Immigration Law Overview

Presented to: UNCC StudentsFebruary 20, 2015

6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com

Based in Charlotte, North Carolina

One of the largest immigration law firms in the Southeast

Six (6) immigration attorneys & twenty (20) paralegals/support staff

Our clients include:

◦ Numerous NC colleges & universities◦ Several NC healthcare systems◦ One of the largest automotive suppliers in the world◦ One of the largest supermarket chains in the U.S.◦ The second largest public school system in NC

Garfinkel Immigration Law Firm

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BA & JD – Wake Forest University

Practicing Immigration & Visa Law since 1984

American Immigration Lawyers Association (AILA)

◦ Member since 1985◦ Carolinas Chapter President 1995 & 1996◦ Served on National Board of Directors

Certified as a Specialist in Immigration & Nationality Law by NC State Bar since 1997

Member of Alliance of Business Immigration Lawyers (ABIL)

Presented by: Steven H. Garfinkel, Esq.

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B.A., Hollins College J.D., Stetson University Practicing Immigration & Visa Law since 1995 Certified as a Specialist in Immigration &

Nationality Law by NC State Bar American Immigration Lawyers Association

(AILA)◦ Member since 1995◦ Former Secretary, Treasurer, AILA Central

Florida Chapter; Former Treasurer, AILA Carolinas Chapter

Best Lawyers in America, 2013-2015 International Who’s Who of Corporate

Immigration Lawyers, 2012-2015

Jennifer L. Cory

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Introduction

Temporary Work Visas (including H-1B Visa)

◦ Types of Visas◦ H-1B Issues

“Green Card” Options, Process & Availability

Questions & Answers

Overview

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Department of Homeland Security comprised of:◦ US Citizenship & Immigration Services (“CIS”)◦ US Immigration & Customs Enforcement (“ICE”)◦ US Customs & Border Protection (“CBP”)

Department of State:◦ Responsible for visa services at U.S. consulates abroad

Department of Labor:◦ Administers Permanent Employment Certification

Application process

Federal Agencies Administering U.S. Immigration Law

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Two Visa Categories

Nonimmigrant – TemporaryImmigrant –

Permanent (Green Card)

Visa Categories

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Non-immigrant Visa Type

Sponsorship Required

Duration of Visa

Self Petition Work Permission Spousal Work Permission

H-1B Employer must sponsor and cover all associated fees

Up to 6 years (longer in some cases)

No Yes No

H-3 Trainee Employer must sponsor

Up to 2 years, no extension

No Employment only incidental to training, stipend

No

J-1 Exchange Visitor (Trainee/Intern)

Approved agency must sponsor

18 months (Trainee); 12 months (Intern)

No With DOS approval

Yes, with EAD

L-1A/L-1B Intracompany Transferee

Employer must sponsor

Up to 7 years (L-1A) or 5 years (L-1B)

No Yes Yes, with EAD

E-1/E-2 Treaty Trader/Investor

Employer must sponsor

Up to 5 years, renewable indefinitely

Yes- If owner of company

Yes Yes, with EAD

O-1 Extraordinary Ability

Employer must sponsor

Up to 3 years and extensions possible

No Yes No

TN- NAFTA Employer must sponsor

Up to 3 years and extensions possible

No Yes No

Nonimmigrant Overview

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B-1/B-2 (Visitor Visa/Visa Waiver)

F-1 (Student Visa)

H-3 & J-1 (Trainee Visas)

L-1 (Intracompany Transferee)

E-1/E-2 (Treaty Visas)*

O-1 (Extraordinary Ability)*

TN-1 (NAFTA Professional)*

H-1B (Professional)*

Common Nonimmigrant Visas

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Always employer-specific

May be position- & location-specific (depending on visa type)

Processing times for visa petition approval/visa issuance normally 90-120 days

Premium Processing Program - $1,225 secures 15-day adjudication/review

Employment-Based Nonimmigrant Visa

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Position offered must require at least a Bachelors degree

FN must possess degree (or equivalent) related to position offered

Visa is location & job specific

H-1B Visa - Overview

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Six (6) year limit (with exceptions) – granted in maximum of 3-year increments

Employer must file petition, agree to pay “required wage” & return transportation costs upon termination

FN in valid H-1B status may transfer & work for new employer upon filing of H-1B petition (portability)

H-1B Visa - Overview

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Since 1990, annual cap on number of H-1B petitions which may be approved

USCIS may only approve 65,000 visa petitions per fiscal year

Additional 20,000 visas authorized for those with U.S. Masters & Ph.D. degrees

H-1B Visa- Overview

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Filing period began April 1, 2014

On April 7, 2014, USCIS reached 65,000 H-1B petition cap AND 20,000 H-1B “advanced degree” cap

USCIS received approximately 172,500 total petitions

FY 2015 (10/1/14 – 9/30/15)

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Filing period begins April 1, 2015

Many expect cap to be reached in early April

Once cap is reached, no “cap subject” H-1B petitions accepted until April 1, 2016 (absent change in law)

FY 2016 (10/1/15 – 9/30/16)

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The following are subject to annual cap:◦ FNs seeking H status for 1st time◦ FNs changing from cap-exempt to cap-subject employer

The following are NOT subject to annual cap:◦ Petitions for FNs currently in H-1B status (i.e., extensions

or change of employers)◦ FNs who have been counted against H-1B cap within

past 6 years◦ FNs who work at institutions of higher education or

nonprofit related to/affiliated with institutions of higher education

H-1B Visa – Does Annual Cap Apply?

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Applies to F-1 students on OPT where H-1B petition accepted on or after April 1

Extends employment authorization from OPT end date (if after April 1 and before October 1) to H-1B effective date

Does not authorize travel

H-1B Visa – “Cap Gap” Rule

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E-1/E-2 - Treaty Trader/Treaty Investor

O-1 - Extraordinary Ability

TN - Treaty NAFTA

L-1 – Intracompany Transferee

Other Nonimmigrant Work Visas

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Five Ways to Qualify

Family Asylum Investment Diversity Lottery

Employment

Immigrant Visa Options

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Employment-Based Immigrant Visas (“Green Cards”)

•Priority WorkersEB-1•Advanced Degree Professionals and FNs of Exceptional AbilityEB-2•Professionals, Skilled and Unskilled WorkersEB-3•Special ImmigrantsEB-4•Employment CreationEB-5

Five (5) employment-based categories:

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International Managers & Executives

Outstanding Professors & Researchers*

FNs of Extraordinary Ability *

◦ *USCIS regulations contain list of eligibility criteria

EB-1 Priority Workers

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To qualify as “advanced degree professional”, FN must possess advanced degree & position must require advanced degree (or equivalent)

USCIS regulations set out criteria for exceptional ability

Can bypass labor certification process by proving employment would serve U.S. “National Interest”

EB-2 Advanced Degree Professionals & FNs of Exceptional Ability

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For FN who possesses 4-year university degree where job offered requires degree; or

For FN who possesses minimum of 2 years of experience in position requiring minimum of 2 years of experience

EB-3 Professional, Skilled and Unskilled Workers

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STEP 1 – Labor Certification (“PERM”)

◦ Requires proof of no minimally qualified available U.S. workers

◦ Current Processing times: 18 months if no DOL audit

◦ 12+ months if audited

EB “Green Card” Estimated Processing Times

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STEP 2 – Immigrant Petition, Form I-140◦ Current processing times: Six (6) months +

Step 3 – Application for Adjust Status, Form I-485** ◦ Current Processing times: Up to nine (9) months

** APPLICATION CANNOT BE FILED UNLESS PRIORITY DATE IS CURRENT

EB “Green Card” Estimated Processing Times (con’t)

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February 2015 Visa Availability (Except India & China Born)

• CURRENT1st

Preference

• CURRENT2nd

Preference

• January 1, 20143rd

Preference

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•CURRENT1st Preference

•September 1, 20052nd

Preference

•December 22, 20033rd

Preference

February 2015 Visa Availability for India Born

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• CURRENT1st Preference

• March 15, 20102nd Preference

• September 1, 20113rd Preference

February 2015Visa Availability for China Born

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Increase number of years STEM graduates can participate in OPT

Allow individuals whose 1st college degree is in STEM but 2nd degree is not to qualify for STEM OPT (e.g., MBAs with Bachelors in Engineering)

Expand STEM degree field list

Issue guidance to clarify ability of entrepreneurs, researchers, inventors & founders to quality for National Interest Waiver green card

Temporary injunction affects only expanded DACA & DAPA programs

President Obama’s Executive Action Proposals

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Uncertain in light of Executive Action

Comprehensive law would likely include

◦ Legal status for “undocumented”

◦ Employee verification system

◦ Changes to legal immigration

New Immigration Legislation?

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Questions & AnswersSteve.Garfinkel@garfinkelimmigration.com

6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com