After Graduation: Visas for Professionals and Entrepreneurs

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1 After Graduation: Visas for Professionals and Entrepreneurs Rochester Institute of Technology March 9, 2018

2 2 After Graduation: Visas for Professionals and Entrepreneurs Introduction to U.S. Immigration Step 1: While in School Step 2: After Graduation DAVID J. WILKS Step 3: Long-term Residence

3 3 WHO WE ARE Since 1986, Miller Mayer, LLP has served corporate and individual clients from Ithaca, New York. In 2016, we established a legal office in Shanghai, China, a testament to our expanding client base and reputation. Recognized for our knowledgeable and responsive counsel, Miller Mayer is highly regarded for immigration services to high-skilled workers and investors, and the American companies who employ them.

4 About Us The Miller Mayer Immigration Attorney Team 4 Miller Mayer attorneys have over 25 years of experience in guiding U.S. businesses, individual clients, and families through the immigration process. We help employees and employers in startup companies, hospitals, universities, and financial and tech industries in our region and across the United States. Simply put, we help our clients succeed.

5 The Team 12 Dedicated Immigration Attorneys and 30 Staff 5 HILARY FRASER PARTNER CAROLYN LEE PARTNER KRISTAL OZMUN PARTNER ROSANNE MAYER PARTNER ADAM SCHAYE PARTNER NICOLAI HINRICHSEN PARTNER STEPHEN YALE-LOEHR SANDRA BRUNO DAVID WILKS JANE ZHANG SUMMER YIN EMMIE SMITH OF COUNSEL ASSOCIATE ASSOCIATE ASSOCIATE ASSOCIATE ASSOCIATE

6 6 Overview of U.S. Immigration

People in the U.S. 7 Nonimmigrants Permanent Residents Citizens Employment limited. Duration of stay limited. Starting place for most students and graduates.

7 People in the U.S. 7 Nonimmigrants Permanent Residents Citizens Employment limited. Duration of stay limited. Starting place for most students and graduates. Green Card Holder Can work or live anywhere. Cannot vote in U.S. elections; can be deported. Can work or live anywhere. Can vote in U.S. elections. No fear of deportation. Not on Continuum: DACA, TPS, Undocumented

8 Questions to Keep in Mind 8 Can I work? Not every status lets you work. Doing something for free or as a volunteer could still be work. Who can I work for and what am I allowed to do? Many visas are employer specific. Some are job or even location specific. Some visas or green card options don t allow you to work for a company that you own and control. How can I be compensated? Some visas require minimum pay. Some visas or green card options won t be available if you are compensated via stock or an ownership draw. Does my status limit my family members? Not every visa allows your spouse to work. Some family members can join you in the U.S., others cannot.

9 9 Step 1: While in School

10 Common University Student Visas 10 A Diplomats M Vocational students B Visitors (business/pleasure) N Parents or children of special immigrants C Transit O Persons of extraordinary ability D Crewman P Athletes or entertainers E Treaty trader/investors/australian professionals Q International cultural exchange visitors F Academic students R Religious workers G International organization S Federal witnesses H Temporary workers T Trafficking of persons victims I Journalists/Media TN NAFTA professionals (Mexico and Canada) J Exchange visitors U Certain crime victims K Fiancés/fiancées of U.S. citizens V Certain spouses/children waiting for green cards L Intra-company transferees

11 Brief Facts About F-1 and J-1 11 Can I work? On campus employment. CPT after a year of study. OPT after graduation. Who can I work for and what am I allowed to do? F-1 F-1 STEM OPT J-1 On campus for the University. CPT/OPT for an employer related to your field of study. Employer-employee relationship required for CPT but not OPT. Yes for two additional years. Can work for two years for an employer related to your STEM field of study. Employer-employee relationship required. Employer must be enrolled in E-Verify. Limited to what is authorized by the DS You can do what is authorized by the DS How can I be compensated? Fairly flexible. Must be paid prevailing wage. Many J-1 programs have pay requirements. Can my spouse work? No No If J-2 is authorized by your program, your spouse can work after applying for an EAD.

12 Self-employment in OPT Can be self-employed only in OPT, not in STEM OPT. Must work full time. Need all regular business licenses. These vary by location of work see

13 13 Step 2: After Graduation and Nonimmigrant Visas

14 Typical Immigration Timeline 14 Student Employee Pathway International Employee Pathway Family or Asylee Pathway U.S. Graduated F-1/J-1 Students work permit (OPT) Employer-sponsored Work Visa (H-1B or other) Employer-sponsored Work Visa (H-1B or other) Green Card, LPR Green Card, LPR Green Card, LPR U.S. Citizenship (Naturalization) U.S. Citizenship (Naturalization) U.S. Citizenship (Naturalization)

Graduated F-1 STEM student to 36 months OPT.

15 Skip the Professional Visa 15 Student Employee Pathway Shorter for STEM OPT (No Employer Sponsored H-1B) Green Card, LPR U.S. Citizenship (Naturalization) STEM = Science, Technology, Engineering and Math. Graduated F-1 STEM student to 36 months OPT. For some, no need for employer-sponsored work visa, e.g., H-1B. May not be possible for individuals from mainland China or India.

16 Typical Work Visas for Graduates 16 A Diplomats L Intra-company transferees B Visitors (business/pleasure) M Vocational students C Transit N Parents or children of special immigrants D Crewman O Persons of extraordinary ability E F G H I J K Treaty trader/investors/australian professionals Academic students International organizations Temporary workers Journalists/Media Exchange visitors Fiancés/fiancées of U.S. citizens P Q R S T TN U V Athletes or entertainers International cultural exchange visitors Religious workers Federal witnesses Trafficking of persons victims NAFTA professionals (Mexico and Canada) Certain crime victims Certain spouses/children waiting for green cards

17 H-1B Professionals Employer sponsored for up to 6 years in a specialty occupation. Three Requirements: 1. Job must require a bachelor s degree or higher in specific field USCIS now imposing a more exacting standard. 2. Beneficiary must have at least the relevant Bachelor s degree or equivalent. 3. Employer must pay the required wage (watch out for level 1 wage issues).

18 Advantages of H-1B Duration: 6 year maximum. 1 year stay outside U.S. refreshes 6 years. Additional H extensions if green card started by end of 5 th year. 2. Time to work toward green card. 3. No advertising or test of the U.S. labor market. 4. No delay when you change employers. 5. Some spouse work authorization by regulations.

19 Disadvantages of H-1B Each employer must file a separate petition. 2. Self-employment limited (be careful of stock compensation). 3. Not flexible like F-1 OPT. 4. Paperwork, cost and delay. Fees: approx. $5,000 per filing, based on: $960 cap-exempt fee $1,710 to $2,460 cap-subject fee $1,225 expedite fee $3,500 approx. legal fee 5. RFE Trends (45% increase in 2017). 6. Primary disadvantage is inadequate supply H-1B lottery.

20 What is the H-1B Cap? 20 Non-university employers are subject to H-1B cap (annual quota) 65,000 per fiscal year. 6,800 for individuals from Chile and Singapore. 20,000 for U.S. master s degree or higher. Must have degree by April 1 (time of H- 1B filing). Accredited U.S. institutions, excluding for-profit schools. All advanced degrees included. Master s cases considered under both caps (approx. 60% success rate). Exempt Employers* Colleges/universities. University-affiliated nonprofits (i.e., university teaching hospitals). Non-profit research institutions (rare). *Limits on changing to cap-subject jobs. Exempt Individuals Prior cap H-1B holders. Employed at cap-exempt worksite. Concurrently employed at cap-exempt worksite. J-1 shortage area waivered doctors.

21 H-1B Quota, April Lottery & Cap Gap 21 Cap-subject H-1B filings exceed supply. All cap-h-1b employers file as early as possible (first week in April). Annual cap-h-1b quota filled in short time. Cap Gap: Extends work authorization and ability to stay until October 1 if EAD expires between April 1 and October 1. Extends ability to stay until October 1 if grace period ends between April 1 and October 1. Recent lottery success rate approx. 35% for bachelor s degree holders FY 07 - May 26, 2006 (8 weeks) FY 08 - Apr 3, 2007 (1 day) FY 09 - Apr 7, 2008 (1 week, lottery) FY 10 - Dec 21, 2009 (9 months) FY 11 - Jan 26, 2011 (10 months) FY 12 - Nov 22, 2011 (7.6 months) FY 13 - Jun 11, 2012 (2.4 months) FY 14 - Apr 5, 2013 (1 week, lottery) FY 15 - Apr 7, 2014 (1 week, lottery) FY 16 - Apr 7, 2015 (1 week, lottery) FY 17 - Apr 8, 2016 (1 week, lottery) FY 18 - Apr 7, 2017 (1 week, lottery)

22 H-1B Procedure 22 DOL File LCA Employer files with Department of Labor CIS File H-1B Employer files petition with Citizen and Immigration Services DOS Visa application Employee files for a visa stamp in passport during non-us travel

23 H-1B Questions 23 H-1B Can I work? Yes, as long as authorized by both I-94 and I year intervals, up to 6 years (longer if progress made toward permanent residence). Who can I work for and what am I allowed to do? How can I be compensated? Can work for the employer listed on your I-797. Can perform the duties in the H-1B petition. (Some ability to promote within same occupation). Must work at the location listed in the H-1B petition. Must have employer-employee relationship making self-employment challenging. (Independent board?) Can change jobs fairly easily through portability (remember capsubject/cap-exempt distinction). Must be paid prevailing wage. Can my spouse work? Not until progress made toward permanent residence.

24 Other Visa Options: L-1 and E-3 24 L-1: Multinational Transferee Can I work? As authorized by I-94 and I-797. Up to 5 years for Specialized Knowledge employees (3, 2). Up to 7 years for Managers and Executives (3, 2, 2). Who can I work for and what am I allowed to do? How can I be compensated? L-1B can work as a specialized knowledge employee for company on I-797. L-1A can work as a manager or executive for company on I-797. Must have previously worked (1 year within the last 3) for an affiliate abroad as manager, executive or specialized knowledge employee. Can be self-employed. Fairly flexible. E-3: Australian Professionals Yes as authorized by I-94 and visa. No limit on extensions (2 year intervals). AUSTRALIANS ONLY. Similar to H-1B. Must work for employer on LCA performing duties listed in initial submission to consulate. Must be paid prevailing wage. Can my spouse work? Yes Yes

25 Other Visa Options: TN and O-1 25 TN: NAFTA Professional Can I work? As authorized by I year intervals (no limit for most occupations). MEXICANS AND CANADIANS ONLY. Who can I work for and what am I allowed to do? How can I be compensated? Can work for the employer specified on your application. Employer must be in a designated occupation (and you must have the qualifications for that occupation). Self-employment prohibited. Flexible O-1: Extraordinary Ability Yes as authorized by I-94 and I-797. Initial term of 3 years with no specific limit on extensions. Must work in a field in which you have extraordinary ability for either an employer or via an agent (great option for academics). To be authorized for this visa, you must be able to show receipt of a nationally or internationally recognized prize, or three lesser achievements (e.g. prestigious memberships, major media coverage, judging the work of others, original contributions to the field, scholarly publications, high salary, critical role in a prestigious organization). Ownership of employer possible must be handled carefully. Flexible Can my spouse work? No No

26 Other Visa Options: E-1 and E-2 26 E-1: Treaty Trader E-2 Treaty Investor Can I work? As authorized by I-94 and visa stamp (for reentry). Must be from a treaty country. 2 year increments. Who can I work for and what am I allowed to do? How can I be compensated? Can start or buy a company engaged in substantial trade between U.S. and your home country. Can work for a company engaged in substantial trade between U.S. and your home country if majority owned by nationals of your home country (not U.S. citizens or LPRs), and you are coming to work as an executive, supervisor, or special skill employee. As authorized by I-94 and visa stamp (for reentry). Must be from a treaty country. 2 year increments. Can start or buy a company making a substantial investment in the United States. Can work for a company owned by nationals of your home country (not U.S. citizens or LPRs), where those nationals have made a substantial investment in the U.S. company, and you are coming to work as an executive, supervisor, or special skill employee. Flexible (but some consulates want to see high salaries). Flexible (but some consulates want to see high salaries). Can my spouse work? Yes Yes

27 Additional Visa Options 27 J: Study and Research (careful about 2-year foreign residency requirement) H-1B1: Carve out for Singapore and Chile H-3: Training Program I: Information Media Representatives (Press, Radio, Film, Print)

28 New Option: Entrepreneur Parole 28 The International Entrepreneur Rule (IER) allows DHS to grant up to 5 years of parole and work authorization (in 30 month increments) to foreign entrepreneurs working with new start-ups. High Standards to Qualify: An ownership stake of at least 10% and an active role in the startup s operations; An active role in the start-up; The start-up must have a significant public benefit (for example: evidence of revenue generation, letters from investors or government agencies attesting to the entrepreneur s ability, media coverage, etc.); The startup must have been formed in the U.S. within the past five years; and The startup must have received within the last five years at least $250,000 from Qualified U.S. Investors or $100,000 from government awards or grants, which cannot include a government contract for services. Qualified U.S. Investors must have a substantial track record of funding successful start-ups and cannot be or be owned by immediate relatives.

Entrepreneur Parole (continued) Filing Fee: $1200 + $85 biometrics fee. After approval, you need to obtain a boarding foil from a U.S. Consulate abroad.

29 Entrepreneur Parole (continued) Filing Fee: $ $85 biometrics fee. After approval, you need to obtain a boarding foil from a U.S. Consulate abroad. Spouses and Children can accompany by filing for advance parole (via form I-131) Once in the United States, spouses may apply for work authorization (via form I-765).

30 Entrepreneur Parole: 30 Troubled History/Future On July 11, 2017, six days before its effective date, USCIS announced that it was postponing the measure until at least March 14, 2018, while it considered whether to rescind the rule. On December 1, the U.S. District Court for the District of Columbia found that the Trump administration s delay was unlawful. On December 14, USCIS announced that it would begin accepting I-941 applications for Entrepreneur Parole. CAUTION: The Trump Administration is currently is working with OMB to publish proposed regulations which would rescind the IER.

31 Travel and Visa Issuance Issues 31 Travel ban and restrictions for individuals from Syria, North Korea, Iran, Chad, Libya, Yemen, Somalia and Venezuela. Visa issuance delays for individuals from any country administrative processing. Consult with international students office prior to any travel in OPT or STEM OPT must have job or job offer, current I-20, EAD. Recent State Department guidelines for F-1 residence abroad may make issuance of F-1 visa more difficult in OPT. Residence abroad not required for H-1B, L-1 and not applied as strictly for E, O visa applicants. Once H-1B petition has been filed, do not travel until after H-1B petition is approved and effective (i.e., at least October 1).

32 32 Step 3: Long-term Residence

33 Transitioning to Permanent Residence 33 Permanent Residence Paths: Family-Based: Must be related to a U.S. citizen or permanent resident. Your employer or stock ownership will not impact your petition. Diversity Lottery: Must come from a country that sends fewer immigrants (not China, India, Mexico, Canada). Your employer or stock ownership will not impact your petition. Employment-Based: Your employer sponsors you. Your position, credentials, and stock ownership may determine your eligibility or wait time.

34 Family-based Green Card Categories (FB) 34 Spouse, parents, children under 21 Sons and daughters aged 21+ Married sons and daughters Siblings Nationality = China, Mexico, Philippines, India US citizen sponsor aged 21+ Yes Yes Yes Yes No difference Approx. wait time None 6 years 12 years 13 years Longer LPR/CPR sponsor aged 21+ Yes spouse, child No parents Yes No No Approx. wait time 1.5 years 7 years N/A N/A Longer

35 Visa Bulletin (FB: 3/2018) 35

Diversity Lottery Program allows 50,000 randomly selected diversity visas (DVs) annually, must meet strict eligibility requirements, from countries with low immigration rates.

36 Diversity Lottery Program allows 50,000 randomly selected diversity visas (DVs) annually, must meet strict eligibility requirements, from countries with low immigration rates. Eligibility requirements: Receive a visa based on education or work. Must have a high school education; or Two years of work experience within the past five years. Current program: DV-2019 Instructions

37 Employment-based Green Card Categories (EB) 37 Priority Workers (EB-1) 40,000 visas per year Extraordinary ability (self-sponsor). Outstanding professors and researchers (tenure-track position). Business executives and managers (no labor certification required). Advanced Degree Holders (EB-2) 40,000 visas per year Professionals with advanced degrees or exceptional ability in sciences, arts and business (labor certification required). National Interest Waiver of labor certification requirement. Skilled & Unskilled Workers (EB-3) 40,000 visas per year Skilled workers in short supply. Professionals with bachelor s degree. Unskilled workers in short supply (all require labor certification). Special Immigrants (EB-4) 10,000 visas per year Religious workers; certain US govt. employees; Panama Canal employees; plus certain dependent juveniles. Investors (EB-5) 10,000 visas per year Must invest between $500,000 and $1 million. Must create at least 10 full-time jobs in 2 years.

38 Common EB Categories 38 EB-1 EB-2 EB-3 EB-5 Extraordinary ability no PERM Can Self-Petition Advanced degree with PERM Bachelor s degree with PERM Investors in a Regional Center s job-creating project Can Self-Petition Tenure-track professor Exceptional ability Skilled workers In self-managed business Permanent researcher with PERM with PERM no PERM Multinational transferees National Interest Waiver Unskilled workers no PERM no PERM with PERM Can own the Company Can Self-Petition No quota delay 0-7 years 1-11 years 2+ years (China only) 3-12 months processing time 3-24 months processing time 24+ months processing time 2-3 years processing time

39 Visa Bulletin (EB: 3/2018) 39

40 Employment-based with PERM 40 What: A certification from the Department of Labor that a particular position at a particular company is open for a foreign national because no qualified U.S. workers are available to fill the position. How: Employer completes 5 kinds of advertising/recruitment to show no qualified U.S. workers applied for the position. When: Date of PERM filing = initial green card application date, triggering start of quota waiting period, if any. Limits on self-employment or even company ownership also problematic if a family member owns the employer. Streamlined process for professors ( special handling ).

41 PERM-based Green Card Process 41 PERM (DOL) Adjustment of Status (USCIS) I-140 Immigrant Visa Petition (USCIS) Special Handling PERM for professors (DOL) Consular Process Overseas (DOS)

42 Fast Track: No PERM Required 42 EB-1 priority workers: 1. EB-1-A Extraordinary ability aliens EB-2 national interest workers: i. Self-sponsored i. Self-sponsor ii. Advanced degree or exceptional ability ii. Similar to O-1A NIV 2. EB-1-B Outstanding professors and iii. Doing work in the national interest researchers 3. EB-1-C Multinational executives and managers i. Similar to L-1A NIV

43 EB-5 Investors Self-sponsored. Must invest in U.S. companies that benefit U.S. economy and create or save at least 10 full-time U.S. worker jobs. $1 million normally required to invest; $500,000 in rural or poor areas. Receive conditional residence for two years; then file again to show job creation and receive permanent green card. Quota backlogs for Chinese nationals.

44 Time and Planning for Green Cards 44 Complex process (PERM, I-140, AOS) > 5 years. Quota delays affect Bachelor s degree level jobs (EB-3) and India and China Master s and Bachelor s degrees (EB-2). During quota delay wait period, an employer-sponsored temporary work visa is necessary. USCIS rule liberalizes work permissions for many foreign nationals, especially those affected by long quota delays in the employment-based green card categories.

Government Resources 45 Links to embassies and

Application procedures and consulate closings.

Visa Bulletin regarding priority dates. www.

45 Government Resources 45 Links to embassies and consulates worldwide. Application procedures and consulate closings. Warden messages and travel advisories. Public announcements. Derivative citizenship and renunciation. Visa Bulletin regarding priority dates. Statutes and regulations. Forms. Procedures and instructions. Contact information. Processing times.

46 The Internet: A Tool for You and USCIS 46 Google LinkedIn Facebook Online articles Make sure your web presence only has authorized work!

47 The Road Ahead Realistic assessment is important. Planning ahead is key. Get to know employers soon. Think of alternative and creative employment options.

215 E. State St, Ithaca NY 14850 Questions? 607.273.

48 215 E. State St, Ithaca NY Questions? Learn more:

Visas after Graduation

Miller Mayer LLP February 17, 2017 Visas after Graduation 12 Immigration Attorneys Decades of Combined Experience Leaders in Immigration 1 215 East State Street, Suite 200 P.O. Box 6435 Ithaca, New York