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IMMIGRATION LAW AFTER GRADUATION

by Gary Chodorow of Gessler Hughes Socol Piers Resnick Dym Ltd.

(revised 2/20/02)

Tel.: (312)580-0100

Website: http://GaryChodorow.tripod.com

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F-1 Optional Practical Training (OPT)

H-1B Temporary Worker Status

Topics to Be Covered:

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F-1 OPTIONAL PRACTICAL TRAINING

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OPT Basics Eligibility to apply for post-completion OPT:

– Prior to employment: authorization card becoming valid:

• Must have completed course of study (or all course requirements for degree except thesis, if in a bachelor’s, master’s, or doctoral program).

• Must have been legally enrolled on full-time basis for 9 consecutive months at an INS-approved school. (English language training program students ineligible).

– Must be maintaining status. Otherwise, INS may deny application and determine “unlawfully present” in the US.

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OPT Basics (Cont’d)

Duration of OPT—Maximum of 12 Months (Including Pre-Completion OPT):– Pre-completion part-time OPT (20 hours or less)

deducted at 50% rate.– Ineligible if used 1 year of full-time curricular

practical training (CPT). Part-time CPT does not affect OPT eligibility.

– Cannot request part-time post-completion OPT.– Can divide up time: e.g., 3 months after complete

bachelor’s & 9 months after complete master’s.– OPT automatically ends if reenter US with a new I-

20 for a new academic program.

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OPT Basics (Cont’d)

Field of work: – Job must be “directly related to [your]

major area of study and commensurate with [your] educational level.”

– May work for any employer(s). No job offer needed prior to applying for employment authorization.

– To comply with OPT status, must have or be seeking work.

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OPT Procedures How to Apply: Student fills out Form I-765 & Section A of Form I-538. Designated school official (DSO) completes Section B of I-538 &

sends the original to INS Data Processing Center. DSO stamps I-20: “Post-completion OPT in [student’s area of study] is recommended full-time from [date] to [date].”

Mail application to packet to: INS Nebraska Service Center, P.O. Box 87765, Lincoln, NE 68501-7765. Include:– I-765 & copy of I-538 & 2 INS-style photos & $120 check

payable to “INS”– Copies of passport--ID page, passport expiration page, F-1

visa page– Copies of all I-20’s you have had (front & back)– Copies of I-94 card (front & back)– Copies of any prior INS employment authorization cards

Keep a copy of the complete packet Employment authorization card will not be forwarded if you move.

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OPT Procedures (Cont’d)

When to apply:– You may submit application from 120 days before to 60 days

after completion of studies.– Submit the application within 30 days of receiving DSO

stamp.– Start date on employment authorization will be date shown

on DSO stamp or EAD issuance date, whichever is later. End date can be no later than 14 months after completion of studies.

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Miscellaneous OPT Issues

Interim EAD: If application not adjudicated within 90 days of receipt, INS Chicago District Office may grant “interim employment authorization.”

2nd period of OPT: Student must have departed the US for more than 5 months, reenter for a new course of study, and then meet prerequisites for OPT.

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H-1B TEMPORARY WORKERS

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OVERVIEW OF H-1B STATUS

US employer files petition with INS to classify a qualified professional in H‑1B status for the purpose of part-time or full-time employment in a “specialty occupation” (i.e., a profession).

The H‑1B temporary worker’s spouse and unmarried children under 21 years old may be classified in H‑4 status.

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ANNUAL NUMERICAL CAP

195,000 H‑1B petitions per year for fiscal years 2002 and 2003.

Exemptions: Employed at institution of higher education,

related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.

Physicians granted a waiver of the J-1 foreign residence requirement.

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TIME LIMIT IN H-1B STATUS

Initial petition valid for up to 3 years. Subsequent petitions may extend H‑1B

status up to a total of 6 years. Extensions of H-1B status beyond 6

years are possible only in limited circumstances.

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OUTLINE OF PROCEDURES

File a Labor Condition Application for H‑1B Nonimmigrant (LCA) with US Department of Labor (DOL). Processing takes 2 days or less.

File H-1B Petition with INS. Processing takes 2-3 months normally, but upon payment of extra $1000 fee will be processed within 15 days.

Some persons need to obtain a visa—if abroad or if in the US but in violation of status.

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IN LABOR CONDITION APPLICATION, EMPLOYER PROMISES… Required Wage—Greater of:

Actual wage: “the wage rate paid by the employer to [those] individuals with experience and qualifications similar to the H-1B worker’s experience and qualifications for the specific employment in question at the place of employment.”

Prevailing wage: union wage or median wage for the occupation in the area of intended employment. 

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IN LABOR CONDITION APPLICATION, EMPLOYER PROMISES… (CONT’D) Working Conditions: Hiring the H‑1B

temporary worker will not adversely affect the working conditions (e.g., hours, vacation, benefits) of US workers similarly situated in the geographic area.

No Strike, lockout or work stoppage when LCA is filed. DOL will be notified in case of such action.

Notice: Info about LCA will be given to employees and the H-1B temporary worker.

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JOB OFFERED MUST BE A “SPECIALTY OCCUPATION” Bachelor's degree or higher in a specific

specialty, or its equivalent, must be a minimum requirement for entry into the occupation in the United States.” Must meet one of these tests:  A bachelor’s or higher degree or its equivalent is normally the

minimum requirement for entry into the particular position. The degree requirement is common to the industry in parallel

positions among similar organizations The employer normally requires a degree or its equivalent for the

position. The specific duties are so specialized and complex that knowledge

required to perform them is usually associated with the attainment of a bachelor’s or higher degree.

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YOU MUST BE QUALIFIED BY ONE OF THE FOLLOWING…

Hold a US bachelor’s or higher degree required by the specialty occupation

Hold a foreign degree determined by a reliable credentials evaluation service to be equivalent to a US bachelor’s or higher degree required by the specialty occupation

Hold an unrestricted state license authorizing you to fully practice the specialty occupation in the state

Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a US baccalaureate or higher degree in the specialty occupation. (3 years of education or training in field required for every year of education lacking).

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FEES PAYABLE TO INS

$130 filing fee $1000 fee for scholarships, training US workers, and H-1B

administration must be paid by employer and not reimbursed by employee. Exemptions: Nonprofit organization primarily engaged in basic or applied

research. Government organization whose primary mission is research. Primary or secondary education institution. Institution of higher education and connected or associated

nonprofits. Nonprofit entity which engages in established curriculum-

related clinical training of students from institutions of higher education.

Optional $1000 premium processing fee (for INS adjudication within 15 days)

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COMPLYING WITH H-1B STATUS

H‑1B status only authorizes a foreign national to perform the specific work described in the H‑1B petition filed with INS‑‑i.e., with the same employer, in the same position, performing the same duties.

For a second H-1B job, you need a second petition.

H-4 family members are not authorized to work in the US.

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THE END

Copies of this presentation available in the “FAQs” section of:

http://GaryChodorow.tripod.com