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Prepared by: Andrew H. Gee ‘97 with Tania Glowinski Gonzalez ‘92

Gee & Zhang, LLP. International Students: Employment & Immigration. Prepared by: Andrew H. Gee ‘97 with Tania Glowinski Gonzalez ‘92. www.HarryGee.com/Rice2017. International Students: Employment & Immigration. Immigration Basics Key Categories H-1B In’s & Out’s

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Prepared by: Andrew H. Gee ‘97 with Tania Glowinski Gonzalez ‘92

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  1. Gee & Zhang, LLP International Students: Employment & Immigration Prepared by: Andrew H. Gee ‘97 with Tania Glowinski Gonzalez ‘92 www.HarryGee.com/Rice2017

  2. International Students:Employment & Immigration • Immigration Basics • Key Categories • H-1B In’s & Out’s • Alternative Non-Immigrant (Temporary) Categories • Immigrant Category Review Gee & Zhang , LLP

  3. Immigration Basics Gee & Zhang , LLP

  4. Immigration Basics US Immigration is essentially split into two categories: Immigrant (Permanent Residence) and Non-Immigration (Letter Categories / Temporary) General presumption that all foreign nationals want to come to work and stay Must qualify for an individual category, not a points system Gee & Zhang , LLP

  5. Non-Immigrant Documents • Petition & Approval • Sponsor applies for position & professional qualification with USCIS, which issues approval letter • May change or extend status for those already in US • Visa • Stamp in passport, issued after individual security check and personal interview • Status / I-94 • CBP officer at port of entry grants foreign nationals admission: class of admission & validity date Gee & Zhang , LLP

  6. Petition Approval Letter Gee & Zhang , LLP

  7. Visa Gee & Zhang , LLP

  8. Admission (I-94) Number https://i94.cbp.dhs.gov/I94/request.html Gee & Zhang , LLP

  9. Transition Keys Gee & Zhang , LLP

  10. Transition Keys • F-1 to H1B • Practical Training • Cap Gap • H1B to Permanent Resident • Dual Intent Gee & Zhang , LLP

  11. CPT – Curricular Practical Training Employment prior to graduation Once authorized for CPT by the Designated School Official, students are able to work in an integrated vocational program for up to 12 months Students who have received one year or more of full time CPT are ineligible for post completion training and OPT Gee & Zhang , LLP

  12. OPT – Optional Practical Training Employment post graduation Students may apply for OPT with the U.S. Citizenship & Immigration Services (USCIS) for training related to your area of study Students are generally limited to a total of 12 months of OPT, and this must be completed within 14 months of completion of study Gee & Zhang , LLP

  13. STEM OPT Extensions Students with a degree in science, technology, engineering, or mathematics (STEM) are eligible for a further OPT extension The period of OPT is extended from 12 to 29 months for qualified F-1 non-immigrant who are employed by businesses enrolled in the E-Verify program Gee & Zhang , LLP

  14. Cap Gap – What is It? A Cap Gap situation arises generally where a student’s OPT authorization expires prior to October 1st Normally this prevents students from filing for a change of status from F-1 to H-1B in the US So otherwise it would require students to depart and apply for an H-1B visa at a U.S. consulate abroad, or change to an interim category (visitor) and change again to H-1B. Gee & Zhang , LLP

  15. Cap Gap - Benefit • Cap Gap provisions automatically extend the student’s F-1 status and OPT authorization until the October 1 effective date for foreign nationals who timely filed for an H-1B petition • OPT extension only if valid OPT at time of filing • This allows change of status in the US from F-1 to H-1B, without first having to get visa stamp • A trip to a US consulate would still be required for international travel after October 1st Gee & Zhang , LLP

  16. H-1B Dual Intent One of the great advantages of the H-1B is the benefit of Dual Intent, which allows the foreign national to concurrently maintain non-immigrant status while at the same time applying for permanent immigration to the U.S. This is generally not allowed, as immigrant intent precludes a foreign national’s qualification for many non-immigrant classifications, such as B Visitors and F Students Gee & Zhang , LLP

  17. H-1B In’s and Out’s Gee & Zhang , LLP

  18. H-1B The H-1B is a temporary non-immigrant status that permits a qualified foreign national to work in the U.S. in a specialty occupation that requires the services of a professional ‘Professional’ is essentially defined as a position minimally requiring a Bachelor’s degree The position must require a degree The foreign national must have a degree or equivalent in a relevant field Gee & Zhang , LLP

  19. H-1B Employer Specific &Position Specific The H-1B approval is limited to the job that the sponsor company describes in the application The H-1B will have to obtain an additional, concurrent approval to work second or side jobs A new approval is required when changing positions, although some leeway given to limited progression in the same position (We suggest quick attorney review, as certain responsibilities mandate amendments) Gee & Zhang , LLP

  20. H-1B Timing The fiscal year begins on the 1st of October This is the first day foreign national gaining their H-1B may work for the sponsor company Applications may be received up to 6 months in advance of the effective date A lottery is typically held in April for all applications received during the first 5 business days of the month Gee & Zhang , LLP

  21. H-1B Quotas The H-1B is subject to an annual limit of 65,000 for foreign nationals with Bachelor’s degrees, and an additional 20,000 for those with Master’s or higher degrees from U.S. universities By treaty 6,800 numbers are held for Singapore and Chile, and the unused numbers should be added back the following year Approximately 199,000 applications were received FY 2017 Gee & Zhang , LLP

  22. H-1B Quotas Gee & Zhang , LLP

  23. H-1B Quota Exemption Quota exemptions are available to universities or certain research organizations Time spent in H-1B status with a cap-exempt company still counts towards the 6 year limit An H-1B with a cap-exempt sponsor may also work for a cap-subject sponsor, even when quota numbers are unavailable Individuals must have a quota number to port (switch) to a cap-subject sponsor Gee & Zhang , LLP

  24. H-1B 6 Year Limit • H-1B status is granted generally for 3 years and eligible for an additional extension of 3 years for a total of 6 years • Leaving the US stops the 6 year clock allowing: • time recapture • quota avoidance in the future (remaining time only) • If the foreign national leaves the US for one year, he or she is eligible for another 6 years of H-1B status by obtaining a new quota number Gee & Zhang , LLP

  25. H-1B 6 Year Limit Extensions H-1B status may be extended for 1 year periods beyond the 6 year limit if a Labor Certification has been filed and has been pending for 1 year Furthermore, 3 year extensions are available if the foreign national is a beneficiary of an approved I-140, but visa numbers are not available due to per country limitations Gee & Zhang , LLP

  26. H-1B Grace Periods • H-1B holder may be granted a 60 day grace period upon cessation of the employment • Once per approval • Doesn’t extend past the authorized validity period • Work is not authorized during the grace period, but may work upon timely filed H1B application • 10 days before and after the work period may be issued to accommodate transition • Work is not authorized during this time Gee & Zhang , LLP

  27. H-1B Portability Portability provisions allow H-1B beneficiaries to port (switch) to a new employer Employment can begin immediately upon the filing of a new H-1B petition, for those in proper H-1B status The new petition must be “non-frivolous” and filed before the expiration of a current H-1B The total H-1B time remains 6 years of aggregate work with all employers Gee & Zhang , LLP

  28. H-4 Family H-1B’s spouse and children are eligible for H-4 status while their H-1B is maintained Time in H-4 status doesn’t count against a spouse’s own H-1B eligibility H-4’s are eligible to study Must maintain individual status and documents, not automatic based on the H-1B Gee & Zhang , LLP

  29. H-4 Spouse Employment • H-4’s are recently eligible to apply for work authorization, in certain cases • The Principal H-1B spouse must: • be the beneficiary of an approved I-140 Immigrant Petition (PR Classification), or • have been granted H-1B status under sections 106(a) and (b) of AC21 • Abused spouse eligible for EAD Gee & Zhang , LLP

  30. H-1B Fees • Government Filing Fees: • 25 or more employees $2,460 • 25 or fewer employees $1,710 • I-539 Dependents $370 • Premium (optional, 15 day) Processing – $1,225 • Additionally $4,000 if 50 US employees & 50% US employees are H-1B, L-1A, or L-1B • Legal fees Gee & Zhang , LLP

  31. H-1B Labor Condition Application (LCA) The sponsor company is required to pay the H-1B the prevailing wage and give notice to its employees that a foreign national is being hired The company must complete the LCA notice, post this LCA information, and provide a copy to the H-1B Often confused with the Labor Certification recruitment process, which employers are generally reluctant to deal with Gee & Zhang , LLP

  32. H-1B Visa • Travel outside the US requires a visa stamp with the properly matching category to return • May have multiple valid visas at a time • Be sure to use the correct one • Must have the H-1B approval to get an H-1B visa • Apply at the home or permitted consulate • Plan in advance as seasonal changes may affect the timing of scheduling and processing, taking about a week or two Gee & Zhang , LLP

  33. Alternative Non-Immigrant (Temporary) Categories ABCDEFGHIJKLMNOPQRSTUV VWNAFTA Gee & Zhang , LLP

  34. Alternative Non-Immigrant (Temporary) Categories H-1B1 Singapore & Chile 1 year allocation E-3 Australians (Spouses work eligible) E-1 / E-2 Treaty Trader / Treaty Investor L-1 Intracompany Transferee O-1 (Outstanding) Extraordinary Ability B-1/2 Visitor (Business/Pleasure) & Visa Waiver J-1 Cultural Exchange Trainee H-3 Company sponsored Training Program NAFTA – Canada & Mexico Gee & Zhang , LLP

  35. H1B1 – Singapore & Chile • Substantially equivalent to H1B • LCA; Degree; Job Offer; Fees • May apply directly at consulate • One year validity at a time • Requires showing of foreign residence applicant does not intend to abandon – no Dual Intent • Chile 1,400 • Singapore 5,400 Gee & Zhang , LLP

  36. E-3 – Australia • Generally similar to H1B • LCA; Degree; Job Offer • No Training and Fraud fees • May apply directly at consulate • Requires showing of intent to depart • Annual limit 10,500 • Spouse eligible to apply for work authorization Gee & Zhang , LLP

  37. E-1 Treaty TraderE-2 Treaty Investor Only nationals of countries US has a treaty with E enterprise must be ≥ 50%-owned by nationals of the country (allows self-sponsorship) E-1: based on enterprise doing ≥50% of international trade between US & treaty country E-2: substantial investment required: DOS uses proportionality test. Practitioners typically recommend at least $50,000 Gee & Zhang , LLP

  38. E-1 Treaty TraderE-2 Treaty Investor Two types of E classifications: (1) Trader or Investor (controlling interest in enterprise) and (2) Key Employee Trader E-1: carries substantial trade between US and treaty country Investor E-2: directs/develops the business Key E Employee: same nationality as treaty employer; Executive/Supervisor or Essential Employee Gee & Zhang , LLP

  39. L-1 Intracompany Transferee • For multinational companies seeking to transfer certain employees to the US from abroad • Companies must be related: Parent, Branch, Subsidiary, Affiliate • Must be viable and be of sufficient size to support the need for the position • L-1B 5 year limit; L-1A 7 year limit • Spouse eligible for work authorization Gee & Zhang , LLP

  40. L-1 Intracompany Transferee • Employee must have worked with a related company for at least 1 continuous year within the past 3 years in a position that is • Specialized Knowledge (L-1B): advanced expertise in the organization’s processes and procedures • Managerial (L-1A): Manages the organization or a department, controlling the work of professionals or manages an essential function • Executive (L-1A): Directs the organization or a major component with wide latitude in decision-making Gee & Zhang , LLP

  41. O-1 (Outstanding) Extraordinary Ability • Alien with extraordinary ability in the sciences, arts, education, business or athletics, or movies or television stars (and certain assistants) • Requires a foreign residence to return to • Qualifies with major award (Nobel Prize) • Alternately a combination of USCIS criteria: national awards, published works, membership requiring outstanding achievement, commands high salary compared to others in field, & similar. Gee & Zhang , LLP

  42. B-1 / B-2 • B-1 business or B-2pleasure • may not be engaged in employment or perform skilled or unskilled labor in the US • required to have a foreign residence • enter for specifically limited duration • purpose limited to legitimate activities relating to business • Commercial deals; negotiate contracts; consultations; litigation; conferences; meetings Gee & Zhang , LLP

  43. Visa Waiver • Enables nationals of certain countries to travel to the US for the same business or tourism purposes of a B-1 or B-2 without obtaining a visa for stays of 90 days or less • Requires application for authorization though Electronic System for Travel Authorization (ESTA) • http://www.esta.us • Currently 38 countries participating Gee & Zhang , LLP

  44. Visa Waiver Gee & Zhang , LLP

  45. J-1 Cultural Exchange Program • Covers many different subcategories: Professor or research scholar; short-term scholar; trainee or intern; nonacademic specialist; government visitor; & others. Each has own requirements. • Potential obligation to return to home country for 2-year residence requirement if either: • Participation financed by agency of US government or government of nationality/last residence • field on the DOS Exchange Visitor Skills List • various possible waivers Gee & Zhang , LLP 10/04/2017

  46. H-3 Company sponsored Training Program Company Sponsored Must be substantially for training; not productive employment Requires a detailed Training Plan Limited to 2 years Purpose should be for trainee to gain skills not available in home country & for job outside US Requires showing of foreign residence applicant intends to return to Gee & Zhang , LLP

  47. NAFTA PROFESSIONALS • The North American Free Trade Agreement (NAFTA) allows Canadian or Mexican citizens to temporarily come to the US as professionals • Job must be in one of the listed occupations • Most require Baccalaureate/Licenciatura degree • Accountant; Architect; Computer Systems Analyst; Engineer; Interior Designer; Lawyer; Librarian; Management Consultant; Mathematician; Research Assistant; Medical Professions; Scientists; Professors... Gee & Zhang , LLP

  48. Immigrant Categories Review The Green Card Gee & Zhang , LLP

  49. Employment-based Immigration EB-1 – Extraordinary / Outstanding EB-2 – Certain Professionals EB-3 – General Workers NIW – National Interest Waiver PERM: Labor Certification (Recruitment Process) Visa Bulletin Gee & Zhang , LLP

  50. EB-1 Persons of Extraordinary Ability • Extraordinary ability in sciences, arts, education, business or athletics (allows self-sponsorship and Premium Processing) • Qualifies with major award (Nobel Prize) • Alternately a combination of USCIS criteria: national/international awards, published works, membership requiring outstanding achievement, commands high salary compared to others in field, & similar • Intended for small percentage at top of field Gee & Zhang , LLP

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