from employment to residency: what are my employment based  immigration options

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INTRODUCTION. Mary Ann Romero, presenting attorneyKretz

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from employment to residency: what are my employment based immigration options

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1. University of New Mexico April 1, 2011

3. OVERVIEW USCIS (U.S. Citizenship & Immigration Services) ICE (Immigration & Customs Enforcement) CBP: Customs and Border Protection Department of Labor U.S. Department of State

6. H1-B VISAS The H1B visa is a non-immigrant category established by USCIS to employ international workers with specialized training. The H-1B work visa is generally set aside for foreign workers in "specialty occupations" and fashion models of "distinguished merit and ability.“ The H1-B visa is issued in 3 year increments with the option to renew for an additional 3 years for a total of 6 years. The H1-B visa is a dual intent visa that allows you to pursue legal permanent residence. The H1B visa is subject to numerical limitations. START FILING APRIL 1ST IF YOUR EMPLOYER IS SUBJECT TO NUMERICAL LIMITATIONS.

7. H-1B REQUIREMENTSfor Employee A job offered to an Employee requiring at least a Bachelors Degree and the employee must have the corresponding degree and/or experience for the position. Off-site Assignment of H1B Beneficiaries must adhere to prevailing wage requirements Release of technical data and licensing requirements as per Export Administration Regulations & International Traffic in Arms Regulations

8. H-1B REQUIREMENTSfor Employer Employer must: File Labor Condition Application (LCA) in accordance with the Department of Labor; Pay 100% of prevailing wage established by the Department of Labor for specialty occupation; Demonstrate Ability to Pay wage; Pay prevailing wage within 30 days of entry or 60 days of change of status; Provide reasonable costs of transportation home in case of termination;

9. H-1B FILING FEES Standard H1-B filing fee I-129 petition.: $325 ACWIA (Training) Fee: $1,500 or $750 Fraud Detection Fee: $500 Public Law 111-230 Fee: $2000 (for employers who employ 50 or more employees in the US with more than 50% of the US employees in H1B status) Premium Processing Fee: $1225 Dependant’s of Primary H1-B applicant: $290 Time Frame depends on when the application is filed. Visit for exact processing times.

10. H-1B VISAS – HOT TIPS Visa availability: Finding a job: What if I get fired or laid off? Can I change my employer? Exempt (cap) vs. Nonexempt (non-cap)

11. TN VISAS NAFTA creates special economic and trade relationships for the United States, specifically Canada and Mexico. The nonimmigrant TN visa allows citizens of Canada and Mexico, as NAFTA professionals to work in the U.S. For a list of NAFTA professions:  

12. TN VISA - REQUIREMENTS Must be a citizen of Mexico or Canada Must have no intent to immigrate Must have at least a Bachelor’s degree or licensure in home country to perform professional work Profession must be on the NAFTA list Issued for 3 years and renewable

13. TN VISA – FILING FEES Filing Fees I-129: $325 Premium Processing: $1225 Dependant’s of Primary H1-B applicant: $290 Time Frame : Visit for exact processing times.

14. O VISA CATEGORIES O-1 visa for Beneficiary’s of extraordinary ability, in particular, artists and athletes O-2 visa for person accompanying or assisting an O-1 artist or athlete O-3 Accompanying family members (spouse/unmarried children under 21 years old) NO EMPLOYMENT AUTHORIZATION

15. O VISAS The O-1 visa is a non-immigrant employment-based visa issued to foreign nationals who have extraordinary ability in the sciences, arts, education, business or athletics. This visa is a dual intent visa that will allow you to pursue legal permanent residence.

17. Beneficiary must provide evidence in at least 3 of the following categories: Beneficiary must provide proof or receipt of a nationally or internationally recognized award, such as the Nobel Prize; Membership in an organization that requires outstanding achievement; Published materials in professional or major trade publications; Judgment of the work of others; Original scientific or scholarly work of major significance in his/her filed; Evidence of authorship of scholarly work; Evidence that he/she ahs been employed at organization with distinguished reputations; Has commanded or does command a high salary in relation to others in the field.


19. J VISAS The process by which international students are hired and monitored as research and teaching assistants. Some J1 visa holders become subject to the 2 year foreign residency requirement based on either government funding or country skills list. If subject to 2 year foreign residence requirement, may still obtain O visa.

20. J VISA WAIVERS Waivers of 2 year requirement available based on the following: Possible Persecution Exceptional Hardship to USC or LPR spouse, parent, and/or child No objection waiver Request by U.S. Federal Executive Agency International Medical Graduate

21. IMMIGRANT VISA CATEGORIES & DEFINITIONS EB-1 Aliens of extraordinary ability Outstanding Professors and Researchers EB-2 National Interest Waivers Labor Certification for positions requiring a Masters degree or higher EB-3 Labor Certifications for positions requiring a Bachelor’s degree or at least 2 years of experience Special Handling Labor Certification (University Professors) Schedule A Labor Certification (Group I & Group II)

22. EB-1

23. EB-1 Aliens of Extraordinary AbilityREQUIREMENTS Aliens of extraordinary ability must meet at least 3 of the following: Receipt of lesser nationally or internationally recognized prizes or awards; Membership in association in the field which classification is sought; Published material about the person in professional or major trade publication or other major media; Participation as a judge of the work of others; Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance;

24. EB-1 Aliens of Extraordinary AbilityREQUIREMENTS cont’d Authorship of scholarly articles in the field; Evidence that the Beneficiary’s work has been displayed in exhibitions or showcases; Performance in a leading or critical role in distinguished organizations; High salary or remuneration in relation to others in the field; Evidence of commercial success.

25. EB – 1OUTSTANDING PROFESSORS AND RESEARCHERS EMPLOYEE Eligibility Beneficiary is internationally recognized as outstanding in specific academic area: Must have 3 years experience in teaching or research in the specific academic area (i.e. experience in teaching or research while working on advanced degree wherein the degree is acquired will count if the Beneficiary was fully responsibility for the class taught or if the research has been recognized as outstanding in the academic field).

26. EMPLOYER Eligibility Must offer a position that is tenure or tenure track; OR Comparable position at a university of institute of higher education to conduct research; OR Comparable position to conduct research with private employer if it employs at least 3 persons full-time in research activities and the department, division or institution has achievements in an academic field;

27. EB-2

28. EB-2 Aliens of Exceptional Ability

29. EB-2 Aliens of Extraordinary Ability

30. EB-2 Aliens of Extraordinary Ability National Interest Waiver requirements, must meet ANY 3 of the following criteria: Degree relating to area of exceptional ability; Letter from current or former employer showing at least 10 years experience; License to practice profession; Person has commanded a salary or remuneration demonstrating exceptional ability; Membership in professional association; Recognition for achievements and significant contributions.

31. EB-3 Labor Certification

32. EB-3 Labor Certification Requirements: Employer dependant Permanent job offer Prevailing wage must be paid as designated by NMDOL Employer must have the ability to pay

33. Special Handling Labor Certification College/university teacher/professors ONLY Employer must document competitive selection process within 18 months of alien’s formal selection Show only that the Beneficiary is “more qualified”

35. EB Priority DatesApril 2011

36. Schedule A Labor Certification Foreign nationals of exceptional ability in the areas of science, arts and university teachers, specifically where there is no shortage in the job market. Group I: Nurses and Physical Therapists Group II: Aliens of exceptional ability in the sciences and in the arts

37. Other particular populations

38. Legal Permanent Residence What processes lead to permanent residence? Employer Petitioners Family Petitioners (i.e. marriage, parents, siblings, children) Adjustment of Status v. Visa Processing Naturalization

39. General Visa Tips Final Thoughts Common mistakes / Generalizations Importance of consulting with an attorney regarding the specifics of your case.

40. Mary Ann Romero Attorney at Law

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