f-1 graduating student immigration presentation 2008

Kuck Casablanca LLC 2006 © www.immigration.net

Immigration Today– Ignorance Immigration Today– Ignorance is Not Bliss. is Not Bliss.

Charles H. KuckCharles H. KuckKuck Casablanca LLC—The Immigration Law Firm

8010 Roswell Rd., Suite 300Atlanta, GA 30350

404/816-8611(F) 404/816-8615

Toll Free: 1-866-286-6200Offices also in Miami and Orlando, Florida, and

Dalton and Gainesville, [email protected]

mailto:[email protected]

http://www.immigration.net/


Our Bizarre Immigration Laws• 1952 Immigration and Nationality Act• Immigration Reform and Control Act of 1986• Immigration Act of 1990• Illegal Immigration Reform and Immigrant Responsibility Act of 1996• American Competitiveness and Workforce Improvement Act of 1998• American Competitiveness in the Twenty First Century Act of 2000• Visa Waiver Permanent Program Act of 2000• Legal Immigration and Family Equity Act of 2000• Extension of 245(i) and other new laws for 2001• PATRIOT Act of 2001• Border Security and Visa Reform Act of 2002• Real ID• And More to come.


The Politics of Immigration


DHS Enforcement Changes

• Employer sanctions enforcement shifted to criminal investigations and focus on companies in industries that touch on national security issues

• Increase in criminal charges for entry violations and document fraud


“Third Country National” Visa Processing

• DHS/DOS restrictions on TCN return to US

• Security checks for citizens of the “classified” countries

• Status breaks mean home country visa processing only and forever

• Export Control licensure enforced


Hiring Foreign Workers—Who can Hire Me?

• First, What is my status?

• Second, What is my citizenship?

• Third, Have I always maintained “status”

• Fourth, What options do I have?– Employer– Self Employment?


Pre-Employment: What Can You Be Asked?

• Do you have the unrestricted right to work in the United States?

If the person answers “no,” the second question is:

• Will you need the Company’s sponsorship to continue or extend your current work authorization status?

If this answer is “yes,” the person is not in a protected class.


Not Protected from Employment Discrimination?

• “Unauthorized” foreign nationals• Foreign nationals in valid non-immigrant status

[H-1B, L-1, F-1 etc.]• Foreign nationals with temporary work

authorization [the EAD]

A policy not to hire persons in these groups is permissible.


BUT, What can I do:TEMPORARY VISAS

• F-1/CPT/OPT Student Visa• B-1 Business Visitor• H-1B Temporary Worker• L-1A and L-1B • E-1/E-2 • TN Professional Work Permit• J-1• O-1


F-1 Student Status/OPT• You must apply for OPT 90 days prior to

graduation• OPT is valid for employment AFTER the

Employment Card is issued!• Extensions of the OPT are available if you are

STEM Grad—17 more months• OPT is valid for work within your field of study• OPT is a bridge to a more long term NIV• Beware the H-1B Gap!• F-1 Students with OPT/CPT -- Tax Issues


H-1B Specialty Occupation

• Requires a bachelor’s degree in the specific specialty as an industry minimum for entry-level position

• Prospective employee must have that specific degree or equivalent

• No requirement for unavailability of labor!



• Preliminary filing with U.S. Department of Labor

• Pay the “prevailing wage” for the occupation in the geographic area of intended employment


H1-B Visas for “Specialty Occupations”

– Caps on H1-B visas

• 65,000 (really 58,000)

• 20,000 Master’s Degree Visa

– LOTTERY – Government filing fees must be paid by employer--new

filing fee is $2,320, most of which must be paid by the employer.

– Maximum stay of 6 years

– With possible one year/three year extensions with Filed Labor Certifications/Approved Immigrant Visa



• The standard processing time for an H-1B visa petition is 150 to 180 days.

• Premium Processing is Available--$1,000• Persons on a valid H-1B visa already may

begin employment with the new employer upon the filing of the new H-1B.

• Self Employed H-1Bs


TN Professional Work Permit• Available only to citizens of Canada and

Mexico

• Temporary entry to engage in activities at a professional level

• Initial entry of 1-3 years, no limit to extensions, except for “intent” issue


E-1 Treaty Trader

• Treaty!• Apply at U.S. Embassy or Consulate (or

INS for limited purposes)• 5 Year Visa• Initial 2-year stay• Unlimited 2-year stay extensions• Substantial trade between U.S. and home

country


E-2 Treaty Investor

• Treaty!• Apply at U.S. Embassy or Consulate or INS for

limited purposes• 5 Year Visa Issuance• Initial 2-year stay• Unlimited 2-year extensions• Make substantial, irrevocable investment/• Not a “Marginal” investment--$$ in the Bank


E-1/E-2 Visas

• Can be on foreign or U.S. payroll

• Actual investor or an executive, supervisory, or essential skills employee of the actual investor

• Actual investor can be a foreign company


L-1 Intracompany Transferee

• USCIS Approves L-1 Visa Status• Canadian L-1 Applications can be made at

Ports of Entry • Initial entry of 3 years, except 1 year for

new offices • Extensions up to maximum 5-year stay for

specialized knowledge and 7-year stay for managers or executives


L-1 Visa Eligibility

• U.S. Company/Branch, must be Parent, Subsidiary or “Related” Company to U.S. Company/Branch

• Prospective Transferee must have been employed by foreign related company for at least 6 months (blanket petition) or 1 year (non-blanket petition) out of the 3 years immediately preceding the transfer to the U.S.


L-1 Visa Eligibility

• The prospective transferee must have worked abroad in an executive, managerial or specialized knowledge capacity– EXECUTIVES

• Primarily directs management of the company and establishes organizational goals and policies

• Exercises wide latitude in discretionary decision-making


Other Temporary Working Visas

• H-3 Trainee Visas

• J-1 Exchange Visitors

• O-1 Persons having extraordinary ability in sciences, arts, education, business, athletics or entertainment industry


IMMIGRANT VISAS

• Green Cards– Labor Certification– Employment-Based

Immigrant Visas– Dual Intent

• Adjustment of Status and Consular Processing

• ... A Long Wait!


IMMIGRANT VISAS

• 675,000 total visas are now allocated to the family and employment based categories annually, only 140,000 are for employment based immigrants

• Each country is allocated a maximum of 26,000 permanent visas annually

• Immigrant visas are allocated quantitatively under “preference” categories


Visa Bulletin—How do They Do That?

• http://travel.state.gov/visa/frvi/bulletin/bulletin_3761.html

http://travel.state.gov/visa/frvi/bulletin/bulletin_3761.html

http://travel.state.gov/visa/frvi/bulletin/bulletin_3761.html


Employment-Based Preferences

• First Preference – 40,000 visas annually– Priority workers

• Aliens with extraordinary ability in the arts and sciences, business, education, or athletics

• Outstanding professors and researchers• Multinational managers and executives

– Labor Certification not required!


Employment-Based Preferences (cont.)

• Second Preference – 40,000 visas annually– members of the professions holding

advanced degrees or persons of “exceptional ability”

– any U.S. degree or foreign equivalent degree above a bachelor’s degree

– labor certification required!


Employment-Based Preferences (cont.)

• Third Preference – 40,000 visas annually– Professionals with bachelor’s degree– Skilled workers with at least 2 years of training

or experience– Unskilled workers (only 10,000 visas and 7

year backlog)– Labor Certification required


Labor Certification

• U.S. Department of Labor verifies that there are no available, willing and qualified U.S. workers for the particular job

• PERM

• Complicated process

• Advertising


Adjustment of Status

• Immigrant petition approved by INS or Applied Concurrently

• Priority date becomes current• Apply for permanent resident status• Available only to aliens who at all times have

maintained a valid nonimmigrant status • 245(i)• 245(k)


Thank you! If we can be of help, please email or call:

Charles H. [email protected]

Marc R. [email protected]

404-816-8611



f-1 graduating student immigration presentation 2008

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