the Firm's New York City office, focuses her practice on business immigration.

Kate regularly works with corporate clients, hospitals and universities on providing creative immigration solutions to visa and work authorization needs of foreign nationals including skilled workers, persons of extraordinary ability, managers and executives, professionals, treaty investors and traders, as well as corporate trainees.

Kate received her J.D. from the American University and is admitted to practice in New York and New Jersey.

A member of the American Immigration Lawyers Association, Kate chairs the New York CLE Committee and serves as Secretary of New York District Office Liaison Committee.


Hot Topics in Immigration Law Agenda

H-1B Visas H-1B Alternatives Extending Your OPT Permanent Residence Status Travel Issues Q&As


H-1B Visas

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

Procedure and processing times Specialty occupation issues 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? 65,000 H-1Bs

FY 2010 still going! FY2009 gone by April 2008 FY2008 gone by April 2007 FY2007 gone by May 2006 FY2006 gone by August 2005 FY2005 gone by October 2004

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 FY2006 gone by January 2006


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”

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


2009-2010 Issues

■ Fewer job offers■ Uncertainty- quickly reaching the cap in past

years vs. FY 2010■ 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.


H-1B and TARP Recipients

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 Recipient determination depends upon the type of borrowing

arrangement between the entity and the Federal Reserve Term Asset-Backed Securities Loan Facility (TALF)

(received discounted gov’t loans) What is TARP funds are repaid? It’s unclear.


Alternatives to H-1B

O-1 (extraordinary ability) E-3 (Australians) TN (Canadian/Mexicans) J-1 (new rules limiting applicability) E visas (treaty between home & U.S.) L visas (intra-company transfer to U.S.) I visa (journalists – disseminate news abroad) OPT Extension- STEM


Alternative Visa Options (cont’d)

EAD through spouse’s status J-2 E L-2 I-485


Permanent Resident Status

Family Investment Asylum Employment Diversity Visa Lottery


Permanent Resident StatusEmployment

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

interest/exceptional Multiple petitions


Permanent Resident StatusEmployment (Cont.) Extraordinary Ability or

Outstanding Researcher/ Professor EB-1 Standards Documentation Reference letters

National Interest Waiver EB-2 Standards


Permanent Resident StatusEmployment (Cont.)

Labor Certification Application (PERM) Employer Sponsored Recruitment Prevailing wage Legal issues Timing First of 3 steps EB-2 or EB-3


Permanent Resident StatusAdjustment of Status (I-485) Timing

Preference categories/quotas Priority dates Processing times

Concurrent filing (I-140/I-485) Employment Authorization Advance Parole


Permanent Resident StatusAdjustment of Status (I-485) Adjustment Portability H-1B Extensions

One Year Three years

Spouses


Travel Issues

Potential Problems Intent to return – F & J vs. H & O Visa interview delays Security clearances Technology Alert List 222(g)

Possible solutions Don’t travel Canada/Mexico Advance Parole


Contact Information

Kate Kalmykov, Esq. Telephone: 212-796-8856 Fax: 212-297-1799 Email: [email protected]

post student years: immigration options post student years: immigration options november 2009...

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