International Student Services – Immigration After Graduation

International Student Services – Immigration After Graduation

October 1, 2019 0 By Stanley Isaacs


SUE: Okay, hello everyone, can you hear me
back there? Thank you for coming today, my name is Sue Joseph and I’m one of the advisors
in International Student Services. We also have Jeff Cox here today, as you can see heading
up the stairs, and Lily Jensen in the back, and Sean Azabo will be here in a few minutes.
This is a really terrific program we have for you today, and we’re thrilled to have
two immigration attorneys from the law firm “Miller Mayer” in Ithaca, New York, and, I’ve
just learned, in Shanghai as well. Uh, first we have David Wilks, who is an associate in
the immigration group. He has made many very informative presentations at RIT over the
last few years, if you’ve attended any of them, you may recognize David, and he’s going
to start out with “Visas after Graduation”. And then, in our second hour of the program,
we’re going to have Stephen Yale-Loehr, who’s also an attorney of council in the immigration
group. He has worked in immigration law for over 30 years and is also a professor in the
Cornell School of Law. His presentation will be “Innovative Visa Options for International
Entrepreneurs and Investors”. We have a very interesting afternoon ahead of us in the next
few hours, and we’re going to save questions for the end. I also wanna thank our interpreters
today: we have Stephanie and Jenna. So I will get out of the way and let the program begin.
DAVID: So I guess as an extra treat, we’re going to tag team both presentations, right,
I don’t know if– as an extra benefit to you, it is an extra benefit to us, I think [laughs].
Uh, and it’s great to be back here at RIT, thanks for having us. I just, we would like
to see, how many people do we have from the countries in North America today? Alright,
very nice [laughs]. Okay, how about Central America? Okay, South America? Okay. How about
Europe? Middle East? Africa? How about, uh, Asia? Aaah! [laughs] Any Australians? Then
we’ll skip the E-3, no [laughs]. So, we are here to talk about Visas after graduation,
this is gonna be a two part program, as Sue mentioned, so there’s a little bit of overlap,
but the focus is different. This first presentation is going to be general, its gonna talk about
general immigration for everybody. The second half is going to be focused more on entrepreneurship,
investment, how can you own a business, if you can own a business, because, as we’re
going to discuss, that can be a little bit tenuous. Both are interesting, both have great
facts. Even if you’re not planning to start a business, the second program has a lot of
great information about other options, alternatives to the H-1B program. We’re going to talk about
that in this program as well, but there’s really good information to have throughout,
so, uh, let’s just get started. STEVE: Yeah, and we’ll stop after about 45
minutes for questions for those of you who have to leave after an hour, so you can ask
your questions about general visas, then we’ll start over, so to speak, at 2 o’clock, for
the entrepreneur one, and have a separate session of questions for that. Um, so, who
are we? We’re Miller Mayer LLP. We’ve been doing immigration law for over 25 years, we
have 13 immigration lawyers, and over 30 immigration paralegals. We do all kinds of immigration,
ranging from business, to entrepreneurs, to family. We have offices in both the United
States and in Shanghai. This is a particularly timely time to have this kind of presentation
because of the fact that immigration is so much in the news. The executive orders that
you probably have been reading about, uh, concern everyone, but really they should not
concern you, in this room, because you’re already in the United States. You are here
legally. Nothing that President Trump has said changes the current visa category structure.
So you’re fine. Your loved ones over seas may have problems getting here, but you’re
fine here, and so we’re going to talk with you about the various options that you have.
We have a lot of resources on the Miller Mayer website. You can sign up for our free newsletter,
uh, you can look at various memos that we have; we have a lot of new memos on our site
about these executive orders and how they’re impacting people, so feel free to go to our
website early and often. DAVID: So, let’s– let’s start by talking,
just generally, about who is in the United States, right? So, when we think about this,
we’re thinking about what types of people are allowed to be here in our country. So
we’re going to start with the non-immigrants. Who here is on an “F” or a “J” visa? Welcome
non-immigrants! This is the temporary statuses, so these are work statuses, student statuses,
visitor statuses, but what’s typical of a non-immigrant visa is that you are here for
a particular period of time, to do a particular function. You can’t work for just anybody,
you can’t do just any activity, you are limited in what you’re able to do. If you’re here
on an “F” and a “J”, you are limited in the fact that you are to be here, studying at
RIT, or working on OPT or AT, and that’s it, right? That’s what you’re allowed to do, no
more, no less. So, that’s not where you want to stay probably, right? If you wanna stay
in the United States, this is good for a while, some of these statuses, you can do perpetuity,
but, you know, after a while you want some more permanence, you want to be able to stay
in the country. So that brings us to permanent residents. Why is this green? Because these
are the Green Card holders. We’re very blatant, right, we want to be very clear, these are
the Green Card holders here. So these are the people that can live anywhere, and work
for anyone. They have a lot of the rights of U.S. citizens except they cannot vote,
they cannot serve on a jury, I know that’s very disappointing that you won’t be able
to serve on a jury, uh, and you can’t run for office. Okay? And, uh, very importantly,
you are subject to deportation if there is a, uh, criminal charge that gives rise to
that, so, if you want to commit crime in the U.S., you better become a U.S. citizen [laughs].
Now, I know this is recorded, so I WAS joking, just in case [laughs], some of you are paying
attention. Um, so, citizens, that’s where you’re very secure in the country, that’s
when you’re not worried about deportation, and, are– do any– you don’t have to raise
your hand, but, for you grad students who maybe are a bit older, uh, and might have
kids that weren’t born in this country, citizenship might be very interesting to you, because,
while, you know, everyone here is gonna stay straight-laced, you’re not gonna be involved
in any controlled substances, you’re not gonna get involved with the law, sometimes kids,
when they get to the teenage years, are at the wrong party, and sometimes they have situations
where they’re getting charged with drug offenses, or possession, or whatever it is, you don’t
want to get into the situation where your kids are dealing with ICE and dealing with
deportation orders, while you’re trying to keep your family here together in the United
States. So if you have non-citizen kids that are gonna be teenagers here in the country,
that’s when citizenship looks really attractive, okay? Also, if the current political climate
causes you to want to vote, to get involved, you have to be a citizen, and you can’t become
a citizen unless you were born here, unless you have U.S. parentage, and in some rare
instances, I think some provisions even for grandparents. Or you have to naturalize, and
the way that you naturalize is you first get a green card. If you’re married to a U.S.
citizen, you have it for three years. If you’re not married to a U.S. citizen, you have it
for five years. And then you apply for naturalization, you have to show good moral character, so
if you are planning to commit crime, probably not gonna show good moral character, uh, and
then you go to an interview, you get a little flag, you get a certificate, and it says “You
are a citizen.” The last group is the “Others”. So this is the people that aren’t on this
track, so to speak. These are the people that are in deferred action; the dreamers, the
kids that came over, uh, with their parents that are undocumented, that now have work
authorization because of President Obama’s program. Also in this spot are the undocumented.
Uh, this is a box that’s hard to get out of, so to the extent you can, make sure you are
staying consistent with your student visa, make sure you are only doing what your visa
says you can do. If you don’t, you are gonna end up in this grey box, and like I said before,
the grey box is harder to get out of. So, just make sure that you know that you are
allowed to do the activity that you are authorized to do, and that you are currently doing.
STEVE: So let’s talk about different ways that you can go transition from a temporary
status to a green card or permanent status. There are lots of different ways, these are
pretty traditional ways. One is, on the left, you are here and proper F-1 or J-1 status,
then you get a work permit through Optional Practical Training (OPT), then you have an
employer sponsor you for an H-1B or some other kind of work visa, then that employer sponsors
you for a green card, and then, as Dave mentioned, five years after that, you are, um, eligible
to apply to become a naturalized U.S. citizen. That’s not the only way. That takes a long
time and we’re going to talk about it. You could sorta start overseas. You could be overseas
and have an employer sponsor you for a temporary work visa in the United States, um, and then
a green card, then citizenship. Or, if there’s a fast track way to get a green card, you
could be overseas and then immediately come in on a green card. And the third way is not
through employment, but through family characteristics, or perhaps applying for political asylum,
and we’ll talk about those in a minute. In terms of the temporary visas, you’ll see they’re
all letters, and the reason that they have this alphabet soup is because of the way the
immigration statute or law is structured. And, what we’re going to be talking about
are those categories that allow people to work in the United States. There are lots
of different categories, over ten million people a year come to the United States in
one or more of these categories, but we’re going to focus on the ones that allow you
to work in the United States. And, Dave, the first category is?
DAVID: Well it’s– STEVE: The letter F!
DAVID: [laughs] The letter F, right? Not to discourage you. So, while we’re looking at
F-1, how many people have heard of Optional Practical Training, or OPT? Alright, Sue!
[laughs] So this is a way that you can get training in your profession, so it allows
you to work for a year after graduation. The nice things is that there is a new program–
well, it’s been around for a little bit, but they’ve cer– they’ve recently revised it,
that can get you up to three years of OPT. How many here know whether they’re in a STEM
occupation, so science, technology, engineering, math. Alright, you guys, you have the opportunity
to have up to three years of OPT. During that first year, the rules are very broad, so you’re
allowed to work for yourself, you’re allowed to volunteer, you can find, uh, anything that
works for you and your occupation. In the second two years it becomes more limited.
You need to make sure you have an employee-employer relationship, you need to make sure you’re
developing a training program that you’re coming back to RIT to discuss, you have to
make sure you have a company that is in the E-Verify program. So, the E-Verify program
is a program that, when you are boarded onto a new company, you’re going to fill out what’s
called an I-9. So that basically says, “I am who I say I am, and I am work authorized,”
and you have to show documents to prove both of those things. What E-Verify companies do
is they go onto an online website, they enter in your information, and they make sure everything
matches. Now this is a big headache for companies because of various requirements that are associated
with the E-Verify program, so not every company is willing to do that, so if you plan to take
advantage of that STEM OPT program, you have to make sure that your company, that you’re
going to be working for, is an E-Verified program, and that they’re willing to do all
of these training programs, and all– and pay you the required wages that are associated
with the STEM OPT. But, if you can do that, that means you have three years of work authorization
without needing the H-1B or the other statuses we’re gonna talk about in a second. For those
of you aren’t facing backlogs from your home countries, and we’re going to talk a little
bit more about those, there might be enough time for you to get a green card during those
three years without ever needing the H-1B, so just keep that in mind when you’re thinking
of your long term training programs. So yeah, and the other thing to keep in mind, one last
thing: with respect to OPT, or STEM OPT, if your undegrad degree was a STEM degree, then
in that case, you can still use the STEM OPT extension, even if your graduate degree is
not a STEM occupation. So, what that means, that if you have an engineering degree in
undergrad, then you went and got an MBA, MBA’s not gonna work for STEM, but your engineering
degree might, so you might be able to get the two extra years after your MBA, assuming
that you didn’t use it after you got your engineering degree, okay? So this is just
all stuff to keep in mind, there’s lots of different avenues, so we’re gonna talk about
a few more now. STEVE: So that’s the F-1 category, let’s move
to the H category, particularly the H-1B. This allows people to work in the United States
for up to six years. The requirements are that individuals have to have at least a bachelor’s
degree, and they have to be working in a position that requires that kind of bachelor’s degree
or equivalent. So there has to be a correlation between your degree and the job. You cannot
get an H-1B to flip hamburgers at McDonald’s™, because that does not require a bachelor’s
degree. You can also not get an H-1B to teach English at a High School if your degree is
in Physics, because you don’t have that correlation between the degree and the position. The employer
has to sponsor you, you cannot sponsor yourself, and the employer has to pay you the same wage
that they would pay a U.S. worker doing the same job. But, the employer does not have
to first try to find a U.S. worker, and then be unsuccessful before they can hire you.
Many new employers, or small employers, don’t realize that differentiation between the H-1B
temporary visa and the green card process. As we’ll talk about in the green card process,
there is this test of the labor market an employer has to do to make sure there are
no U.S. workers first. By contrast, in the H-1B, there could be a hundred equally well-qualified
U.S. citizens applying for the same job, and the employer can hire you. That’s perfectly
fine. So it’s good to tell employers that aren’t aware about this that it’s a very easy
way for you to get working. There are basically three steps to the H-1B procedure. First is:
the employer is going to file a document with the federal labor department to let them know
that they want to hire you and what the wage is. The labor department will then verify
that the wage is the appropriate wage in that geographic area and for that kind of position.
After they get that LCA, as its called, then the employer files a petition with the immigration
agency, and then once that is approved, if you’re overseas, you go to an embassy and
get an H-1B visa stamped in your passport. If you’re already in the United States, then
your status is changed from your prior visa status to the new H-1B status.
DAVID: So, some of the advantages to this is you get six years, right? That’s li– that’s
quite a bit of time. You can do a lot of career development in six years. And then, if you
exit the country for a full year, you can get a new six years all over again. Also,
if you get your permanent residence started by that fifth year, so that’s 365 days before
the expiration of your last H-1B, you can also get extensions beyond the six years.
So, it’s good to keep all of that in mind when you’re thinking– you see that you’re
on your second three years of H-1B, remember, “Oh, I need to get started on my permanent
residence so that I can keep extending this in perpetuity.” You get to keep working wh–
toward your green card. If your green card’s filed, you get to travel, you get some travel
benefits based on it. You don’t have to have any sort of labor test with respect to the
H-1B. Sometimes that’s a point of confusion. You can be equally qualified to other U.S.
citizens, foreign nationals. There’s no requirement that you be the only one available. And there’s
no delay when you change employers. What’s nice about that: as soon as– if you’re on
H-1B status, as soon as some other employer files an H-1B for you, under most circumstances,
you are immediately able to start working for that new employer that filed the new H-1B
for you. So there’s a lot of move– a lot of portability with respect to the H-1B. And
then, also, if you get started on your permanent residence in a timely way, there will, eventually,
be work authorization for your spouse. Now, uh, I know not all of you are married, but
this can sometimes become a big deal when you’re doing career planning, when you’re
doing immigration planning. Your spouse may have career goals of his own, or her own,
and you may end up being in a status where your spouse, if they’re not a U.S. citizen
or don’t have their own independent status, isn’t allowed to work. So, if you can find
a way to allow for your spouse to work, that can be a great benefit to your family in general.
STEVE: So the H-1B has a lot of advantages but it also has some disadvantages. Uh, unlike
the F-1, it’s very flexible, you can move from one employer to the other. On an H-1B,
if you go to a second employer, the second employer has to at least file a petition before
you can start working for them. The paperwork cost and delays are significant. You can see
the costs up there on the screen. It can cost an employer five thousand dollars or more
to go through the process. But the primary problem is the fact that we do not have enough
H-1B visas. Congress sets the limit of H-1B visas to about 65,000 per year, plus an additional
cap of 20,000, and Dave’s gonna explain what that cap is, and what it means for you if
you’re going through the H-1B lottery. DAVE: So, uh, how many of you have heard of
the H-1B cap? Okay, the rest of you will [laughs]. So, as Steve was mentioning, there’s only
a certain number of H-1Bs that are available each year. So, for those of you that have
bachelor’s degrees, there’s 65,000 available right off the bat. For those of you, if there’s
anybody that’s from Chile or Singapore, you have a golden ticket right here, there’s 6,800
H-1Bs available if those haven’t been exhausted. The last one is 20,000 for those of you who
have U.S. masters degrees. How many of you are in a graduate program here at RIT? All
of you! You get this extra box, right? So what happens is that all of these visas come
alive at the start of the fiscal year, which happens to be October 1. USCIS, which is the
immigration service, allows everybody to file a petition six months in advance. So, you
do the math, everybody files on April 1, okay? So what that means is that everybody is scrambling
through March to make sure that their petition gets there during the first five business
days of April 1, because for the last few years, as Steve’s gonna talk about in a second,
they’ve been oversubscribed. So, what happens is that you first get counted against your
masters cap, and assuming, as usual, it’s oversubscribed. If you win, great, you’re
not approved, you just get to go the adjudicator. So, you still have to prove that you’re elligible
for H-1B status. But at least you get adjudicated. If you aren’t selected in that lottery, you
get put into the 65,000 lottery. So you’re basically getting two chances. First to the
20,000 cap, and second at the 65,000 cap. Also, if you already have a bachelor’s degree,
and if you already have an employer lined up, you might as well take a shot at the 65,000
right now while you’re in school, because that gives you one extra shot at getting in
the H-1B lottery. And, as Steve’s gonna show you, that’s a very good thing.
STEVE: So, as you can see here, how fast we use up visa numbers depends on how the economy
is doing. Back in the recession, 2008-2009, these numbers were not used up immediately,
it took almost a year to have the numbers used up. Over the last several years, the
demand has exceeded the supply, and therefore we had to have a lottery to decide which petitions
are going to be adjudicated. Last year, in April, 236,000 people filed petitions. You
do the odds, that means its a 1 out of 3 chance for people in the normal 65,000 lottery. For
those of you in the masters lottery last year, because you had two chances of winning, your
odds were roughly around 57%. So they’re slightly better. And this is where you wanna use different
visa categories to help you out, because if you have F-1 Optional Practical Training,
or that STEM extension, you effectively have three years where you can apply for the H-1B.
So you may not win the first year, but maybe you’ll win the second or third year. So, this
is where careful planning can help you with your options.
DAVE: So again, this masters cap is a really great opportunity for you, so if you have
the opportunity to take advantage of it, you really should, and I think, based on the hands,
most of you fall into that category. Sounds like a lot of you fall into the category where,
first you’re going to get the STEM extension, and then second, you can get the masters cap.
So, the chances of you getting an H-1B are much higher than the bachelors level liberal
arts degree. STEVE: One other thing to think about, if
you have a master’s degree, you don’t have to accept a job that requires a master’s degree
and still be in the master’s cap. So, if you have a master’s degree from RIT, but maybe
you’ve got a bachelor’s degree also, and the employer only requires a bachelor’s degree
for that particular position, you’re still eligible for the master’s degree cap. So that’s
another benefit there, so take advantage of that.
DAVE: So thank Sue and Lily and Jeff for the opportunity to get a master’s degree, right?
STEVE: Um, now not everyone is subject to the cap, and this can be a way that can help
you out, if, for some reason, you’re unlucky in the lottery. So, for example, if you were
to work for a university, you are employed as a post-op or at a research lab here at
RIT, those H-1B petitions are not subject to the cap.They can be filed any time of the
year, they don’t have to worry about it. So that’s an opportunity for you if you’re looking
for that kind of job. Uh, second is if you are working for a non-profit that is affiliated
with a university. So maybe you’re working for a hospital, and it’s a teaching hospital
affiliated with RIT or University of Rochester, those kinds of petitions are not subject to
the cap.Third is if you are at a company that’s physically located on the campus. So, for
RIT, I assume you have some kind of an accelerator program here, we’re talking more about it
in the second hour, but if you’re physically on campus working for a company, that is not
subject to the cap. Similar to the people who had a cap before, don’t have to worry
about it. It’s like, you have to go through that cap, horrible experience once, but you
can go and do other H-1Bs and don’t have to worry about the cap. And also you can avoid
the cap, even if you’re working for your own company, if you start working for a university,
say part time, 10 hours a week, and then work for another company 30 hours a week. That
second petition by the private employer, because it’s sort of tagging along, the university
petition is not subject to the cap. So there are a variety of creative ways to get around
the H-1B cap. DAVE: So, let’s say you’re approved. You are
allowed to work for a particular employer for a period that your petition says you are
allowed to work for them. That means you can’t moonlight somewhere else, you can’t go do
stuff, other sort of work, you have to– unless you’re authorized by somebody that’s allowing
you to do that, you have to work for your employer. So let’s say somebody comes along
and gives you a great, new job opportunity. Well, they need to file an H-1B for you. So,
when that happens, assuming you have a cap subject, we’ve gone through the lottery already,
you can work for any other employer that’s willing to file an H-1B for you. And you can
do it the day that they file the petition, and there may be reasons why you want them
to wait, one of those reasons may be that it is a small company, and you’re not sure
if it’s gonna be approved, so you don’t wanna give notice to your old employer until they
have that H-1B in hand, but you might be very confident, it might be that you’re going to
work as an engineer for IBM and you have no doubt that they’re going to get that H-1B
approved, you can start the day that they file. So, another thing to remember though,
is if you are at a university, right, so you took advantage of that cap exemption, and
you’re moving to a cap subject company, you can’t do that unless you have previously gotten
a cap subject H-1B. So, if you’re here at RIT and Kodak decides to hire you, Kodak has
to get an H-1B through the lottery before you’re able to work for Kodak. Unless RIT
keeps you on part time through what’s called “concurrent H-1B” which means that you can
continue to work for anybody on an H-1B, so long as they file an H-1B, so long as you
have a cap exempt employer, who also has an H-1B for you at the same time. So that’s a
little bit more complex, but that said, just remember that if you ever start working for
a university you have to be very careful in your planning of how you are going to move
to your next employer. STEVE: Another factor to think about is the
timing between when your Optional Practical Training expires and when the H-1B starts.
The H-1B starts at the start of the federal fiscal year, which is October 1. Your Optional
Practical Training will start usually close to when you graduate. So there may be a gap,
then, between when your Optional Practical Training ends and when you’re going to start
working for your employer. If you navigate the timing correctly, you can get what’s known
as “cap gap extension” so you’ve gone through the H-1B, you’ve got an H-1B employer all
lined up, your Optional Practical Training runs out some time that Summer, the immigration
agency will say “fine, during that gap, until you get the H-1B, we’ll allow you to remain
in the United States.” So this timeline sort of helps you to navigate that timing consideration
there. But it is, sometimes, tricky. DAVE: So, you do wanna think about this timing,
right? So OPT is generally for a year, and you wanna take advantage of cap gap. All cap
gap lets you do is extend the rights you had at the time of filing until October 1. So,
if on April 3, when your petition was submitted, you were in your grace period because your
OPT had ended, you’re allowed to stay like you would in the grace period, but you’re
also not allowed to work, just like you were in the grace period. If on the other hand
your OPT is still valid, maybe it’s valid until May 1, that extends your right to work
and that extends your right to stay. So you wanna think about then when spending your
OPT. If possible, you want your OPT to expire sometime between mid-April and October 1 so
that you can take advantage of that full cap gap. That’s gonna give you more opportunities
to file for an H-1B. So think about this for a second: if you, for example, your OPT expires
in January, well that’s gonna give you one shot at the H-1B, right? Your first April
is going to be the only April that you have to file for an H-1B. If on the other hand
your OPT starts in mid-April, well you can file during the first full year of OPT and
then also the second year, because that OPT is going to be extended to October 1. So you
wanna think about that when you’re timing everything. So, here we have a timeline of
possible OPT hiring, and, you know, you want to make sure that when you’re planning all
of this, you want to keep all of that in line so that you don’t end up in a situation where
you’re not able to get into the H-1B because you haven’t had enough opportunities to file
for the H-1B. STEVE: Now, the H-1B’s not the only kind of
work visa. There’s lots of other categories, and we want to review them, too, so that,
perhaps, you take advantage of them. Most of them have more flexibility, they don’t
have a numerical limit, for example. But most of them also have special requirements or
are only available to people from special countries, so they’re not going to apply to
everyone. So the first one, Dave, tell us about the L-1 visas.
DAVE: So the L-1 is for multinational transfers. For example, if you get a job for Kodak in
the UK and they decide that after a year, they want to transfer you to the US, the L-1
is how they’re gonna do it. So, this visa’s available for people that are managers, executives,
or specialized knowledge employees of multinational companies, which means that they have an office
the US and they have an office abroad, and there’s an equity relationship via branch,
parent, affiliate, subsidiary, or joint venture. There has to be an affiliation through equity
between the two branches, and then they can transfer you, as a manager, executive, or
specialized knowledge employee, to come work in the US as a manager, executive, or specialized
knowledge employee. The nice thing is that, if you’re a manager on both ends, or an executive
on both ends, there’s a fast track to the green card that we’re gonna talk about a little
later.The other visa to keep in mind– I know I asked if there’s any Australians, did any
more Australians come in? Okay, well you can be jealous of the Australians because they
have their own special category, which is very similar to the H-1B. It’s because they
helped us out in the Iraq War. That said, if you have any Australian friends, and you’re
feeling really generous, you can let them know about the E-3.
STEVE: Or marry an Australian. DAVE: That’s wh– there you go! [laughs]
STEVE: Do we have any Mexicans or Canadians in the audience? We have one, okay. We have
a special visa for Canada and Mexico. It’s called TN, and it’s similar to the H-1B. It’s
for people with particular occupations, and they’re listed on that, but we won’t spend
any more time on it. You can talk to us later if you want. So, Dave, tell us about the E-1
and E-2 visas. DAVE: So this is for investors. First are
the Treaty Traders, which involves having a company that has the nationality of a treaty
country. So, what does that mean? It’s like I’m talking kinda circular, right? A treaty
country is one that has a treaty with the US that essentially allows for these two immigration
statuses, E-1 or E-2. Sometimes there’s actually quirks to this status because of the particular
treaty with the United States. So, for example, Great Britain’s treaty with the US that authorizes
the E-2 has certain residency requirements that are not found in the other E-1s and E-2s.
So, all that is to say is that if you’re interested in doing this visa status, first check to
make sure that you are from a visa country, and the way that you do that, is you search
“treaty country” and then “department of state”, and you can find the whole list that’s kept
up to date. And so, what it does, if you’re an E-1, you are essentially either an owner
or a part of a company that is from a treaty country, which means that the majority ownership
of that company is from one of those treaty countries, you yourself are from the same
treaty country. So let’s say that the ownership is from Canada, but you’re from Israel. Yes,
both are treaty countries, yes both allow E-1s, but that’s not gonna work. The two nationalities
have to match. And then the trade has to be principally between that same treaty country
and the United States. So lets say this time you’re both from Canada, the company, you,
from Canada, but the trade is between US and Israel. Again, yes Israel is a treaty country,
but we need it to be between the same country. So the trade has to come from Canada. E-2
works very similarly, is you have to have that same nationality structure, but then
you have to create an investment in the United States. So you, or the owner of the company,
has to invest substantially in the US. The lowest I’ve seen approved is 50,000 dollars.
The good thing to know is that these two categories are very favorably viewed by department of
states, so they want to approve these. Uh, and that’s because they want the investment
in the United States. So, this is a great opportunity if you yourself are going to be
involved in international trade, or you yourself are going to be invested, or you’re the employee
of somebody that is. If you’re a manager, executive, or special skills employee of somebody
that qualifies for this, you can use this category, too, so long as you match the nationality.
Another great thing about this is that there are continued extensions in perpetuity, and
your spouse could also work. STEVE: So, there are other categories as well.
So, for example, if you are unlucky in the H-1B lottery, you may be able to go back to
school and get a more advanced degree and qualify for another round of Optional Practical
Training. The J-exchance visitor category has some work options available, too. And
there is a program called the H-3 program. So, if you’re unlucky in the H-1B lottery,
do not give up hope. Hire a good immigration lawyer and see what other options there are
available. DAVE: Uh, we talked briefly about this. Again,
you wanna make sure that your spouse is able to work. Note that there are some categories
that will allow it; some won’t. And also note that you can also benefit from your spouse’s
visa status as well. STEVE: So let’s turn now to trying to get
a green card, or permanent residence status, as it’s normally called. There are three basic
ways to do that. One is through family characteristics, one is through employment characteristics,
and one is the so called “Diversity Lottery.” We’ll talk about the Diversity Lottery, just
to get it out of the way. 50,000 green cards per year, issued by the state department.
Basically they allow except people from countries that already send a lot of immigrants to the
United States an opportunity to apply, usually in October of each year. So, as long as you’re
not from a country like China, India, Mexico, Phillipines, etc, you can apply for this.
The odds of winning are, y’know, however many out of 50,000. So they’re pretty good. Better
than winning the New York State lottery. So, as you consider your various green card options,
if you’re eligible to apply for the Diversity Lottery, do that as well, too. Family characteristics.
Um, you know, that is a way that you can get a green card. The best way, if you have a
family member, is if you are married to a US citizen. That citizen’s spouse can sponsor
you. There’s no numerical limit, there’s no backlog. So, I encourage all of you to get
married [laughs]. Now, you should marry for love, not for a green card, because they do
check for that. They give you a conditional green card for two years, then they check
in after two years to make sure you’re still married. So, do marry for love, but if you
happen to marry a US citizen, that is probably the fastest way to get a green card.
DAVE: There’s no crime against marrying only US citizens, you know. [laughs]
STEVE: Uh, there are other categories. For example, you know, I’ve got a spouse who’s
a green card holder, I’ve got a parent who’s a green card holder, I have a sister, a brother
as a US citizen. The problem with these categories is that, other than marrying a US citizen
spouse, there are backlogs. By overall, and per country. Worst backlog is if I am in the
Philippines, and I have a brother or sister in the United States who is a US citizen,
that US citizen brother or sister can sponsor me for a green card, but the backlog in that
category right now is 24 years. DAVE: How many people are over 24? [laughs]
STEVE: So, as a practical matter, unless you’re married to a US citizen spouse, the family
way to get a green card is probably not optimal. And this shows here on the slide some of the
backlogs for these various categories. And you can go to something called the “Visa Bulletin,”
which is published by the state department each month, and it tells you exactly how bad
the backlogs are for each particular category. We already talked about the diversity green
card lottery. There’s a link there to the program instructions if you wanna find out
when to apply or whether you qualify. Let’s start talking, primarily, about the employment
way to get a green card. Dave? DAVE: So, uh, employment based, right? So,
how many of you have heard of EB-1, EB-2, EB-3? Okay, a couple of you, so that’s employment
based preference one, employment based preference three, employment based preference three.
The primary way that most people get a green card is through labor certification process,
which, just to talk about briefly, involves a test of the labor market. So what that means
is that your employer’s going to do five times the recruitment that are governed by the Department
of Labor, and they’re going to put your salary up on the wall, and they’re going to put your
position out there, with your job title, to make sure that there is nobody that is eligible
for your position. If you’re an academic, then they might not do a prospective recruitment.
They might use old recruitment, but they can use new recruitment, and they’d say that you
were the best that’s available. That’s a special carve-out for academics. But for the rest
of us? We have to show that we are the last person standing; we are the only person eligible
for this position, other than other foreign nationals. So there’s a whole process on how
to do that, but simply what you do is go to the Department of Labor, say “look, we couldn’t
find anybody that was eligible” and they say, “okay, we certify” (that’s where the certification
part comes from) “we certify that there was no one eligible for this position, we certify
your test of the labor market,” you take it to USCIS through this I-140 process and you
say, “USCIS, I couldn’t find anybody, but I do have this great employee here. She is
absolutely qualified, please give her a green card.” And so you– if you’re eligible through
the priority dates that we’re going to talk about in a second, you would then, finally,
get a green card. It could be a one to two year process. Much longer, though, if you’re
subject to backlog. STEVE: These are the five categories, we’ll
talk more about them in depth in a minute. So basically we have limits in each of these
categories: 40,000 for the top category, et cetera. There’re not a lot of actual green
cards that are handed out through employment characteristics. We give about 1,000,000 green
cards out each year, and 140,000 of those go to people based on employment characteristics.
That’s not 140,000 workers, that includes their spouses and children. So, we’re gonna
talk about some of these categories, and you’ll see, some of them are in green and some of
them are in white. So, why did we do that, Dave?
DAVE: Well, we did that because we wanted to show what requires the labor certification
and what doesn’t require the labor certification. So, if you listened to what I was just talking
about, the labor certification, it’s been arduous and first of all your salary’s up
on the wall, your position’s getting advertised, sometimes we have heard of people saying “oh,
are they replacing you? because your job is on the market.” So it can be a difficult thing
to go through as an employee. So, in some of these categories, you can avoid the labor
certification altogether, and that’s those that are up here in green. It’s also– EB-5
up in the corner, there’s no labor certification for that. These categories here, the reason
why we exempt you from the labor certification is because we think you are so great, that
we think that you’re going to help this country so much, that we don’t think that we need
to test for the labor market. We know you’re going to help create jobs, we know you’re
going to help push the economy. So we’re not worried about you harming the economy by taking
the job of a US worker. And so that’s what these are about. Extraordinary ability, for
the best of the best, outstanding researcher for the ten year track, or research person,
and then multinational transferees, that’s like the L-1 I was talking about. These are
the managers and the executives coming over. And then National Interest Waiver, these are
the people that are going to be working in the national interest.
STEVE: So, there are backlogs on the employment-based green-card process, so as you think about
these various categories, you also wanna think about, “what’s the backlog for me?” For example,
the employment based first category is the one that’s going across the top, and you see
a bunch of ‘C’s. ‘C’ means current, meaning there’s no backlog. Once you get into the
second category, you see that, for China, the backlog right now is November of 2012,
and the backlog for India is April of 2008. That is a nine year backlog to get a green
card if you’re from India in that category. And then in the third employment based category,
if you happen to be from India, the backlog is from all the way back in March of 2005,
a twelve year backlog. So, even if you qualify for a green card because you’re doing very
well, the backlog may make it longer or harder to get a green card. Let’s talk about some
of the ways you may be able to fast track the ability to get a green card.
DAVE: So these are the green categories we talked about before. So extraordinary ability,
you know, if you are a– an exceptional academic, got a– got some great publications, you draw
a high salary, or if you’re a great musician, you’re a great artist. If some of you are
secret playwrights, and have sold your play that’s gonna be produced on Broadway, uh,
that’s– congratulations, uh no [laughs]. That’s the EB-1-A, that’s what’s available
to you. Outstanding researcher is kinda similar, especially if you’re an academic, you wanna
show that you have a certain number of– that you’ve successfully published great journals,
that your research is used by the field, maybe you’ve put out some patents that used by the
field. These are the types of things that you’ll be looking for there. So you wanna
build up a résumé. And you know its not necessarily something you do 10 years after
you graduate. There’s certain people that can do this a couple years after graduation,
particularly if they’ve done a post-doc and have developed a very significant research
record. Again, we talked about the managers. If we think these managers are gonna help
build business here in the US, so if they’re a manager abroad and they’re coming to be
a manager in the US, again– or executive, in the US, again we are going to allow these
people to fast track, come straight in, top preference. National interest waiver. These
can be self sponsored, which, also, by the way, the extraordinary ability can, as well.
Self sponsored, uh, so that’s great. You don’t have to have an employer to do this. You need
to have an advanced degree, so all of you, when you graduate, are gonna have an advanced
degree, or have exceptional ability, which is a term of art, there’s a certain breakdown
of what that is, but it’s essentially that you’re very good at what you do. And you’re
doing work that’s in the national interest. The standard for this, by the way, just got
lowered, so that’s a great opportunity. The one thing to keep in mind: this is EB-2, not
EB-1, so you may be subject to a backlog. STEVE: Go back here, for India, even if you’re
in the national interest, and you’re from India, uh, EB-2, that’s a nine year backlog,
now. Another way to get a fast track is the fifth employment based category, that’s EB-5,
for people who invest in the United States. This does not go through the labor certification
progress because it’s an investment way to get a green card. You can invest in one of
two ways: you can invest in your own company or you can invest through a so-called “regional
center.” Either way the investment has to create at least 10 jobs for US workers. It
requires a million dollars, or 500,000 dollars, depending on exactly where the investment
is put. It allows you to get a green card for two years, because at the end of the two
years, they wanna make sure that the jobs you said you were going to create actually
did get created. It’s a very popular way from countries like China that have long backlogs
to get into the United States more quickly. It’s gotten so popular for people from China
that it now has a backlog for China, but for other countries it’s not a backlog. So it’s
certainly something to consider. DAVE: So you wanna think about all of these
pieces together. The timing is critical. The labor certification, so, PERM by the way is
the system that labor certification uses, it doesn’t mean that you have to get your
hair permed or anything like that [scattered applause. ugh], that’s just the system that
they use. They call it PERM. So the labor certification, the I-140 and the AOS is “Adjustment
of Status”, that’s the last piece where you get the actual green card. That can take more
than five years. In some instances it can take nine to 10 years. So you wanna be thinkin
bout ur long term plizzity plan, yo. The quota may affect what type of– what’s available
to you, and that could be based on your degree or your background. The nice thing, though,
is that there usually are options, particularly if you’re an H-1B, that can help you continue
to work and help you continue to stay while you are waiting for that green card to come
up. And also remember that there are brand new regulations that came out on January 17
that liberalize your ability to move. So even if somebody started a permanent residence,
even if you’re an H-1B and you’re only authorized to work for one employer or your current residence
petition is for a particular employer, there are new regulations that will allow you to
have more flexibility and continue your career with different companies.
STEVE: So, to wrap up before we take some questions, there’s a lot of information on
government websites. Our Miller Mayer LLC website also has a lot of information. Sometimes
hard to figure out, because immigration law is so complex, how all these different pieces
operate together. So that’s why it’s important to have a good immigration lawyer to consult
with you and work with you on both your short and long term strategies. One last thing is..
be careful of what you put on the internet. You are here right now, for example, on F-1
status. The immigration agency interprets that as being here to be a student, and not
to work. So, if you advertise on your LinkedIn page or Facebook about how you are working
out of your dorm room, developing this great new software app or whatever, the immigration
agency may say, “well that’s great but you have violated your student status.” So be
careful and make sure that you comply with all of your visa terms, and you’re not violating
status in any way. So as we pointed out, you know, get a realistic assessment of your particular
situation early and then see how it changes over time. It may be that you don’t qualify
for a particular visa category now, but by knowing the requirements and planning and
talking to professors or getting published over the next 12 months, you can qualify for
a category that will help you in your long term options. Get to know employers soon.
Maybe try to get Curricular Practical Training or Pre-Completion Optional Practical Training
so the employers know you, so when it comes time to think about an H-1B, its not just
another job applicant. They’ve already seen you on the job and they already know how valuable
you are, and are much more likely, then, to say, “yes I’m willing to go through this stupid
H-1B lottery there.” Think of alternative and creative employment options because immigration
law is so complex, your first option may not work out. Usually with creativity, there’s
some other option that can work for you. So, with that, you can sign up for our newsletter,
you can get information just looking at our website if you’re thinking about an H-1B for
this particular April, make sure that you do a consultation with us right away, since
we need some time to file that application the first week of April. With that, we’ve
got about five minutes so why don’t we open it up to questions.