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Immigration for International Students

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  1. Immigration for International Students Basic Rules

  2. Presented by: • David A. M. Ware, attorney at law David Ware and Associates • 800 537 0179 or 225 292 9091 • www.david-ware.com • dware@david-ware.com • Baton Rouge. Jackson. Metairie. Pensacola

  3. The Big DOs and DON’Ts • DON’T work off campus without permission. • DO take advantage of legal work programs. • DO apply for OPT before graduation. • DON’T leave US without intl. office checking your documents and signing I-20. • DON’T forget to transfer properly.

  4. The Big DOs and DON’Ts • DO take a full course of study. • DON’T drop below a full load without international advisor’s permission. • DO well in school. • DON’T get kicked out. • DO keep your I 20 and passport valid. • DO advise school within 10 days of address change.

  5. Big DO’s and DON’Ts • DO go to your international advisor with questions and problems. • DO tell international advisor promptly if you are out of status. • DON’T rely on friends, rumors, or the internet. • DON’T lie to the government. • DON’T engage in criminal conduct.

  6. Basic RulesEmployment • Avoid working off-campus without permission. • Five employment programs for F’s: ON CAMPUS: 20 hours per week during school; 40 hours per week during breaks/holidays.

  7. Basic RulesOff Campus Employment SEVERE ECONOMIC HARDSHIP: F-1 student for full academic year, and currently maintaining status. Hardship unforeseeable, arose after entry, eg, currency fluctuations, medical bills, problem with sponsor, currency controls, natural disaster. SPECIAL STUDENT RELIEF: DHS may designate students as eligible if receiving support from geographic areas undergoing natural, economic, political problems. Current designation: students affected by Hurricane Katrina. Students are allowed to apply full time on campus, or off campus employment, and if granted such employment authorization, to reduce their course load to six hours (undergrads) and three hours (grads). Students could apply for this relief until 2/1/06.

  8. Basic RulesPractical Training: Optional and CurricularOptional Practical Training • Application requirements: • Full time student • Currently maintaining F-1 status • Have been a full time student at ICE approved school for about six months at time of applying • Employment elated to degree program • Part time during school year; full time during breaks, summers, all but thesis or dissertation, or after studies

  9. Basic RulesOPT (continued) • If OPT after program of study is desired, you MUST apply before all degree requirements completed. • Apply early! EAD can take four months. • One year OPT for each academic level (Associate’s, Bachelor’s, Master’s, Professional, PhD). OPT can’t be “saved” for future degree programs; very hard to cancel after card received. • One year OPT may be split as you desire, eg, 3 months for each of four summers. Only practical if you plan carefully!

  10. Basic RulesOPT (continued) • Transfer or beginning full time study in new program automatically terminates OPT. • OPT should be viewed as unique opportunity to get US experience and/or an entrée into US job market—don’t waste it! • Starting your own business while on OPT usually a dead end: can’t self sponsor for work visa, PR. However, SOME may be eligible for E 2 visa.

  11. Basic RulesCurricular Practical Training • Integral part of established curriculum • Whether for credit or not, should appear in course catalogue • Can be internship, practicum, coop, work/study, or similar program REQUIREMENTS: • Full time student • Attended ICE approved school for full academic year, except certain grad students • Currently in F-1 status • Available full time summer and vacation • Part time during school year • One year or more in full-time CPT or two years of part-time CPT makes you ineligible for OPT • Must have job offer • CPT is endorsed directly onto I 20 by advisor; no application with USCIS necessary

  12. Basic RulesLeaving the country • Always notify your advisor. • Must have an endorsed I-20 for reentry. • Must have valid F visa for reentry (except Canadians and as noted below). • Must have valid passport for reentry. • If going to Canada, Mexico, or adjacent islands for less than 30 days, UNLESS for visa application, may reenter with original I-94, old expired visa in valid passport, and endorsed I-20, EXCEPT those from N. Korea, Libya, Sudan, Syria, Iran, Cuba, Iraq. • Keep original I-94 if going on short trip to Canada, Mexico or adjacent islands. Otherwise always good to keep copy of all I-94’s.

  13. Basic Rules Leaving the country (continued) • Grace periods for departure: • 60 days for student who completed course of study and any authorized practical training. • 15 days for student authorized by advisor to withdraw from classes. • No departure period if withdrawal without advisor permission.

  14. Leaving the Country:Getting a New Visa • Must show strong ties to home country; this can be a problem if your country is in turmoil, has economic or social problems. • NEVER apply for new F visa while on OPT; harder to show ties. • NVARS.com can be used for visa appointments in Canada; new software system soon. Mexico: visa-usa.com.mx. • “List of 27” males generally cannot process in Mexico or Canada; usually have lengthy security check. • Others may also have security checks, eg technology transfer; fields with applications to terrorism. • Fingerprinting for any reason, especially criminal charges, whether or not dismissed, may result in delay. • Because of greatly tightened visa issuance, and lengthy security checks, discretionary travel with expired visa is not recommended. • HAVING RECEIVED AN F VISA BEFORE IS NO GUARANTEE OF GETTING A NEW ONE!

  15. Subject to Special Security Checks: Expect Delays! • “List of 27” males: born in or citizen of: Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, possibly Turkey, UAE, and Yemen. List is secret! • Technology Alert List: studying or working in area subject to technology transfer or applicable to terrorism. Materials science, high speed computing, nuclear energy, avionics, etc. • Any prior fingerprinting, arrest, or conviction.

  16. SEVIS Fee • Most F’s, M’s and J’s who make an initial entry to the US to begin a program, or reenter with a new I 20/ DS 2019 after an absence of more than five months, or who change status to student or exchange visitor, must pay a fee of $100 to DHS. This payment may be made on the internet or by mail. • Dependants do not pay a fee; and there is a lower fee/no fee for certain J’s in special programs. • Continuing students whose initial entry was on or before 9/1/04, who are extending or reentering US within five months need not pay.

  17. Basic RulesTransfers • Notify old school of intent to transfer. • Sign new I-20 at new school within 15 days of start date. • Must transfer after being “released” by old school. • Must have “attended” original school. • Resume classes within five months of transfer or end date on old I 20, whichever is earlier. • If on OPT, must resume classes within five months of transfer or end of OPT, whichever is earlier. • Five month rule may mean may have to start school earlier than planned. • Must be SURE of intent to transfer; those who don’t transfer after “release date” must request reinstatement.

  18. Basic RulesFull course of study • Enrolled for at least twelve semester hours or equivalent. • For graduate studies the school determines full time requirements. • Not required to attend school in summer. • Not required to be full time in last semester if need less than full load to graduate—prior authorization of international advisor required. • ICE may allow students from certain countries in crisis to drop below on country by country basis (SPECIAL STUDENT RELIEF). • Intl. advisor may in limited circumstances allow student to drop below full load because of academic difficulties in first semester. • International advisor may allow student to stop attending school for health reasons; must be verified by MD; aggregate one year during one academic program. • NEVER drop below without permission of INTERNATIONAL advisor.

  19. Basic RulesExtension of stay • Period on I 20, NOT VISA STAMP IN PASSPORT, determines stay in US. • Advisor no longer allowed to add one year “grace period”. • I-94 marked “D/S”, which means duration of status; student allowed to remain as long as studying full time and obeying all other rules. • 60 days after completion plus OPT to leave, request transfer, or change status. Out of status if remain after completion, no OPT, or change of status or transfer request. • Advisor may grant extension if for valid academic or health reasons. • Must apply for extension before I-20 expires.

  20. Changing Status to Student • B-1 or B-2 to F: You must have been in the US at least ninety days; must not have intended to study at time of entry. You must be prepared to spend entire academic career in US, as getting F visa very difficult after change from tourist. May not study til application granted.

  21. Changing Status to Student (contd) F-2 to F-1: Should have last arrived in US more than 90 days before date of application. May not study full time or seek degree until application approved. J to F-1: Must not be subject to two year foreign residence reqt. or have it waived. Other statuses to F: must generally have arrived in US at least 90 days prior; no bar on study while application pending.

  22. Basic RulesFailure to Maintain Status • Consequences: • Denial of transfers • Denial of CPT and OPT • Denial of employment on campus • Deportable • Information entered in SEVIS system • ICE is prioritizing and actively seeking out “SEVIS violators” • Difficulty obtaining new visas and/or reentering US

  23. Basic Rules Reinstatement • Students must apply for reinstatement within five months of violation of status. • Exceptional circumstances must be shown if more than five months. • No reinstatement if worked illegally; DHS checks SSA database. • ICE can still arrest you while reinstatement pending. • They will DEFINITELY come looking for you if reinstatement denied. Requirements: • Full course of study. • No unauthorized employment. • Document circumstances beyond your control which caused violation.

  24. Basic RulesInternational student advisor • Go to advisor before going to CIS. • Information is kept confidential, except matters relating to your status vis-à-vis the school, which must be reported to ICE via SEVIS.

  25. Sources of Information DO NOT RELY ON FRIENDS, RUMORS, OR INTERNET FOR ADVICE GO TO CIS OR AN EXPERIENCED IMMIGRATION ATTORNEY ONLY IF REFERRED BY YOUR INTL. ADVISOR

  26. Basic RulesHonesty • Dishonesty with DHS or US consul carries numerous penalties, including permanent ineligibility for nonimmigrant visas and permanent residence. More easily detected today: better record keeping, data sharing. • Note: Govt. agencies have access to tax and Social Security information! • Dishonesty with government agencies may also have criminal consequences.

  27. Criminal activity • Conviction for most crimes, engaging in drug trafficking, or claiming to be a US citizen, entail deportation, denial of future nonimmigrant visas, as well as denial of permanent residence. • Minor crimes, such as shoplifting, now may result in deportation, refusal of future visas, as well as denial of admission to the US. • Conviction of offenses relating to a spouse, domestic partner, fiance, sweetheart, or child, such as violation of a protective order, stalking, domestic or child abuse, will result in automatic deportation, even if a misdemeanor.

  28. What About Katrina? • According to Immigration and Customs Enforcement, affected students must have transferred to a new school within 30 days or have left the country. • Many schools admitted affected international students very liberally, and even created delayed semesters for those who could not start immediately. • USCIS has instructed adjudicators to liberally grant change of status/extension of stay to hurricane victims for one year. • Legislative proposal would protect status until 1/06.

  29. What About Katrina? • USCIS created new employment/reduction of course load program (Special Student Relief) on November 25. • Unfortunately, the program only granted benefits until February 1, 2006—in effect of very little use to anyone.

  30. What About Katrina/Rita? • FEMA: unfortunately, the Federal Emergency Management Agency (FEMA) erroneously informed students that they were eligible for cash relief. • Nonimmigrants are not eligible for this relief, and should return it if received. • Failure to do so could raise public charge and fraud issues.

  31. Final Rule HAVE FUN AND ENJOY YOUR STAY IN THE U.S.!!!!

  32. Is There Life after OPT?

  33. After OPT—the H1B • Employer must sponsor • Employer specific • Position requires 4 yr degree • Employee must have degree in same or related field • OR, must have 3 yrs professional level experience for each year of degree lacking

  34. The H1B • Employer must pay competitive wage. • Employer generally must pay fee of $1250 or $2000 to USCIS; some exceptions. • Employer must need the services of foreign employee, but need not recruit, or prove Americans can’t be found. • Relative or friend cannot sponsor if their business has no need for your expertise. For example, no accountant or systems analyst needed for corner grocery store. Likewise, no engineer needed for café.

  35. H1B Mechanics • Labor condition application. Employer must certify: Competitive wages Competitive working conditions No strike or lockout Other workers notified LCA approved on line in a few hours or days Wages can be checked at david-ware.com: click on “OES Wages”

  36. H1B Mechanics • Once LCA is approved, petition is filed with CIS, together with employer letter, proof of worker’s qualifications. • Anyone may request premium processing for 15 day turnaround • Two to three months if regular processing • 3 yrs max with 3 yr extension • More extensions available if PR started by end of 5th year

  37. H1B Mechanics • Once H1B status approved, employee may “port” to new employer just by properly filing new H petition; no approval needed • H1B status does not equate to visa • H1B visa is only needed if intl. travel desired • Beware of security checks and special reqts. at certain posts when visa processing • “List of 27” males must get visa in home country

  38. Quota Problems • H1B’s are limited to 78,200+ per year • Exempt from quota: • Persons already counted against the quota (currently in H status or previously counted against the quota and have not left US for more than one year). • Those working for higher ed and affiliated entities, nonprofit research orgs., govt. research orgs., certain physicians previously J-1.

  39. Quota Problems • Special “carve out” for H1B1’s from Chile and Singapore • Extra 20,000 visas for fiscal year 2005—limited to those with US earned Master’s degrees or higher. Quota exhausted 1/17/06. • Regular fiscal year 2006 quota exhausted August 10! • Those not exempt from quota or who have no US earned MS, may not file for an H until April 1, for employment to begin October 1, 2006!

  40. Alternatives to the H1B • O-1– alien of extraordinary ability or achievement • Q-1– cultural exchange alien • J-1 trainee. Programs listed at travel.state.gov • L-1– intracompany transferee. Must be employed abroad by multinational co. for 1 yr. during 3 yrs prior to coming to US. • R-1-- jobs with significant religious content. • TN-- Canadian or Mexican working in occupation in Annex to NAFTA. • H1B1– professional from Singapore or Chile. • E-3– professional from Australia.

  41. Ways to obtain permanent residence • Citizen or resident relative • Fear of persecution • Employment • Investment • Visa lottery • Special programs • Future amnesty?

  42. US Citizens May Sponsor: • Brother or sister—loong wait! • Spouse: No fraud please! Fraud equivalent to drug offense! Conditional residence if married for less than 2 years. • Parent, only if the sponsoring USC child is over 21. • Fiancé: must marry petitioner within 90 days of arrival. Only available if fiance outside US. • Child; if under 21, very quick; if over 21 long wait; usually longer if married.

  43. Permanent Residents May Sponsor: • Spouse. Gotta be real! Fraud equivalent to drug offense! • Child of any age: must remain single til PR received. • Long wait for spouse and minor child; longer wait for child over 21.

  44. Employment • Generally, full time job offer required. • Labor certification most common means: • Employer must advertise job. • Skill or profession relatively scarce in U.S. • Two year wait for PR. • May be longer if no MS required and born in China, India or Philippines. • PERM has speeded up the labor certification, but increased demand has created backlogs in EB 3 (Bachelor’s or less) and for some countries, EB 2 (higher than Bachelor’s).

  45. Employment—Other Categories • Extraordinary ability—top of field; no job offer needed • National interest waiver—activity in national interest and national in effect; applicant will affect field to a greater degree than others; no job offer needed • Outstanding professor or researcher—permanent job offer; natl. or intl. renown; 3 yrs experience

  46. Asylum • Fear of persecution due to race, religion, social group, political opinion or national origin • Must apply within one year of arriving in U.S. • May apply to become PR in one year after grant • If denied you may appeal before Immigration Judge, if not maintaining status. • Best to maintain status while waiting for decision, so as not to be deported if denied. • Important to receive advice from immigration attorney experienced in asylum applications before filing. DON’t use a document preparer! • Filing false or frivolous asylum application has VERY serious consequences.

  47. Investors • Permanent residence: Investment in active business of $500,000 to $1,000,000 and creation of 10 full-time jobs. Stocks, bonds, inactive real estate do not help. • Long term visa (E-2 or E-1): • Job creating business; invest about $50- $100K or engage in “substantial trade” with treaty country • Country of nationality must have an investor or trader treaty with U.S. See travel.state.gov.

  48. Visa lottery • 50,000 immigrant visas per year. • Held usually in October and November. • Application online only: increases chances for applicants with access to internet. • Must have at least a high school diploma or two years training or experience in trade or profession requiring same. • Self OR spouse must be BORN IN qualifying country; CITIZENSHIP irrelevant. • Details at travel.state.gov.

  49. Special programs • For select groups • Cubans, Nicaraguans, and Haitians are recent examples • Is there an amnesty or other help for undocumented in our future? Several proposals currently pending in Congress.

  50. Do I Need an Immigration Lawyer? • First, go to your international student advisor. He or she may be able to answer your question or solve your problem without need for a lawyer. He or she is FREE and has special training and expertise in immigration rules. He or she will have access to all the latest information regarding immigration rules and regulations.