Overview of U.S. Working Visas Babson College November 2, 2009 John J. Gallini

1. Overview of U.S. Working Visas Babson CollegeNovember 2, 2009 John J. Gallini

2. Visas & Admissions The principal sources of apprehension in international travel are: Take off Landing Clearing Custom and Inspections Hoping your luggage made itThe principal sources of apprehension in international travel are: Take off Landing Clearing Custom and Inspections Hoping your luggage made it

3. Terminology Nonimmigrant Temporary visa/visa status Tourists, Students, Professional Workers, Scholars, Intracompany Transferees, etc. Most require sponsorship Immigrant Green Card or US Permanent Resident May stay in the US for an indefinite period of time Obtained through family or employer sponsorship, the lottery or through political asylum May apply for US citizenship after a waiting period Nonimmigrants Allowed to come to the US for a specific purpose on temporary basisNonimmigrants Allowed to come to the US for a specific purpose on temporary basis

4. Visas & Admissions Visa vs. Status Visa Allows the foreign national to apply for admission to the US from abroad Defines the “visa status” that the foreign national is given when she enters the US Granted by the US State Department located in US Consulates abroad

5. Visas & Admissions Visa vs. Status Status Granted upon inspection and admission into the US Determines what permitted activities and length of stay Once in the US – and assuming eligibility – a foreign national can apply to extend his visa status and to change his visa status to another visa status Reflected on a Form I-94, Departure Record

6. Visas & Admissions Presumption of Immigrant Intent – INA §214(b) Presumed to be an immigrant until satisfactorily establish qualification as a nonimmigrant. Visa Application Stage Port of Entry Visitors (VWP, B-1/B-2), Students (F, M,) and Exchange Scholars/Trainees (J) must have unabandoned residence abroad H-1, E-1/E-2, L- 1, O, and P are exempt

7. Visas & Admissions Visa Needed Before Entry General Rule: Will need a visa Exceptions: Canadians other than E treaty/trader Landed Immigrants not included Nationals of Visa Waiver Program Countries 35 countries – 8 CFR §217.2(a) Must be entering as a visitor 90 day max stay No extensions or changes of status Visa Waiver Andorra, Australia, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Lichtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, U.K. Visa Waiver Andorra, Australia, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Lichtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, U.K.

8. Visas & Admissions Obtaining a Visa Governed by 22 CFR §41.101 Consular office having jurisdiction over place of residence Discretionary jurisdiction if applicant physically present in consular district Canada and Mexico Exception: Where prior nonimmigrant visa voided Must apply at consular office in country of nationality unless extraordinary circumstances

9. Visas & Admissions Advance Considerations Passport Validity Reciprocity Rules Jurisdictional Rules Wait times and Processing Times High-fraud vs. Low-fraud post Prior Travel Degree and Prior Employment

10. Visas & Admissions Security Checks Consular Lookout and Support System (CLASS) Name check database 18 million records of foreign nationals who have sought entry Includes: FBI’s National Crime Information Center (NCIC); TIPOFF; Interagency Border Inspection System (IBIS); Treasury Enforcement Control Systems (TECS); National Automated Immigration Lookout System (NAILS); and Nonimmigrant Information System (NIIS)

11. Visas & Admissions Security Advisory Opinions (SAOs) Visas Donkey – name “hit” based on non-criminal issue Visas Condor –focused on potential terrorism applicants Culled from DS-157 Applies “native” standard Country of birth, citizenship or residence and to persons born in “Terrible 5” or “List of 26 Countries” Terrible 5 – Cuba, Iran, North Korea, Sudan and Syria Previously included Iraq until it came under “US control” Also used to include Libya. Must wait for affirmative response from all participating agencies before visa can be issuedTerrible 5 – Cuba, Iran, North Korea, Sudan and Syria Previously included Iraq until it came under “US control” Also used to include Libya. Must wait for affirmative response from all participating agencies before visa can be issued

12. Visas & Admissions Security Advisory Opinions (SAOs) cont.’d Visa Mantis Ensure sensitive, dual-purpose technology not stolen or shared with potential enemies Based on Technology Alert List (TAL) and Critical Fields List Special scrutiny for natives of T-5 countries. Includes Chemical, biotechnology biomedical engineering, biochemistry, immunology, microbiology, pharmacology, genetic engineering, chemical engineering.Includes Chemical, biotechnology biomedical engineering, biochemistry, immunology, microbiology, pharmacology, genetic engineering, chemical engineering.

13. Visas & Admissions NCIC Checks and “Hits” Pulls up information on terrorists and individuals with outstanding warrants Also pulls up criminal convictions as minor as simple DUIs and shoplifting. Hits require full fingerprinting and FBI clearance

14. Visas & Admissions The Interview Process Varies from Post to Post Scheduling Fee Payments Required Documents Attorney Representation Return of Passport Processing time

15. Visas & Admissions The Adjudication Is the Applicant Qualified for the Visa Is the Applicant Otherwise Admissible Burden rests with Applicant

18. F-1 Students and Practical Training What is Practical Training? Issued to foreign students in F-1 visa status Employment authorization to work with any employer in the U.S. within the student’s major area of study Either Curricular (CPT) or Post-study (OPT)

19. F-1 Practical Training Undergraduates: Requires prior enrollment for at least a full academic year. Must be related to course of study Must be to gain practical training Not for English language training Graduates: Exempted from full academic year rule Up to 12 months with exception for STEM graduates If STEM, can apply for additional 17 months Can be used during the school year and most commonly, after graduation If OPT, requires filing to USCIS for an Employment Authorization Document (EAD)

20. The OPT Rules Timeline for Obtaining EAD on a Period of OPT Student first obtains OPT authorization from the school’s DSO on their SEVIS Form I-20 Once OPT has been recommended, an F-1 student must apply for her EAD by filing Form I-765 with USCIS up to 90 days prior to the end of her program and up to 60 days after the end of her program But remember – you must apply for the EAD within 30 days of the OPT recommendation by the DSO Employment authorization begins on the date the EAD is issued, or if later, the date that the student completes his course of study Employment Authorization cannot run longer than 14 months after the end of the student’s program

21. The OPT Rules 17 Month OPT Extension for STEM Students Provided that the requirements are met, the DSO may extend OPT for 17 months beyond the standard 12 month period for degree holders in the Sciences, Technology, Engineering and Mathematics (STEM) (http://www.ice.gov/sevis/stemlist.htm) Once extended OPT is recommended by the DSO, the foreign student must apply for extended EAD from USCIS Only applies to F-1 students who have graduated with a Bachelor’s, Master’s or PhD from a US college/university in a STEM field Can be used only once for all degree programs in the US

22. The OPT Rules Requirements for the 17 month extension: DSO can recommend the 17 month OPT extension after verifying the student’s eligibility and her understanding of her obligations under the program Student must already be participating in a post-completion period of OPT Student must be working with/have a job offer from a US employer in a job directly related to her major area of study and that is registered with the USCIS E-Verify system

23. The OPT Rules Student and Employer Obligations Student must report to DSO: - name/address changes; - change of employer or employer’s name/address - loss of employment; - validation report regarding aboveto the DSO every 6 months until extended OPT ends. Employer agrees to report to the DSO any termination or departure of the student Student must report to the DSO within 10 days of any change in his name, address, employer’s name or address or a loss of employment Student must also make a validation report to the DSO every 6 months until extended OPT ends confirming his name, address and employer’s name and address Employer must agree to report to the DSO any termination or departure of the student Student must report to the DSO within 10 days of any change in his name, address, employer’s name or address or a loss of employment Student must also make a validation report to the DSO every 6 months until extended OPT ends confirming his name, address and employer’s name and address Employer must agree to report to the DSO any termination or departure of the student

24. The OPT Rules During OPT, F-1 status is now tied to continued employment: 12 Month OPT May not accrue more than 90 days of unemployment STEM 17 month extension of OPT may not accrue more than 120 days (aggregate) of unemployment Applies to entire 29 month period of post-completion OPT STEM extension available if apply while in initial 12 month period of OPT STEM allows interim employment authorization extension while application pending

25. Transition from F-1 to H-1B Transition to H-1B Status and the Cap Gap Issue Post-completion OPT starts sometime in the period from completion of the educational program to 60 days after completion and runs for up to 12 months Thus OPT (and employment authorization) end in the May-July timeframe every year New H-1Bs become effective on October 1st of each year Accordingly, there is a gap from the end of OPT to commencement of H-1B of anywhere from 2 to 4 months Prior to 2008, during gap period, F-1 student had no valid status and no employment authorization – must leave the US or transfer to other status

26. Transition from F-1 to H-1B The Cap Gap Fix: If an F-1 student has an H-1B visa petition and change of status filed on his behalf with an effective date of October 1st; Then his F-1 status and employment authorization are automatically extended until October 1st - no affirmative application is required. In the event that the H-1B visa petition is rejected, denied or revoked, the automatic status and employment authorization extension end immediately

27. Transition from F-1 to H-1B But, a few traps: Automatic gap extension is only until October 1st – if your H-1B isn’t effective until November 1st, then you have a gap Automatic gap extension only applies where your H-1B petition included a change of status application – a petition filed without a change of status would not technically allow eligibility for the automatic extension

28. H-1B Requirements: Professional-level position - requires a 4 year Bachelor’s degree in a specific field Alien must possess a 4 year Bachelor’s degree in the appropriate field or its equivalent 3 years experience = 1 year of college Employer must be financially viable Salary for the position must meet “prevailing wage”

29. H-1B Specialty Workers The H-1B Cap 58,200 H-1Bs available each Fiscal Year 20,000 additional H-1Bs available each Fiscal Year to foreign nationals with US Master’s degree or higher 6,800 H-1Bs available each Fiscal Year to citizens of Singapore and Chile Fiscal Year of the USCIS runs from October 1st to September 30th New H-1Bs for the coming Fiscal Year may be filed starting April 1st – with an October 1st effective date – i.e., 6 months in advance

30. H-1B Specialty Workers The H-1B Cap – Who Is Subject to the Cap? Foreign nationals who are in the US in another visa status (F-1, B-1) and who, prior to that time, were not in H-1B status Foreign Nationals who are outside of the US and who were not previously in H-1B status in the US within the past year

31. H-1B Specialty Workers The H-1B Cap – Who is Not Subject to the Cap? Foreign nationals who are in the US in valid H-1B status with another employer (H-1B Transfers) Foreign Nationals who are in the US in another visa status (F-1, B-1) and who, prior to that time, were in H-1B status Foreign Nationals who are outside of the US and who, within the past year, were in H-1B status in the US

32. H-1B Specialty Workers The H-1B Cap – Who is Not Subject to the Cap? Foreign nationals who are being sponsored for the H-1B by: An institution of higher education (college or university) or affiliated non-profit organization; A non-profit research organization; or A government research organization

33. L-1 Intracompany Transferees Multinational Companies Requirements: Temporary transfer from foreign employer to a US parent, affiliate or subsidiary Affiliate: at least 50% co-ownership by same parent Transferee employed abroad with foreign employer for one full year out of the immediately preceding 3 year period Transferee’s employment abroad and position in U.S. must be executive, managerial or requiring specialized knowledge

34. Alternatives to the H-1B The O-1 Extraordinary Ability Alien Arts, sciences, media or business the standard is whether the alien is one of a handful of people recognized as expert in their field Meet “extraordinary ability” criteria At least three out of nine categories (includes receipt of prizes/awards, scholarly articles published, published material about the alien or his work, participation as a judge of the work of others, etc.) Requires union or peer organization letter confirming the alien’s “extraordinary ability” and expressing no objection to his working in the US

35. Alternatives to the H-1B The J-1 Business Trainee To obtain on-the-job training with a US employer Foreign degree and 1 year of experience outside of the US or 5 years of experience outside of US Sponsorship through a J-1 sponsor, commonly a non-profit cultural exchange/training organization (www.AIPT.org, www.AILF.org) Train/work under the auspices of the J-1 sponsor with a US employer that has been approved by the J-1 sponsor Requires putting together a detailed on-the-job training program – assistance from the J-1 sponsor Valid for up to 18 months

36. Alternatives to the H-1B The TN Treaty National Allows a Canadian or Mexican national to work for a US employer in the US for up to 3 years Specified job categories (approx. 50) – e.g. “engineers”, “systems analysts”, “teachers” Canadian nationals can obtain TN visa status at a US-Canada border post Mexican nationals must apply for a TN visa at a US consulate Up to 3 year increments – no outside cap on number of successive years in TN status Difficult to transition to US permanent resident (Green Card) status

37. Alternatives to the H-1B E-1/E-2 Treaty Trader/Investor Visa Available to nationals of certain countries (including most of western Europe) who are establishing an active US business US business must be majority owned by nationals of the Treaty country Detailed rules on investment in US business, active business requirement Visa issued for 3-5 years and extendable in similar increments indefinitely as long as business continues in operation

38. Alternatives to the H-1B The L-1 Intracompany Transferee Allows an alien to be transferred from a foreign employer to an affiliated US employer Alien must have been employed with foreign affiliate for 1 full year outside of the US within the past 3 years Foreign employer and US employer must be affiliated through parent/sub relationship, common ownership Alien must have worked abroad and be coming to the US to work in a managerial or executive position or a specialized knowledge position No Cap on number of L-1s that may be issued Valid for 7 or 5 years

39. The Immigrant Visa Petition Stage 2 – I-140 Filing Purpose is to establish eligibility of the Alien for an immigrant visa within an employment-based category Unskilled Workers Skilled Workers Professionals Advanced Degree Holders National Interest Waiver Intracompany Executives/Managers Outstanding Researchers/Professor Aliens with Extraordinary Ability

40. Adjustment of Status Application Stage 3 – I-485 Filing The purpose of the Adjustment of Status application is to establish that the Alien does not fall within a number of categories of undesirables: Polygamists Communists Drug traffickers Persons with communicable diseases (including HIV) Persons with certain criminal records Terrorists Potential public charges

41. Adjustment of Status The I-485 Process Filed with the CIS Regional Service Center Fingerprinting and a medical examination Process times vary wildly Can be consolidated with the I-140 Immigrant Visa Filing if Visa Available Can Apply for Employment Card and Travel Document

42. The Prize