spring 2011 immigration/employment options after student status art serratelli, esq. vandeventer...

Spring 2011

Immigration/Employment Immigration/Employment Options After Student Options After Student

StatusStatus

Art Serratelli, Esq.Vandeventer Black LLP

immigration_art@yahoo.com

Norfolk Richmond Raleigh Kitty Hawk

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• What are the immigration rules?

• What should you say in a job interview about the rules?

• Does the employer have a “Policy”about “sponsoring” work visas / work authorization?

• What are the “major concerns / worries” that employers have? How do you deal with them?

• What about a lawyer?

OverviewOverview

1. Employment-based2. Marriage to U.S. Citizen (Immediate)

3. Diversity Lottery

4. Family-based (Preference)

• ALSO: Asylum/Refugee

4 basic paths to obtain a green card

What are the rules?What are the rules?

OUR FOCUS: WORK STATUS AFTER OPT AND PRIOR

TO THE GREEN CARD ON THE EMPLOYMENT PATH

Actions

Status

Green Card Big Picture Green Card Big Picture (this example, via (this example, via employment)employment)

Maintain F-1 status

Enroll Graduate Apply for H-1B

Maintain H-1B status

Start EB green card

EB-2

EB-3

State

DOL

Fed

DOL

USCIS

visa

backlog

(0-7 yrs)

USCIS

(6 mos

to

2 yrs)

USCIS

(5 yrs)

File

I-140

File

I-485

Green

card

U.S.

Citizenship

Enrolled in school

F-1 status F-1 status Temporary work statusLPR status

LPR

pending LPR

U.S.

CitizenshipOPT Work H-1B or other lawful work status

Employment

Step 1: F-1 or J-1

Step 2: OPT or AT

Step 3: H-1B or other work visaStep 4: Green card based on employment

1 of 4 basic ways to obtain a green card

What are the rules?What are the rules?

Bad news / Good news!• 90 days of unemployment = bad – Proof: Journal of job search tasks, by

day• Paid work is BEST – Proof W-2, tax return

• Unpaid work is OK– Proof: Get a Letter

• Self-employment is OK– Proof: business license, 1099, tax

return

1. Employment1. EmploymentStep 2 A word about OPT

1. Employment1. EmploymentStep 2 A word about OPT

STEM & E-Verify: 17 Extra Months

Database of companiesCan’t confirm the accuracy, but at least a place to startMost recent list:

E-Verify participating companies (as self-reported)

www.smartbusinesspractices.com

Step 3 Post-OPT job search options

a. H-1B [6 yrs]

Requirements• A job offer w/ a company with a “proven

track record,”• For a position that requires at least a 4

yr college degree, and• You have the required degree

1. Employment1. Employment

1. Employment1. EmploymentStep 3 Post-OPT job search options

a. H-1B Features• Subject to the 85,000 quota--lottery• H-1B quota exempt jobs

– Employed at U.S. institution of higher education, or related non-profit entity

– Employed at non-profit research organization or (federal) government research organization

1. Employment1. EmploymentStep 3 Post-OPT job search options

a. H-1B Which companies are hiring? www.myvisajobs.com

1. Employment1. EmploymentStep 3 Post-OPT job search options

b. E-1/E-2 [2yrs or 4 yrs or 5 yrs+]

Requirements• Treaty between your country and U.S.• U.S. company that hires you owned by a

company (or people) from your home country

• White collar, skilled job

c. E-3 – “H-1B for Australians” [2 yrs+]

1. Employment1. EmploymentStep 3 Post-OPT job search options

d. TN [3 yrs+]Requirements• From Canada or Mexico• Job-title specific – see list

1. Employment1. EmploymentStep 3 Post-OPT job search options

e. L-1A/L-1B [7 yrs / 5 yrs]

Requirements• Work overseas 1 full year,• Transfer to affiliated U.S. company or branch

office• L-1A: manager or executive• L-1B: specialized knowledge

– Inside info

* Leads to green card shortcut – EB1 jackpot!

1. Employment1. EmploymentStep 3 Post-OPT job search options

Even more options• R-1 — religious worker [5 yrs]• G — international organizations [vary]• O-1 — Extraordinary Ability [vary]• P-1— Athlete/Entertainer [vary]• A — ambassador / embassy [vary]• I — journalist visa [vary]

1. Employment1. EmploymentStep 3 Post-OPT job search options

Entrepreneurs: Consider These OptionsTemporary Work Status Categories

- - L-1A (new office start-up / business plan)

- - E-1 / E-2 (purchase existing / start-up)

- - TN or H-1B (company: ongoing concern?)

- - Green Card Issues / Ownership

Green Card Category

- - EB-5 Investor Green Card

1. Employment1. EmploymentStep 4 Employment-based green cards

No Labor Certification Required [no advertising]

Examples:

- - EB-1 Outstanding Professor / Researcher

- - EB-2 National Interest Waiver (NIW)

- - EB-1 Intracompany Transferee (L-1A uses this)

Labor Certification Required [advertising]

- - EB-2 and EB-3 PERM Process

1. Employment1. EmploymentWant more information?

Key internet resource— “glossy booklet”(Post-OPT Job Search Summary Booklet)

www.vanblk.com/documents/ImmigrationLawsforBusinessBooklet05.pdf

www.facebook.com/immigration.art

Step 1 F-1 or J-1Step 2 Green card based on marriage to U.S. citizen

2nd of 4 ways to get a green card

2. Marriage 2. Marriage (Immediate)(Immediate)

Step 1 F-1 or J-1Step 2 Green card based on diversity lottery

Features• 50,000 places each year for citizens of countries with few

immigrants to the U.S• If you are eligible, apply through www.travel.state.gov

during eligibility period• Winners should act very carefully within one-year window

of eligibility

3. DV Lottery 3. DV Lottery 3rd of 4 ways to get a green card

4th of 4 ways to obtain a green card

4. Family (Preference)4. Family (Preference)

Step 1 F-1 or J-1Step 2 Green card based on family member in U.S.

Categories• Unmarried sons and daughters (21+) of U.S.

citizens• Spouses, children, and unmarried sons and

daughters (21+) of LPRs• Married sons and daughters (21+) of U.S. citizens• Siblings of adult U.S. citizens

* NOT GOOD—takes too long!

What should you say in an What should you say in an interview?interview?

• Any mention of H-1B & Quotas?• Any mention of E-Verify?• Any mention of OPT?• Any mention of the green card?

*HINT—On a first date, don’t ask for marriage before the soup arrives

You must balance—• The need to mention immigration (answer only

“TINY immigration questions”) with• The need to focus on your resume and unique job

qualifications to get hired

What should you say in an What should you say in an interview?interview?

Slide of Shame

• It is a shame when U.S. employers ask an international student to explain U.S. immigration law!

• SHAME!

• Don’t waste time— you focus on getting hired; let your school or an immigration lawyer explain the law!

What should you say?What should you say?

Key internet resource—The Art Serratelli version of the “Janene Oettel Pamphlet”

http://www.vanblk.com/Resources/documents/ImmigrationGuideToHiringStudents11242008.pdf

www.facebook.com/immigration.art

Want more information?

Employer Policy About Employer Policy About “Sponsorship?”“Sponsorship?”

Large Companies

- Most likely to have a formal policy regarding the hiring internationals.- If the policy is “We Do Not Sponsor”then the odds of changing their minds is 90/10 against the student.- List of “Companies That Sponsor” www.myvisajobs.com

Mid-Sized Companies- Most likely to have never hired internationals.- About a 50/50 chance that they will.

Small Companies- It’s like the Wild West – create your own frontier!- They’ll hire the best person for the company.

What Are the Worries of the What Are the Worries of the Employer?Employer?- “Sponsorship” means we’re tied to this student for life, like being married.

- We do not want to advertise for the job to make sure that no Americans are qualified and available

- The paperwork is too hard; too time consuming.

- “Sponsoring” costs too much.

- What about the I-9? What do we do about that?

How Do You Address These How Do You Address These Worries?Worries?Worry: “Sponsorship” means we’re tied to this student for life, like being married; divorce = pain

Reply• “Sponsoring” basically means getting

permission from immigration to put a foreign-born person on a USA payroll.

• Once you get permission, you can treat me just like an American or a Green Card worker!

How Do You Address These How Do You Address These Worries?Worries?

Other Employer Worries• We have to advertise before we sponsor, and

we don't want to advertise.– NO: Advertising is only for the Green Card!

• Paperwork to “sponsor” is too complicated.– NO: Just 10 or so pieces of employer info; no

documents• What About the I-9? How do we complete

that? – The immigration lawyer will guide you

• Fees for USCIS and a lawyer are too expensive.– NO: Except for 1 fee (for only the H-1B subject to

the quota) that the employer must pay, everything is negotiable

What about a lawyer?What about a lawyer?

1. Lawyer must be a member of AILA2. Lawyer should exclusively practice immigration law3. Only pay a fixed legal fee4. Pick a lawyer via references

4 tips to choosing an immigration lawyer (if you have to . . .)

Questions?Questions?

Contact informationContact information

Arthur Serratelli, EsquirePartner & Chair, Immigration Law Group

Vandeventer Black LLP

Phone (direct line): 757-235-4624

E-mail: immigration_art@yahoo.com

www.facebook.com/immigration.art