presented to: uncc students april 13, 2018 · 2018-04-23 · eb-1 •outstanding researchers,...
TRANSCRIPT
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Presented to: UNCC Students
April 13, 2018
6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com
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Based in Charlotte, North Carolina.
One of the largest immigration law firms in the Southeast.
Seven (7) immigration attorneys & twenty five plus (25+) paralegals/support staff.
Our clients include:
◦ Numerous NC colleges & universities
◦ Several NC healthcare systems
◦ One of the largest automotive suppliers in the world
◦ One of the largest electronic medical records companies in the U.S.
◦ The second largest public school system in NC
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BA & JD – Wake Forest University
Practicing Immigration & Visa Law since 1984
American Immigration Lawyers Association (AILA)
◦ Member since 1985◦ Carolinas Chapter President 1995 & 1996◦ Served on National Board of Directors
Certified as a Specialist in Immigration & Nationality Law by NC State Bar since 1997
Member of Alliance of Business Immigration Lawyers (ABIL)
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B.S., Meredith College
J.D., Campbell University
Practicing Immigration & Visa Law since 2006
Ms. Barnette practices employment-based immigration law.
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B.A., Davidson College
J.D./M.A. (cum laude), University of Florida
Practicing Immigration & Visa Law since 2012
Mr. Hummel practices family-based and global immigration law.
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Introduction
Temporary Work Visas (including H-1B Visa)
“Green Card” Options, Process & Availability
The Era of President Trump
Questions & Answers
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Department of Homeland Security comprised of:
◦ US Citizenship & Immigration Services (“CIS”)
◦ US Immigration & Customs Enforcement (“ICE”)
◦ US Customs & Border Protection (“CBP”)
Department of State:
◦ Responsible for visa services at U.S. consulates abroad
Department of Labor:
◦ Administers Permanent Employment Certification Application process
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Two Visa Categories
Nonimmigrant – TemporaryImmigrant –
Permanent (Green Card)
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Non-immigrant Visa Type
Sponsorship Required Duration of Visa
Self Petition Work Permission Spousal Work Permission
H-1B Employer must sponsor and cover all
associated fees
Up to 6 years (longer in some
cases)
No Yes No, unless I-140 approval for H-1Bspouse (with EAD)
H-3 Trainee Employer must sponsor
Up to 2 years, no extension
No Employmentonly incidental
to training, stipend
No
J-1 Exchange Visitor
(Trainee/Intern)
Approved agency must sponsor
18 months (Trainee); 12
months (Intern)
No With DOS approval
Yes, with EAD
L-1A/L-1BIntracompany
Transferee
Employer must sponsor
Up to 7 years (L-1A) or 5years (L-1B)
No Yes Yes, with EAD
E-1/E-2 Treaty Trader/Investor
Employer must sponsor
Up to 5 years, renewable indefinitely
Yes- If owner of company
Yes Yes, with EAD
O-1 Extraordinary
Ability
Employer mustsponsor
Up to 3 yearsand extensions
possible
No Yes No
TN- NAFTA Employer must sponsor
Up to 3 years and extensions
possible
No Yes No
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B-1/B-2 (Visitor Visa/Visa Waiver)
F-1 (Student Visa)
H-3 & J-1 (Trainee Visas)
L-1 (IntracompanyTransferee)
E-1/E-2 (Treaty Visas)
O-1 (Extraordinary Ability)
TN-1 (NAFTA Professional)
H-1B (Professional)
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On March 9, 2016 USCIS announced a 24-month extension of post-completion OPT based on a STEM (Science, Technology, Engineering, or Math) degree
Employer must participate in E-Verify
Current list of eligible STEM degree is available online (www.ice.gov; 2012 was last revision); uses CIP code found on Form I-20
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Can base STEM OPT request on current or prior STEM degree
Requires employers to complete formal training plan with F-1 Student
File Form I-765 prior to post-completion EAD expiration
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Always employer-specific
May be position- and location-specific (depending on visa type)
Processing times for visa petition approval/visa issuance normally 120-240 days
Premium Processing Program - $1,225 secures 15-day review
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Position offered must require at least a Bachelor’s degree
FN must possess degree (or equivalent) related to position offered
Visa is location & job specific
Fees –◦ Government filing fees total $1710 (if less than 25 FTEs) or $2460 (if
more FTEs)
◦ Attys fees vary by firm
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Six (6) year limit (with exceptions) – granted in maximum of 3-year increments.
Employer must file petition, agree to pay “required wage” & return transportation costs upon termination.
FN in valid H-1B status may transfer & work for new employer upon filing of H-1B petition (portability).
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Since 1990, annual cap on number of H-1B petitions which may be approved.
USCIS may only approve 65,000 visa petitions per fiscal year.
Additional 20,000 visas authorized for those with U.S. Masters & Ph.D. degrees.
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Filing period began April 2, 2018.
Once cap is reached, no “cap subject” H-1B petitions accepted until April 1, 2019 (absent change in law).
USCIS suspended Premium Processing for all H-1B cap cases.
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Filing period began April 3, 2017.
On April 7, 2017, USCIS reached 65,000 H-1B petition cap AND 20,000 H-1B “advanced degree” cap.
USCIS received approximately 199,000 total H-1B petitions for FY2018.
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The following are subject to annual cap:
◦ FNs seeking H status for 1st time.
◦ FNs changing from cap-exempt to cap-subject employer.
The following are NOT subject to annual cap:
◦ FNs currently in H-1B status (i.e., extensions of stay or change of employers) or FNs who have been previously counted against H-1B cap (if total of 6 years were not used up).
◦ FNs who work at institutions of higher education or nonprofit related to/affiliated with institutions of higher education or nonprofit/gov’t research organizations.
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Applies to F-1 students on OPT where H-1B petition accepted on or after April 1
Extends employment authorization from OPT end date (if after April 1 and before October 1) to H-1B effective date
Does not authorize travel
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E-1/E-2 - Treaty Trader/Treaty Investor
O-1 - Extraordinary Ability
TN - Treaty NAFTA
L-1 – Intracompany Transferee
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One does not need a visa status to own all or part of a U.S. company.
But… one does need a visa to work for a company.
USCIS wants to see an “employer-employee relationship” in connection with a visa petition/application.
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Five Ways to Qualify
Family Asylum Investment Diversity Lottery Employment
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•Outstanding Researchers, Extraordinary AbilityEB-1
•Advanced Degree Professionals and FNs of Exceptional AbilityEB-2
•Professionals, Skilled and Unskilled WorkersEB-3
•Special ImmigrantsEB-4
•Employment CreationEB-5
Five (5) employment-based categories:
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International Managers & Executives
Outstanding Professors & Researchers*
FNs of Extraordinary Ability *
◦ *USCIS regulations contain list of eligibility criteria
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To qualify as “advanced degree professional”, FN must possess advanced degree & position must require advanced degree (or equivalent).
USCIS regulations set out criteria for exceptional ability.
Can bypass labor certification process by proving employment would serve U.S. “National Interest”
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For FN who possesses 4-year university degree where job offered requires degree; or
For FN who possesses minimum of 2 years of experience in position requiring minimum of 2 years of experience.
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STEP 1 – Labor Certification (“PERM”)
◦ Requires proof of no minimally qualified available U.S. workers
◦ Current Processing times: 5 months if no DOL audit
◦ 8+ months if audited
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STEP 2 – Immigrant Petition, Form I-140
◦ Current processing times: Six (6) months +
Step 3 – Application for Adjust Status, Form I-485**
◦ Current Processing times: Up to nine (9) months
** APPLICATION CANNOT BE FILED UNLESS PRIORITY DATE IS CURRENT
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EB-1
All Countries except
for India and China:
Current
India:
January 1, 2012
China:
January 1, 2012
EB-2
All Countries except
for India and China:
Current
India:
December 22,
2008
China:
August 1, 2014
EB-3
All Countries except
for India, China &
Philippines:
Current
India:
February 1, 2008
China:
June 1, 2015
EB-4
All Countries
expect Mexico,
El Salvador,
Honduras, and
Guatemala:
Current
EB-5
All Countries
except China:
Current
China:
July 22, 2014
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January 27, 2017 - President Trump signed an executive order halting refugee admission and barring people from seven countries:
◦ Iran, Iraq, Yemen, Libya, Sudan, Somalia, Syria
The order was immediately challenged in several Federal Courts. A nationwide injunction was issued on February 3, 2017.
February 9, 2017 - the 9th Circuit Court of Appeals ruled against the reinstatement of the travel ban.
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Ban 3.0 was announced September 24, 2017 and went into effect December 8, 2017
Covers:◦ North Korea and Syria- All immigrant and non-immigrant visas◦ Chad, Libya, and Yemen- All immigrants and non-immigrant
tourist and business travelers◦ Iran- All immigrants and non-immigrants except F, J, and M
visas (though with additional scrutiny)◦ Somalia- All immigrants. Non-immigrant visas will have
additional scrutiny;◦ Venezuela- a ban on non-immigrants visas for certain
government officials and their families
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◦ Applies to those outside the U.S. on the effective date without a valid visa
◦ Exceptions
lawful permanent residents
FN’s admitted or paroled in the U.S. on the effective date;
FN’s with valid travel documents
Dual Nationals
◦ In addition, there is a waiver process available
Must prove denial of entry would cause undue hardship;
Entry of the FN would not pose a threat to the U.S; and
Entry of the FN would be in the national interest.
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◦ Buy American and Hire American Executive Order
◦ Revocation of H-4 EADs
◦ Revocation of International Entrepreneur Parole
◦ Renegotiation of NAFTA
◦ Changes to the H-1B lottery System
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6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com