Presented by: Mark A. Urbanski, Esq. Immigration Attorney Law Offices of Mark A. Urbanski, PLLC...

U.S. Work Visas and Permanent Residence

Options for Graduating Students and Scholars

Presented by:

Mark A. Urbanski, Esq.Immigration Attorney

Law Offices of Mark A. Urbanski, PLLCWashington, DC Office:

1875 I St., NW, Fifth Floor, Washington, D.C. 20006Virginia Office:

13885 Hedgewood Dr., Ste. 201, Woodbridge, VA 22193Phone: 202-210-9000 (DC) 703-435-9000 (VA)

E-mail: [email protected]: http://www.globecenter.com

(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

About

Mark A. Urbanski, Esq.

B.S. Cornell UniversityJ.D. State University of New YorkMember, American Immigration Lawyers Association since 1996Admitted to N.Y. & D.C. bar, and numerous U.S. Federal CourtsPractice Limited to Immigration Law for 18 yearsOffices in Washington, D.C. and Woodbridge, V.A.Represents individuals, students, scholars, small businesses,

large corporations, investors, educational institutions, hospitals, and municipalities in all aspects of immigration law.


Important Disclaimer:This presentation and any information

provided are solely for educational purposes and should not be construed or relied upon as legal advice nor as

creating an attorney-client relationship.


Topics to be Discussed:Introduction to US Immigration SystemH-1B Professional Working VisasO-1 Outstanding Ability AliensE-2 Treaty Investors Employment-Based ImmigrationLabor CertificationEB-2 vs. EB-3National Interest WaiversEB-1: Extraordinary AbilityEB-5 Investors


Introduction to U.S. ImmigrationTerminology

Nonimmigrant vs. Immigrant Permanent Residence (Green Card) vs. Citizenship Visa vs. Status Adjustment of Status vs. Consular Processing Preference System (numerical limitations) Sponsorship the rule, with some exceptions

Relevant U.S. Government Agencies Department of Homeland Security (DHS)

U.S. Citizenship & Immigration Services (USCIS) U.S. Immigration & Customs Enforcement (ICE) U.S. Customs and Border Protection (CBP)

Department of State (DOS) Visa Office, National Visa Center (NVC) & Consulates

Department of Labor (DOL) Social Security Administration (SSA) Internal Revenue Service (IRS)


H-1B Professional Working VisasBasics

Requirements:Position requires “Specialized Knowledge”Worker possess BA/BS degree Nexus between job and degree

Duration: 6 years total (3yr. Increments)Dual-Intent Visas (Compatible with LPR process)Normal processing time is 2-4 months, but

eligible for premium processing (15 business days)

H-4 Spouse not allowed to work


H-1B Professional Working Visas(continued)

Numerical Limitation65,000 total visas20,000 additional visas for U.S. “master’s cap”Exempt employers– universities, hospitals, certain

non-profits, etc.Quota opens each October 1 (start of Federal fiscal

year)Allowed to apply up to 6 months early, or April 1 for

October 1 start dateUnless cap-exempt, when they’re gone they’re goneIf more visas are received than are available, a

lottery system is applied(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

H-1B Professional Working Visas(continued)

Considerations and FeaturesEmployer Specific (but can have multiple H-1B’s)Must be paid at prevailing wage or higher (for location and job

title)… some exceptions (wage survey, union contract, etc.)Prerequisite to obtain a Labor Condition Application (LCA) from

DOL prior to filing with USCISEmployer must pay certain filing fees (and deductions can not

drop worker below prevailing wage)Allow 2-4 weeks preparation time minimum“Cap Gap” May/June through October 1… may be allowed to work Can go beyond 6 year limit if Labor Certification or I-140 filed

prior to 5-year point of H-1B statusUSCIS has much larger budget for site inspections and

enforcement… be preparedMust be W-2 worker, not 1099 (employee, not independent

contractor)… right to control crucial


Other Nonimmigrant Options:O-1 (Outstanding Ability)

O-1 vs. H-1BAdvantages

Not subject to annual numeric capProfessional degrees not requiredNo specific wage requirement (LCA not required)No training or fraud prevention fees (saves $1,250-

2,000)Agents may file the petition

Disadvantages

Not everyone who can qualify for an H-1B can qualify for an O-1 (much harder to qualify)

Not dual-intent (although not generally a problem)


Other Nonimmigrant Options:O-1 (Outstanding Ability)

Features of O-1 O-1A: Persons of extraordinary ability in the sciences, arts, education, business or

athletics. O-1B: Persons of extraordinary achievements in motion picture or television industry. O-3: Spouses and children of O-1 Principals Extraordinary demonstrated by “sustained national or international acclaim” (O-1A) or

“national or international achievement” (O-1B) To qualify, must be the recipient of a major internationally recognized award such as

the Nobel prize (sufficient) or at least 3 out of 8 of the following: Receipt of nationally or internationally recognized prizes or awards for excellence in the

field Membership in associations that require outstanding achievement Published materials about applicant in major trade journals in the field or in the media Served as a judge of the work of others either individually or in a panel Scientific, scholarly, or business-related contributions of major significance in the field Authorship of scholarly articles in professional journals or other media Employed in a critical or essential role with organizations with a distinguished

reputation Has commanded high compensation


Other Nonimmigrant Options:E-2 (Treaty Investors)

FeaturesNo numerical limitationNationality of dependent not relevantE-2 spouse may obtain EADLength of visa depends of reciprocity (up to 5

years) but continually renewable (no time limit!)May be consular processed or change status in

U.S.Unlike H-1B and other categories, consulate must

re-adjudicate E-2GREAT option for start-ups and entrepreneurs


Other Nonimmigrant Options:E-2 (Treaty Investors)

RequirementsInvestor must be national of treaty countryInvestment enterprise must have nationality of treaty

countryHas invested or is actively in the process of investing (Funds

must be “at risk”)Legal source of funds Must be a “commercial enterprise” Investor must “develop and direct” enterprise (not passive)Investment must be “substantial” (usually $100,000 or

more is enough)Investment must not be “marginal”


Employment-Based Immigration

EB-1 Outstanding Professor/Researcher, Multinational Manager/Executive, Outstanding Ability Alien (in arts, science, business, education or athletics)

EB-2 Advanced Degree Professional* and National Interest Waiver

EB-3 Skilled and Professional Worker*

EB-4 Special Immigrant

EB-5 Immigrant Investor

*Labor Certification Required


Employment-Based Immigration(continued)

Labor Certification

Immigrant Petition

Consular Processing

Adjustment of Status

Work Permit

Advance Parole

Current Priority Date


Labor CertificationTest of U.S. Labor Market to determine if U.S. Citizen availableMust first obtain official prevailing wage determination (60 days)Then min. 60 day recruitment period (3 ads, or 5 if professional)Uses PERM Online Filing System6-12 month processing timeFiling of LC establishes priority dateMust meet minimum job requirementsSkilled = requires BA/BS degree or higher or 2+ years of

experienceBased on an OFFER of permanent, full-time employment


EB-2 vs. EB-3 EB-2 requires both that you have an advanced degree (Masters or higher) AND that the

position also requires that degree Can also use Bachelor’s plus 5 years of progressive experience to qualify for EB-2 Schedule A, Group I professions can waive labor certification (EB-2 or EB-3), currently

just nurses and physical therapists EB-2 also offers Schedule A, Group II option for an “alien of exceptional

ability in the sciences, arts or business”… no labor cert. required, but employer sponsorship is

Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business”

Therefore, EB-2 is often riskier since requirements can be scrutinized by DOL and USCIS (and audited)

Main advantage of EB-2 has been shorter waiting time (current priority dates for most countries), but that has changed recently

EB-3 down to around 1.5 years in Visa Bulletin


National Interest WaiversAs name implies, requests that labor certification requirement be waivedOnly EB-2 petition category which does NOT require employer sponsorship Must meet general EB-2 requirements (advance degree, or bachelor’s plus 5

years progressive experience, etc.)Must satisfy the requirements of the three-prong test laid out in New York State

Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998): The beneficiary must seek to work in an area of substantial intrinsic merit The beneficiary’s work must have a benefit which will be national in scope The beneficiary must serve the national interest to a substantially greater degree than

would an available U.S. worker having the same minimum qualifications. The national interest would be adversely affected if a labor certification were required

for the beneficiary.Must keep in mind that national interest of the UNITED STATES is what countsTo qualify, must really demonstrate “what makes you so special”… that the U.S.

can not do without you (no one else can do what you do)


EB-1: Extraordinary AbilityNo labor certification required, and can self-petition, but must

show coming to work in area of expertiseFor EB-1, must have “extraordinary ability in the sciences,

arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.”

Extraordinary ability is defined as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.”

Also a category of EB-1 for “Outstanding Professors or Researchers”… requires employment in Academia, 3 years post-degree experience, and evidence of “outstanding ability.”


EB-1: Extraordinary Ability Receipt of recognized major international award

Or at least 3 of:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor Membership in associations in the field for classification is sought, which require outstanding achievements of

their members, as judged by recognized national or international experts in their disciplines or fields Published material about the alien in professional/major trade publications or other major media, relating to the

alien’s work in the field for which classification is sought. Evidence of the alien’s participation (individually or on a panel) as a judge of the work of others in the same or

an allied field of specialization for which classification is sought Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major

significance in the field Authorship of scholarly articles in the field, in professional or major trade publications or other major media Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases Evidence the alien has performed in a leading or critical role for organizations that have a distinguished

reputation Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in

relation to others in the field Evidence of commercial success in the performing arts (ex. box office receipts or recording or video sales)


EB-5 Immigrant Investor Category10,000 Immigrant Visas per year available (5,000 reserved for

Regional Centers)Investment of $1,000,000 (or $500,000 if Targeted Employment

Area (TEA)Must be new commercial enterprise, or substantial expansion of

existing enterpriseMust create 10 jobs within 2 yearsGreen Card is Conditional for 2 yearsFor Regional Center investments, no need to actively manage

enterprise or live in proximity to investment locationSpouse and children granted green cardsBy far the best (easiest, fastest) option if you have an extra $500K

that you can do without for 5-6 years(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Contact InfoIf you would like more information, or have questions that you didn’t

have a chance to ask, please feel free to schedule a free consultation by contacting me at…

Law Offices of Mark A. Urbanski, PLLCWashington, DC Office:

1875 I St., NW, Fifth Floor, Washington, D.C. 20006Virginia Office:

13885 Hedgewood Dr., Ste. 201, Woodbridge, VA 22193Phone: 202-210-9000 (DC) 703-435-9000 (VA)

Washington, D.C. 20006

E-mail: [email protected]

Internet: http://www.globecenter.com

Important Disclaimer: This presentation and any information provided are solely for educational purposes and should not be construed or relied upon as legal advice nor as creating an attorney-client relationship.


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