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Life After OPT: Work Visa Options During the seminar: Please use your “Chat” function to ask questions

Wolfsdorf Immigration Law Group

Tien-Li Loke Walsh, Esq.

Attorney at [email protected]

1-800-VISA-LAW

1416 2nd Street

Santa Monica, CA 90401

© 2010 Wolfsdorf Immigration Law Group (all rights reserved)

The contents of this document are proprietary and should not be duplicated or shared without express permissionfrom Wolfsdorf Immigration.



CPT and OPT

• Curricular Practical Training (CPT)– Allows employment during school year

under certain circumstances

• Optional Practical Training (OPT)

– How long does it last for?



OPT – New Changes – April 2008

• 17-Month Extension of OPT (total of 29 months)

– STEM students (Science, Technology, Engineering,

Mathematics)

– DHS STEM designated degree program list –

www.ice/gov/sevis– Job must directly relate to degree major

– Employer must be registered with E-Verify

– STEM OPT must be from degree that OPT is based on



OPT (continued)

• Unemployment periods

– 90 days of unemployment = out of status

(regular 12-month OPT)

– 120 days of unemployment = out of status

(STEM 29-month OPT)

• How to avoid periods of “unemployment”

– Volunteer – minimum 20 hours in your field of study



OPT (continued)

• Don’t forget to apply– 90 days prior to graduation; or

– 60 days after graduation

• Apply even if you plan to return home after

graduation

• Use it as a stepping stone – find that H-1Bemployer!



What Are Your Options?

• H-1B Professional Occupation Visa– What is a professional occupation?

– Job must be one that requires a Bachelor’s

degree in that field to perform the job

– E.g. Financial Analyst, Accountant, Engineer,

Account Executive, Operations Analyst,

Computer Scientist, Software Engineer,Graphic Designer



The H-1B Quota

• Fiscal Year (FY) October 1 to September 30

• H-1B Quota/Cap – private industry

employers

– 65,000 per fiscal year• 5,400 Singapore

• 1,400 Chile

– 20,000 for U.S. graduates with MA or higherdegree



Cap-exempt organizations

• i.e. employer is not subject to the H-1B

cap

– Institutes of higher education, i.e. universities

and colleges– Non-profit organization affiliated with institute

of higher education

– Non-profit research organization– Government research organization



H-1B Government Filing Fees• Training fee

– $1,500 for employers with 26 or more employees

– $750 for employers with 25 or fewer employees• All new H-1B’s, change-of-employer and first extension

• Private industry only; cap-exempt organizations do not paytraining fee

• Fraud fee of $500– All new H-1B’s and change of employer petitions

– Not required for extensions

– All must pay (private industry and cap-exempt organizations)

• Regular filing fee $320; $300 for derivatives• Premium processing (Optional): $1,000



H-1B Portability

• Can transfer H-1B to new employer at anytime

– not subject to H-1B cap again (already counted

as part of the H-1B cap)

• Portability allows commencement of new

job upon “filing” of new petition – no need

to wait for approval



H-1B Portability

• Cap-exempt H-1B to cap-subject employer(university to private industry)

– Subject to H-1B cap (never been counted)



Other H-1B Scenarios• H-1B Remainder Option – previously held

H-1B status and did not use 6 yearmaximum?

– e.g. H-1B to F-1 to H-1B

– e.g. previously held H-1B and then left U.S.• Use remainder of time – not subject to cap

• If physically outside U.S. for more than one year:

– Recapture unused time (not subject to cap); or– File for new 6 years but subject to H-1B cap



H-1B Process• Agencies involved: USCIS and Department of

Labor (DOL)

• Department of Labor steps:1. Verify Federal Employer Identification Number (EIN)

2. Labor Condition Application (LCA)• must post LCA at worksite for 10 consecutive business days

in two conspicuous locations– LCA attestations include

» Must pay prevailing wage

» Actual wage – cannot include discretionary bonuses,commissions, benefits, 401(k)

– Must offer same benefits as offered to U.S. workers– No strike at workplace

– Must keep Public Access File

• Submit LCA to DOL online



H-1B Process

• USCIS steps1. Submit application via mail to USCIS

• Support Letter with job description

• Forms I-129, I-129 H, I-129 Data Form

• Government Filing Fees

– Training fee ($1,500/$750) must be paid by the employer



Employer Responsibilities

• Termination• must offer reasonable costs of transportation home

• must notify USCIS

• No benching



Who is Responsible for all the Fees?• Training fee must be paid by employer

• Fraud fee and other govt. filing fees can be paidby alien or employer

• Legal fees can be paid by alien or employer

• If foreign national pays any of the filing fees orlegal fees - MUST STILL BE PAIDPREVAILING WAGE

• E.g. Prevailing wage is $60,000; alien salary is $60,000. If

alien pays for any of legal fees or government filing fees –salary will drop below PW.

• Who will know?



H-1B Audits

• Increase in fraud investigations andworksite visits

• USCIS hired 1,500 investigators to conduct

25,000 worksite visits



Timing Issues – When to File H-1B• March madness: since October 1, 2003

– File April 1, but October 1 start date – fileASAP!

– FY 2010 – cap reached December 21, 2009

– FY 2011 (as of October 22, 2010)• Regular cap: 44,300 out of 65,000

• Masters cap: 16,200 out of 20,000

• H-1B computer generated lottery



New Rules for F-1s

• H-1B Cap-Gap Relief – applies to all F-1 OPT students who file H-1B

petition during acceptance period (on or after

April 1)– If file H-1B petition on or after April 1

• F-1 status automatically extended

• OPT (employment authorization) automaticallyextended



F-1/H-1B Cap-Gap Relief

– If selected for H-1B – cap-gap relief until September 30

(H-1B starts on October 1) – no gap!

– If not selected, cap-gap relief ends upon rejection,denial or revocation (60 day grace period from

notification)

GraduationJune 2010

OPTstartsJuly 2010

File H-1BApril 1, 2011

OPT endsJuly 2011

October 12011(H-1Bstarts)CAP-GAP

PERIOD



H-1B Professional Occupation Visa

• What Happens when you Reach 6-year

Cap? Is 6-years Really 6 Years?

– Recapture time spent abroad

– 2 ways to extend H-1B beyond 6 years• Green card application pending for more than 1 year

(one-year increments)

• I-140 approved and cannot file I-485 application

because of backlogs or “retrogression” (three-yearincrements)



H-4 Spouses and Children

• No employment authorization• Can go to school

• If H-4 spouse wants to work, apply for own

visa



Other Nonimmigrant Visa Options –Alternatives to H-1B Visas

• Free Trade Agreement Visas– H-1B1’s for Chile and Singapore

– TN NAFTA visas for Canadians and

Mexicans

– E-3 visas for Australian professionals



Other Nonimmigrant Visa Options

• L-1A Multinational Executive/Manager Visa orL-1B Specialized Knowledge

• One-year abroad at parent, affiliate or subsidiary

as an executive, manager or specializedknowledge individual

• Must be coming to U.S. to fill executive,

managerial or specialized knowledge position



L-1A/L-1B Visa

• L-1A – total of 7 years• L-1B – total of 5 years

• Spouses and children receive L-2 visa

• Spouses may apply for work permit –

unrestricted employment

• Fast-track green card (EB-1)



Other Nonimmigrant Visa Options

• E-1/E-2 Treaty Trade and TreatyInvestor Visas

• Must have treaty between U.S. and Treaty

country• At least 50% of company must be owned by

Treaty country

• Foreign national must have nationality of Treaty Country



E-1/E-2 Visa

• E-1 Treaty Trader– 50% trade must be between Treaty Country and U.S.

• E-2 Investor Visa

– Must make substantial investment• Can start-up company or buy company as E-1 or

E-2

• Category for E-2 employees– Must be executive, manager or essential employee



E-1/E-2 Visa

• Spouses and children receive E-1/E-2• Spouses can apply for work permit –

unrestricted employment



O-1 Alien of Extraordinary Ability• Sciences, education, athletics, business, arts, motion

pictures and television

• Major award• Lesser national or international prizes of awards

• Membership in associations requiring outstanding achievements

• Published materials or mainstream media written by others about thealien

• Participation, individually or on a panel, as the judge of the work of others

• Original contributions of major significance

• Authorship of books or articles

• Conference presentations

• Critical role for distinguished organizations or productions/events• High compensation/salary

• Commercial success

• Display of work at exhibitions, film festivals



Other NIV Options

• R-1 Religious Worker• J-1 Visa

– Intern or Trainee

– Requires foreign degree and/or experience



Immigrant Visa (“Green Card”) Options

• Green Card Lottery (www.travel.state.gov)

• 50,000 green cards• Registration period: October 5, 2010 to

November 3, 2010• No application fee

• Must be eligible to participate

• Based on country of birth (not citizenship)• Spouses can “cross-charge”



Immigrant Visa (“Green Card”)Options

• Family Based Immigrant Visas– Immediate Relative: spouse, parent, minor

children of U.S. citizens

• Immediate benefits – work permit and traveldocument within 2-3 months

• 6-8 month processing

• Conditional 2 year green card (marriage cases)• Adult child must be 21 years old



Family Based Immigrant Visas continued...

• Unmarried Adult Children of U.S. citizens (F1)

(6 year backlog)

• Spouse/Children of Legal Permanent Resident(LPR) (F2A) (6-12 month backlog)

• Unmarried adult children of LPR (F2B) (9 yearbacklog)

• Married adult children of U.S. citizens (F3) (9 yearbacklog)

• Brothers and sisters of U.S. citizens (F4) (11 yearbacklog)



Employment Based Immigrant Visas

• EB-2 (Second Preference)– Advanced Degree Holders

• Masters or higher degree or foreign equivalent

• BA plus five years progressive experience

– Schedule A, Group II Alien of Exceptional Ability inArts, Sciences or Performing Arts

– National Interest Waiver (NIW)

• EB-3 (Third Preference)

– Professionals with BA degree or foreign equivalent– Skilled Workers with 2 years experience

– Other Workers




• EB-2 vs. EB-3 – why does it matter?• Retrogression

– EB-2 vs. EB-3 processing times

– Backlogged countries: China and India



Process• Step 1: PERM Labor Certification process

• USCIS and DOL• Employer must conduct “good faith” recruitment efforts and

show there is no qualified U.S. worker to do the job

• Step 2: I-140 Immigrant visa petition

• Step 3: I-485 Application to Adjust Statusto Permanent Residence (AOS)

• Employment Authorization Document (EAD)

• Advance Parole travel document

» Both issued within 60-90 days of filing AOS



•Priority Date (PD) = date of filing PERM application or filing of I-140Immigrant Visa Petition

•If retrogressed – can’t file I-485 AOS until PD is current

•Visa Bulletin (www.travel.state.gov)



PERM Issues• Deciding between EB-2 and EB-3

– NOT based on alien’s educational background– Based on actual minimum requirements for job

• Tricks that don’t work:

– Tailoring minimum job requirements to yourexperience or education

– Foreign language requirements

• Generally cannot use employment experience

gained with sponsoring employer• Cannot use unauthorized employment



Common Green Card Issues

• When to Start Green Card Process

• 4.5 years into H-1B• Make sure you like the employer and vice versa



Common Green Card Issues

• What Happens to the Green Card if you

Change Employers?• Keep green card if:

• I-140 approved; and

• I-485 pending for more than 180 days (approx. 6

months); and

• job is same or similar position




• EB-4– Religious Worker visas

• EB-5

– Million Dollar Investor Green Card

– $500,000 in area of high unemployment

• Must create 10 jobs




• EB-5 Regional Programs– $500,000 in pre-approved program

– Pooled investment

– 3 step process• I-526 Immigrant Petition by Alien Entrepreneur

• I-485 - Adjustment of Status Application

– 2 year conditional green card

• I-829 – Removes conditional aspect of green card



Q & A Please use your “Chat” function to ask questions

For follow-up questions:

Tien-Li Loke Walsh, Esq.

Wolfsdorf Immigration Law Group

[email protected]

1416 2nd Street

Santa Monica, CA 90401

For a copy of the PowerPoint or “Immigration Options” package, please contact:Daniel Manuel at [email protected]

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