fragomen, del rey, bernsen & loewy, llp 1 new york, ny april 15, 2010 immigration seminar

Fragomen, Del Rey, Bernsen & Loewy, LLP

1

New York, NY

April 15, 2010

Immigration Seminar


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Freddi Weintraub, Partner


7 Hanover Square

New York, NY 10004-2756

Email: [email protected]

(212) 891-7560 TEL

(212) 446-0375 FAX

www.fragomen.com


3

Susanah WadeClient Services Manager


7 Hanover Square

New York, NY 10004-2756

Email: [email protected]

(212) 891-7585 TEL

(212) 446-0377 FAX

www.fragomen.com


4

Nonimmigrant and Immigrant Visas

• Nonimmigrant visas

- Temporary stay in the US

• Immigrant Visas

- Permanent Resident Status in US


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Most Common Business Nonimmigrant Categories

• B-1 Visitors for Business

• E-1/E-2 Treaty Traders/Investors

• E-3 Australian Nationals

• F-1 Foreign Students – Practical Training Provisions

• H Temporary Worker

• J-1 Exchange Visitor

• L-1 Intracompany Transferee

• O-1 Persons of Extraordinary Ability

• TN Trade NAFTA – Canadian and Mexican Professionals


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PREMIUM PROCESSING

• EXPEDITED PROCESSING – 15 CALENDAR DAYS TO ADJUDICATE PETITION

• E-1, E-2• H-1B, H-3• L-1• O-1, O-2• P-1, P-2, P-3• Q-1• R-1• TN


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B-1 Visitors for Business

• B-1 Visitors for Business

Foreign national engaging in short-term business on behalf of overseas employer

• B-1 in Lieu of H-1B or H-3

Foreign nationals otherwise qualifying for H-1B or H-3 nonimmigrant status coming to perform

H-1B services or participate in an H-3 training program, and who will receive no salary in the US


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E-1/E-2 Treaty Traders and Investors

• Transfer of managerial or essentially skilled employees to the US

• Crucial mechanism is existence of treaty or commerce and navigation or bilateral investment treaty between the US and country of nationality of transferring employers

• Employee must possess same nationality as the company


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E-1/E-2 Treaty Traders and Investors Cont’d

• E-1 appropriate where enterprise in US is engaged in substantial trade with treaty country and the company is majority owned by treaty nationals

• E-2 appropriate where the US company is majority owned by treaty nationals and a substantial, active investment has been made

• Initiate visa application in US through change of status or at US consulate abroad

• Company must be registered at consulate• Spouses eligible for employment authorization


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E-3 Australian Nationals

• Requirements similar to H-1B visa for professional workers

• Specialty occupation requiring service of an Australian individual with at least US Bachelor's degree or equivalent in field related to job

• Labor Condition Application filing with Department of Labor


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E-3 Australian Nationals Cont’d

• Change of status petition filed at USCIS Service Center

• Approval Notice (Form I-797) issued upon approval – present at consulate abroad to obtain visa

• Visa application directly at US consulate abroad as long as pre-arranged job offer exists in the US


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E-3 Australian Nationals Cont’d

• Visa valid for 2 years• Renew indefinitely• 10,500 visas available each year • Spouses/children accompanying or joining E-3

applicant not subject to numerical limitation and need not be Australian nationals

• Dependent spouses eligible for Employment Authorization


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F-1 Visa

• Full-time matriculated student at approved school• “Optional Practical Training:” pre- or post-graduation

– 12 months; no more than 20 hrs/week during school year, full-time during vacations

– need employment authorization document (EAD); – not tied to particular employer– 17 Month Stem Extension with a STEM degree. List

located at http://www.ice.gov/sevis/stemlist.htm • “Curricular” practical training if part of educational

program


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H-1B VISA - Specialty Occupation

• Entry Level Requirement Bachelor’s Degree in a specific related field, or equivalent, at a minimum

• 3 for 1 Rule -- 3 years of experience equals one year of university-level studies

• Prevailing wage requirement – 100%

• Initial approval: 3 years. 6-year max. stay w/extension

• Extensions beyond 6 years in limited circumstances

• Concurrent H status for more than 1 employer


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H-1B Visa (Cont’d)

• Annual cap ceiling of 65,000

• Carve outs of 1,400 for Chile and 5,400 for Singapore

• Additional 20,000 for foreign nationals with US earned advanced degrees (Master’s or higher)

• Exemption from cap:– Change of employer H petitions – exception if changing from exempt to

non exempt organization

– Institution of higher education;

– Nonprofit affiliated with institution of higher education;

– Nonprofit research organization or governmental research organization;

– Previously granted H-1B status within the past 6 years.


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H-1B Portability

• H-1B employees can begin new employment upon filing of a new H-1B by a new employer if:– Foreign national has been lawfully admitted to US

– Foreign national has not been employed without authorization subsequent to his/her lawful admission

– A non frivolous H-1B is being filed for the new employment before the expiration of foreign national's current status


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H-1B Terms of Stay

• Initial 3 years may be granted with extension of 3 years for maximum of 6 years

• Must reside abroad for 1 year before eligible for new H-1B except where:– I-140 Immigrant Petition or Labor Certification pending and 365

days have elapsed since permanent residency process was initiated. Extension in 1 year increments until final decision on permanent residency process

– Per country limitation (retrogression) prevents foreign national from applying for immigrant visa. Extensions beyond 6 year limit available in 3 year increments until I-485 is adjudicated. Must have approved I-140


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H-1B Terms of Stay Cont’d

• Time spent in L-1 status counts against H-1 maximum period of stay

• Dependents receive H-4 visas and not permitted to work in US

• Time spent in H-4 or L-2 status does not count against H-1 maximum period of stay


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H-1B Visa - Government Fees

• Filing fee - $320• Training fee - $1,500 (more than 25 full time workers)

$750 (less than 25 full time workers) - must be paid by employer, and cannot be charged to foreign national– When seeking initial H-1B– When seeking first extension– When seeking change of employers– Academic institutions are exempt

• Anti-fraud fee - $500 • Supplemental “Premium Processing” fee - $1,000 if 15

day processing is desired (otherwise, typical processing time of 12-16 wks.)


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H-3 Training Visa

• Designed for participation in established company training program

• Training cannot be conducted or engaged in with the intention of eventual employment in the United States

• Foreign national cannot be employed to engage in productive employment that is other than incidental to the training program


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J-1 Training Visa

• Exchange visitor program/maintain nonimmigrant intent• Categories: trainees, interns, research scholars, students• Requires detailed training program submitted to sponsor

organization together with application form• Trainee- foreign degree and 1 year of work experience

outside the US or 5 years work experience outside the US• Intern - Currently enrolled in academic institution outside

the U.S. OR graduated from such institution within 12 months prior to the start date


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J-1 Training Visa Cont’d

• Some J-Visa holders must return to home country for at least 2 years after completion of program

– Foreign medical graduates

– If program funded in whole or part by US or foreign national’s home government

– Foreign nationals who possess skills determined to be in short supply in home country

– Waivers available


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L-1 Intra Company Visa

• Render services to a U.S. employer that is the parent, subsidiary, affiliate, or branch of an entity abroad for which the individual worked for at least 1 year (6 months for transfers under a blanket petition) within the preceding 3 years

• L-1A – managerial or executive employment• L-1B – specialized knowledge employment• Spouses eligible for employment authorization


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“TN” Pursuant to North American Free Trade Agreement (NAFTA)

– Must have nonimmigrant intent

– Applies to Citizens of Canada and Mexico

– Specific list of occupations - Appendix 1603.D.1

– Canadians submit application at an entry point to the US – no labor condition application (LCA) requirement

– Mexicans apply at a US consulate

– Mexicans need visa

– 3 year initial admission - 3 year extensions available through USCIS or at port of entry


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O Visa• Extraordinary ability in science, arts, education, business or athletics

– Initial approval for up to 3 years, then 1 yr. extensions, no maximum stay

– One of small percentage who have risen to the top of their field

– Standard (“distinction”) is relaxed for the arts

• Need to document 3 out of 8– national or international awards

– membership in professional organizations that require outstanding accomplishments of their members

– authorship of scholarly articles

– published material about the individual in professional publications

– original contributions of major significance to the field of expertise

– judge of the work of others

– employment in critical capacity with organizations with distinguished reputations.

– high salary compared with others in same field


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Immigrant Visas

• Immigrant Visa = Permanent Residence/Green Card

• Available mainly based on employment in US or family based relationship


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Employment Based Immigrants

• Qualify under 1 of 5 employment based preference categories

• Steps:

– #1: Labor Certification (if necessary)– #2: Petition with USCIS (Form I-140 petition) under

appropriate employment based categories– #3: Application for Permanent Residence:

(A) Adjustment of Status Application (Form I-485); or

(B) Consular Processing


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Employment Based Petitions

• Employment Based First Preference (EB1)– Extraordinary Ability Petition (EB1-1)– Outstanding Researcher/Professor Petition (EB1-2)– Intra-company executives and managers (EB1-3)

• Employment Based Second Preference (EB2)– Advanced Degree Professionals; Exceptional Ability Aliens; National

Interest• Employment Based Third Preference (EB3)

– Skilled Workers, Professionals and Unskilled Workers• Employment Based Fourth Preference (EB4)

– Religious workers• Employment Based Fifth Preference (EB5)

– Investors of $1 billion or more or of $500,000 in high unemployment area


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Extraordinary Ability AliensEB1-1

• Extraordinary Ability - criteria virtually identical to O-1 visa category on page 25 except for those in the arts

• Extraordinary ability in the sciences, arts, athletics, business and education

• No Labor Certification required


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Outstanding Professors and Researchers

• International recognition

• 3 years experience

• Tenured/tenure-track position or

• Comparable research position with research facility

• No Labor Certification required


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Criteria for Outstanding Researcher Classification

• Evidence of recognition internationally, as being outstanding in the field (at least two of the following):– Documentation of the receipt of major prizes or awards for outstanding

achievement in the academic field;– Documentation of membership in associations in the academic field which

require outstanding achievements of their members;– Published material in professional publications written by others about the

alien’s work in the academic field;– Evidence of the alien’s participation, either individually or on a panel, as

the judge of the work of others in the same or an allied academic field;– Evidence of the alien’s original scientific or scholarly research

contributions to the academic field; or– Evidence of the alien’s authorship of scholarly books or articles (in

scholarly journals with international circulation) in the academic field.


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Second Preference (EB2)

• Advance Degree Professionals - Advanced degrees or equivalent of Bachelor’s degree plus 5 years progressive professional experience/Labor certification required

• Exceptional ability in the arts, sciences and business/No labor certification required

• National Interest Waiver/Self Petition/No labor certification required


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Exceptional Ability in Arts, Sciences and Business

• Degree of expertise significantly above that ordinarily encountered• Widespread acclaim and international recognition• Exceptional Ability determined by satisfying at least 3 of 6 categories

– Degree relating to exceptional ability– Letter from current or former employer showing at least 10 years of

experience– License to practice profession,– High salary or remuneration denoting exceptional ability– Membership in professional association– Recognition for achievements and significant contributions to industry by

peers, government entities or professional or business associations– Comparable evidence allowed if above criteria not applicable e.g. expert

opinion letters• No labor certification required


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National Interest Waiver

• National Interest Waiver– Can be difficult to obtain

– Employment in area of substantial intrinsic merit

– Proposed benefit is national in scope

– Alien presents significant benefit to the field

• National interest would be adversely affected if labor certification required.

• Past record of alien justifies projections of future benefit to the national interest.

– No labor certification required


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Third Preference (EB3)

• Bachelor’s Degree or US equivalent

• Skilled workers with 2 years of relevant training or experience, but no Bachelor's degree

• Other workers without a Bachelor's degree and less than 2 years of training or experience

• Labor certification required


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Fourth Preference (EB4)

• Religious workers– Members of religious occupations– Members of religious vocations evidenced by

taking vows– No labor certification required


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Fifth Preference (EB5)

• Investors making investment of $1 million or more ($500,000 in high unemployment area)

• New commercial enterprise

• Creation of a least 10 positions for US citizens or US permanent residents

• No labor certification required


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Labor Certification (PERM)

• PERM – Program Electronic Review Management

• Priority Date given upon filing with the Department of Labor

• Search for qualified US workers minimally qualified, at appropriate wage

• “Special Handling” provisions for college/university professors


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Labor Certification (Cont’d)

“Special Handling” for College/University Professors

• File within 18 months of appointment• Can re-test labor market if outside 18

months• Seeks best qualified not minimally qualified• Prevailing wage requirement• Union notification or posting requirement


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PERM – Application Process

• Registration of company with Department of Labor (DOL) - by employer

• Obtain prevailing wage - 100% of prevailing wage must be paid

• Conduct recruitment of US workers Place job order with State Workforce Agency for 30 days Two print ads in Sunday newspaper of general circulation. May use one journal

ad in lieu of one Sunday for professional jobs requiring advanced degree & exp. Ads must include employer name & location, and reflect nature of job

3 other types of recruitment for professional jobs (e.g., ads on employer’s web site; employee referral program, online ads from newspaper, school/job fairs, etc.)


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PERM – Application Process Cont’d

• Recruitment 30 to 180 days prior to filing case• File Form 9089 on-line or by mail – 8 to 12

months turnaround• Recruitment documents are not submitted with

application, but must be kept by employer for 5 years

• DOL may conduct audit before making decision


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FILING FOR PERMANENT RESIDENCE

• File employment based petition, Form I-140 after Form 9089 certified by DOL

If immigrant visa number available:

• File Adjustment of status application (Form I-485) at USCIS; or

• Visa process at U.S. Consulate abroad


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Availability of Immigrant Visas

• Immigrant visa number must be available to apply for permanent residence (Green Card)

• Availability determined by priority date

• If demand for visas exceeds availability results in retrogression

• Cannot file for permanent residence (I-485 or visa process) until priority date current

• US Department of State publishes immigrant visa availability via “Visa Bulletin” – see handout

• Visa Bulletin updated monthly

• Current backlogs for China and India in second preference categories

• Current backlogs for all areas in third preference category


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ADJUSTMENT OF STATUS

• Can be filed concurrently with I-140• Advance Parole may be required -

Form I-131 - dependents and principal applicant may apply

• Employment Authorization (EAD card) - Form I-765 - dependents and principal applicant may apply


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VISA PROCESSING

• Filed at U.S. Consulate in home country or country of last residence

• Can only be filed once I-140 is approved• Involves interview & travel on short notice• Additional documents required

– Medical exam in home country– Police certificates– Military record


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Family Based Categories

• Immediate relatives – visas immediately available– Children (under 21 and unmarried) of US

Citizens– Spouses of US Citizens– Parents of US Citizens (US Citizen son or

daughter must be at least 21 years old to file for parent)


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Family Based Preferences

• Backlogs - Refer to Visa Bulletin for visa availability• First Preference - Unmarried sons and daughters of US

citizens• Second Preference

– 2A, Spouses and Children of permanent residents– 2B, Unmarried sons and daughters (21 years or older)

of US citizens• Third Preference – married sons and daughters of US

citizens• Fourth Preference – brothers and sisters of adult US

citizens


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Considerations: Changing from F-1 (or J-1) to Permanent Residence (Based

on Marriage to U.S. Citizen• Travel risks (do not travel until Advance Parole has

been issued)

• If travel and already married to U.S. Citizen, F-1 visa application (and possibly, entry) likely to be denied

• Best to process in the U.S.

• Risky to file I-485 Application for Adjustment of Status within 60 days of entering in F-1 status.


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Diversity Immigrants

• Natives of country designated as low admission states • The Diversity Visa (DV) 2012 Lottery online entry begins in October,

2010 through November, 2010 (60 day period). Access information at Dept of State’s website @ www.dvlottery.state.gov

• High school diploma or equivalent (admission to US college)• Within 5 years of applying, acquired at least 2 years of work

experience in occupation requiring at least 2 years training or experience

• File electronically with picture/No fee• One application only• Family members eligible i.e. spouse and children• Random selection of winners• Must obtain visa within the fiscal year in which applied

fragomen, del rey, bernsen & loewy, llp 1 new york, ny april 15, 2010 immigration seminar

Documents

bernsen loewy

us slide

treaty nationals e

business e

petition e

us consulate

us company

treaty tradersinvestors