Transcript Immigration Law Overview

Presented to: UNCC Students
February 20, 2015
6100 Fairview Road, Suite 200
Charlotte, NC 28210
P 704.442.8000
www.garfinkelimmigration.com
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Based in Charlotte, North Carolina
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One of the largest immigration law firms in the Southeast
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Six (6) immigration attorneys & twenty (20)
paralegals/support staff
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Our clients include:
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Numerous NC colleges & universities
Several NC healthcare systems
One of the largest automotive suppliers in the world
One of the largest supermarket chains in the U.S.
The second largest public school system in NC
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BA & JD – Wake Forest University
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Practicing Immigration & Visa Law since 1984
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American Immigration Lawyers Association
(AILA)
◦ Member since 1985
◦ Carolinas Chapter President 1995 & 1996
◦ Served on National Board of Directors
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Certified as a Specialist in Immigration &
Nationality Law by NC State Bar since 1997
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Member of Alliance of Business Immigration
Lawyers (ABIL)
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B.A., Hollins College
J.D., Stetson University
Practicing Immigration & Visa Law since 1995
Certified as a Specialist in Immigration &
Nationality Law by NC State Bar
American Immigration Lawyers Association
(AILA)
◦ Member since 1995
◦ Former Secretary, Treasurer, AILA Central
Florida Chapter; Former Treasurer, AILA
Carolinas Chapter
Best Lawyers in America, 2013-2015
International Who’s Who of Corporate
Immigration Lawyers, 2012-2015
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Introduction
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Temporary Work Visas (including H-1B Visa)
◦ Types of Visas
◦ H-1B Issues
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“Green Card” Options, Process & Availability
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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 – Temporary
Immigrant –
Permanent (Green Card)
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Nonimmigrant
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
H-3 Trainee
Employer must
sponsor
Up to 2 years,
no extension
No
Employment
only 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-1B
Intracompany
Transferee
Employer must
sponsor
Up to 7 years
(L-1A) or 5
years (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 must
sponsor
Up to 3 years
and 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)
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E-1/E-2 (Treaty
Visas)*
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F-1 (Student Visa)
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O-1 (Extraordinary
Ability)*
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H-3 & J-1 (Trainee
Visas)
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TN-1 (NAFTA
Professional)*
L-1 (Intracompany
Transferee)
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H-1B (Professional)*
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Always employer-specific
May be position- & location-specific (depending on visa
type)
Processing times for visa petition approval/visa issuance
normally 90-120 days
Premium Processing Program - $1,225 secures 15-day
adjudication/review
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Position offered must require at least a Bachelors degree
FN must possess degree (or equivalent) related to position
offered
Visa is location & job specific
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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 1, 2014
On April 7, 2014, USCIS reached 65,000 H-1B petition cap
AND 20,000 H-1B “advanced degree” cap
USCIS received approximately 172,500 total petitions
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Filing period begins April 1, 2015
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Many expect cap to be reached in early April
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Once cap is reached, no “cap subject” H-1B petitions
accepted until April 1, 2016 (absent change in law)
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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:
◦ Petitions for FNs currently in H-1B status (i.e.,
extensions or change of employers)
◦ FNs who have been counted against H-1B cap within
past 6 years
◦ FNs who work at institutions of higher education or
nonprofit related to/affiliated with institutions of higher
education
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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
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O-1 - Extraordinary Ability
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TN - Treaty NAFTA
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L-1 – Intracompany Transferee
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Five Ways to Qualify
Family
Asylum
Investment
Diversity Lottery
Employment
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Five (5) employment-based categories:
EB-1
•Priority Workers
EB-2
•Advanced Degree Professionals and FNs of Exceptional Ability
EB-3
•Professionals, Skilled and Unskilled Workers
EB-4
•Special Immigrants
EB-5
•Employment Creation
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International Managers & Executives
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Outstanding Professors & Researchers*
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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: 18 months if no DOL audit
◦ 12+ 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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1st Preference
• CURRENT
2nd Preference
• CURRENT
3rd Preference
• January 1, 2014
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1st
Preference
• CURRENT
2nd
Preference
• September 1, 2005
3rd
Preference
• December 22, 2003
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1st
Preference
• CURRENT
2nd
Preference
• March 15, 2010
3rd
Preference
• September 1, 2011
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Increase number of years STEM graduates can participate in
OPT
Allow individuals whose 1st college degree is in STEM but 2nd
degree is not to qualify for STEM OPT (e.g., MBAs with
Bachelors in Engineering)
Expand STEM degree field list
Issue guidance to clarify ability of entrepreneurs, researchers,
inventors & founders to quality for National Interest Waiver
green card
Temporary injunction affects only expanded DACA & DAPA
programs
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Uncertain in light of Executive Action
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Comprehensive law would likely include
◦ Legal status for “undocumented”
◦ Employee verification system
◦ Changes to legal immigration
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[email protected]
6100 Fairview Road, Suite 200
Charlotte, NC 28210
P 704.442.8000
www.garfinkelimmigration.com