Graves&Graves Presentation Spring 2020

VISA ALTERNATIVES FOR INTERNATIONAL STUDENTS AND PROFESSORS Rice University February 5, 2020 Presented by

Silvia Graves, Esq. Graves & Graves, P.C. 5599 San Felipe St. Suite 500 Houston, Texas 77056 (713) 784-9204

A. INTRODUCTION A. NONIMMIGRANT CLASSIFICATIONS 1. H1B Workers - Professionals Working in Specialty Occupations 2. O1 – Persons of Extraordinary Ability 3. L1A/L1B - Executives, Managers and Specialized Knowledge Workers 4. TN - Mexican and Canadian Professional Workers 5. E1/E2 – Treaty Traders and Nonimmigrant Investors

C. IMMIGRANT CLASSIFICATIONS – EMPLOYMENT BASED 1. PERSONS OF EXTRAORDINARY ABILITY 2. OUTSTANDING RESEARCHERS OR PROFESSORS 3. MULTINATIONAL EXECUTIVES OR MANAGERS 4. ADVANCED DEGREE PROFESSIONS OR INDIVIDUALS OF EXCEPTIONAL ABILITY WHOSE WORK IS IN THE NATIONAL INTEREST 5. PERM PROCESS 6. IMMIGRANT INVESTORS – EB5

DISCUSSION OF NONIMMIGRANT CLASSIFICATIONS H1B PETITION - Cap •

65,000 H1B petitions per fiscal year from October 1, to September 30 of the following year

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6,800 are allocated for nationals of Singapore and Chile based on a free trade agreement between the United States and those countries leaving only 58,200 H1Bs per fiscal year

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20,000 additional H1B petitions for beneficiaries who have completed a master’s degree in the United States

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A total of 78,200 H1B petitions per year to be approved

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New pre-registration process from March 1 to March 20, 2020

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H1B Filing April 1-5 – may change after pre-registration new process

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Earliest validity October 1

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Cap affects new H1B petitions not extensions

H1B CAP REQUIREMENTS • Position must be a “specialty occupation” that requires a Bachelor’s degree or higher degree in a specific specialty or • Its equivalent as a minimum educational requirement for the position • State license if applicable • The degree is common to the industry in similar positions and similar organizations or the particular position is so complex or unique that it can be performed only by an individual with a degree • Employer normally requires a degree or its equivalent for the position

EXEMPTIONS TO THE CAP • Employer is: • An institution of higher education • Nonprofit organization or entity related to or affiliated with an institution of higher education • Nonprofit research organization or • Governmental research organization

PETITIONS NOT SUBJECT TO THE CAP

• Petitions for extension of H1B status • Petitions for concurrent H1B employment • Spouses and children of H1B workers

VALIDITY AND EXTENSIONS • This is a nonimmigrant, temporary position, not a permanent petition • Initial validity up to 3 years • H1B may be for full or part-time employment • Beneficiary may work for two concurrent employers • Renewals for up to 3 years, a total of 6 years • Beneficiary may extend beyond the 6 years in the U.S. if he has spent time outside of the country that can be recaptured • If a PERM is filed on or before the 5th anniversary of the H1B, the USCIS will grant extension of the H1B in increments of one year • If a PERM and an immigrant petition is approved, the H1B may be extended beyond the six-year validity period until the adjustment of status to permanent residence application is approved

CHANGE OF EMPLOYERS • An H1B worker may port or change employers if: • The filing fee for the second H1B has been received by the USCIS • The H1B worker is in lawful status at the time of filing the second H1B petition, and • The worker has not engaged in unauthorized employment since his last lawful admission

TRAVEL FOR NONIMMIGRANTS • Automatic Visa Revalidation • Risks of applying for visas abroad • Presidential Proclamations • BAHA Executive Order • Administrative Processing

O-1 VISA • O-1 Extraordinary Ability Visa (Science, Education, Business, Athletics) requirements: • Must demonstrate “sustained national or international acclaim and recognition for achievements” • Must show that has risen to the top of the field

O-1 VISA (Cont.)

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Sustained Acclaim demonstrated by: • Evidence of a one-time achievement = major internationally recognized award; or • Evidence of at least 3 regulatory criteria including: • National or international awards • Membership in associations in the field that require outstanding achievements • Published material about beneficiary • Participation as a judge of the work of others • Original scientific, scholarly, artistic, athletic or businessrelated contributions of major significance • Authorship of scholarly articles in professional journals or major media • Employment in a critical/essential capacity for organizations with distinguished reputation • High salary or remuneration for services • Other comparable evidence

O-1 VISA (Cont.)

• Suggested evidence in support of petition • Confirmation of achievements (1st authored articles/presentations; citations; book chapters/review articles; peer review or editorial duties, awards, memberships, etc. ) • Reference letters • Sponsor can be an employer or agent • Length of Visa • 3 years • 1-year extensions • Can extend indefinitely

L1A and L1B VISAS FOR EXECUTIVES, MANAGERS, AND SPECIALIZED KNOWLEDGE EMPLOYEES ELIGIBILITY This is a classification for multinational companies that have a foreign company and a U.S. company and wish to transfer executives or managers to the United States OR, foreign companies that do not have a company in the U.S. and want to open a company in the U.S., open new markets and send executive or managerial personnel.

L1A and L1B VISAS FOR EXECUTIVES, MANAGERS, AND SPECIALIZED KNOWLEDGE EMPLOYEES (Continuation) REQUIREMENTS • Executive, manager or employee with specialized knowledge • Must have worked in the foreign company for at least one continuous year, within the three years prior to admission to the United States as an executive, manager or specialized knowledge employee • The U.S. Company and the foreign company must be qualifying organizations. The U.S. Company must be a subsidiary, a parent, an affiliate or a branch of the foreign company.

L1A and L1B VISAS FOR EXECUTIVES, MANAGERS, AND SPECIALIZED KNOWLEDGE EMPLOYEES (Continuation) 1. Manager (L1A) a. Must manage the organization, a department or function of the organization b. Supervise and control the work of other professional or supervisory or managerial workers c. Has authority to hire and fire employees d. Exercises discretion over the day to day operations (A first level supervisor does not qualify as a Manager

L1A and L1B VISAS FOR EXECUTIVES, MANAGERS, AND SPECIALIZED KNOWLEDGE EMPLOYEES (Continuation) 2. Executive (L1A) a. Directs the management of the organization or a major component or function of the organization a. Establishes goals and objectives of the organization b. Exercises wide latitude in discretionary decision-making a. Receives only general supervision or direction from higher level executives, board of directors or stockholders

3. Specialized Knowledge (L1B) a. The individual must possess special or advanced knowledge or the company’s product, service, research, equipment, techniques, management, processes or procedures.

L1A and L1B VISAS FOR EXECUTIVES, MANAGERS, AND SPECIALIZED KNOWLEDGE EMPLOYEES (Continuation) IS A PERSON IN L STATUS ELIGIBLE TO APPLY FOR A GREEN CARD? 1. L1A - Yes. PERM Exempt, provided both corporations are still doing business, have full time management and other employees, pay taxes and are solvent corporations.

2. L1B - Yes, but the applicant is not PERM exempt – Unless he worked as a manager with the foreign company, one year within the three years preceding admission, then a reclassification may be sought and if approved, then the immigrant petition and adjustment may be possible without the PERM 3. Spouses are eligible for work authorization and may derive the permanent resident status from the principal beneficiary 4. MAXIMUM VALIDITY – L1A – Up to 7 years and L1B Up to 5 years

TN CLASSIFICATION •

Canadians and Mexicans coming to the U.S. to work in a profession listed under North America Free Trade Agreement (NAFTA)

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Applicant must meet required qualifications as noted on the NAFTA schedule

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Most positions require a Bachelor’s degree

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Nonimmigrant intent

Canadians • Apply at the border (non-national dependents must obtain visa at U.S. Consulate) • Time to Process – immediate at the border within CBP office hours • Admission Validity – up to three years, renewable indefinitely at port of entry

TN CLASSIFICATION (Continuation) Mexicans •

Apply at the U.S. Embassy or Consulates abroad

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May Change or Extend Status with USCIS •

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Time to Process – 2 to 4 months regular processing, or 2 weeks premium processing

Visa Validity – based on Reciprocity, may obtain a one (1) year visa but at port of entry CBP may grant up to 3 years admission GENERAL INFORMATION

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Extensions and changes of status are valid up to three years

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NO PREVAILING WAGE REQUIREMENT OR ATTESTATIONS TO BE MADE BY THE EMPLOYER TO THE DEPARTMENT OF LABOR

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May apply for permanent residency based on PERM labor certification application

E1 TREATY TRADER / E2 INVESTOR VISAS • Existence of treaty country: http://www.travel.state.gov./ visa • Nationality of the Treaty Country • Substantial Trade or Substantial Investment • Coming to work in a “Qualifying Capacity” • Intent to Return • Visa Validity is based on reciprocity • Indefinite extensions of status • Spouses are eligible to work – with EAD

E1 TREATY TRADER / E2 INVESTOR VISAS (Continuation) A. Treaty Traders (E-1) • Trade: Exchange, purchase, or sale of goods, services or technology • “Substantial” import or export • No minimum dollar threshold • Volume of Trade vs. Value • Majority of trade between U.S. and treaty country • Trade must be in existence • Can be manager, supervisor or “essential skill” employee

E1 TREATY TRADER / E2 INVESTOR VISAS (Continuation) B. Treaty Investors (E-2)

• U.S. Investment must be in a Real Operating Enterprise A paper corporation?

• Investment must be “Substantial” • At Risk - irrevocable commitment - bank loan? US Business used as collateral?

• Legitimate Sources - Requirement that Investment not be Marginal • Applicant must have control of the U.S. enterprise. Could there be more than one investor?

• Position to “develop and direct” the enterprise • Visa applicant can be • Investor or • Manager, supervisor or essential employee

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS 1. EMPLOYMENT BASED CLASSIFICATIONS THAT DO NOT REQUIRE PERM LABOR CERTIFICATION A.Persons of Extraordinary Ability B.Outstanding Researchers or Professors C.Multinational Executives or Managers (L1A) D.Advanced Degree Professions or Individuals of Exceptional Ability whose work is in the National Interest E. Special Immigrants (Religious workers) F. Investors and Entrepreneurs

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS A. Persons of Extraordinary Ability • Available to individuals of extraordinary ability in science, arts, education, business or athletics • Continue work in the area of extraordinary ability • Entry will substantially benefit prospectively the United States • No employer needed • Must demonstrate “..sustained national or international acclaim” – “small percentage at the top of the endeavor”

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS A. Persons of Extraordinary Ability (Cont.)

• Evidence must include:

• A one-time achievement such as an internationally recognized award or documentation of 3 of the following requirements: 8 CFR 204.5(h) • Receipt of lesser nationally or internationally recognized prizes or awards • Membership in associations that require outstanding achievement • Published materials about the person in professional publications or other major media • Participation as a judge of the work of others • Original, scientific, scholastic, artistic, athletic or business-related contributions of major significance • Authorship of scholarly articles in the field • Artistic exhibitions or showcases • Performance in a leading or critical role for organizations with distinguished reputations • High salary or remuneration in relation to others in the field • Commercial success in the performing arts

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS A. Persons of Extraordinary Ability (Cont.) • In practice more than three of the 10 requirements must be filed as the USCIS makes a final merits determination based on all the evidence to determine whether the individual is at a level of expertise that indicates the individual is one of that small percentage of people who have risen to the top of her field and has sustained national or international acclaim. • Timeline: 12-14 months

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS B. OUTSTANDING RESEARCHERS OR PROFESSORS (EB1-2) • Recognized internationally as outstanding in a specific academic field • Has 3 years of experience in teaching or research in the academic area (Experience in teaching and research while working on advanced degree may be counted if degree is acquired, person had full responsibility for the class taught or the research has been recognized as outstanding in the academic field)

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS B. OUTSTANDING RESEARCHERS OR PROFESSORS (EB1-2) (Cont.)

Seeks entry for: • a tenure or tenure track teaching position within a university or institution of higher education (Permanent offer or offer of indefinite or unlimited duration with expectation of continued employment) • a comparable position at university or institute of higher education to conduct research or • a comparable position to conduct research with private employer if it employs at least 3 full-time researchers and the departmental, division or institution has achieved documented accomplishments in an academic field. Research will not include engineering or product design because such activity is the “technological application of existing research.”

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS B. OUTSTANDING RESEARCHERS OR PROFESSORS (EB1-2) (Cont.)

1. Evidence - Must include at least two (2) of the following requirements: • Receipt of major prizes or awards for outstanding achievement • Membership in an association which requires outstanding achievement • Published material in professional publications written by others about the applicant’s work • Person’s participation as a judge of the work of others • Original scientific research • Authorship of scholarly books or articles in the field 2. Priority Date is established on the date the immigrant petition is filed 3. Timeline: 6 – 8 months

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS C. Multinational Executives and Managers (EB1-3) •

Employed abroad for 1 year (in the 3 years prior to admission) in a Managerial or Executive capacity by an affiliate, branch, or subsidiary of the US employer

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Offer of permanent employment must be for a Managerial or Executive position

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US company must be doing business for 1 year

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Foreign company related to the US company must continue to exist

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No Labor Certification, but a job offer by the US employer is required

Adjustment of Status to Permanent Resident Applications cannot be filed unless visas are available

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS D. Advanced Degree Professionals or Individuals Whose Work is in the National Interest (EB2) 1. Members of the Professions Holding an Advanced degree or its Equivalent – Master’s degree or Bachelor’s and 5 years of progressive work experience, OR 2. Persons of Exceptional Ability • Persons who because of their exceptional ability in the sciences, arts or business will substantially benefit prospectively the national economy, cultural or educational interests or welfare in the U.S. and whose services are sought by a U.S. employer. The degree of expertise must be significantly above that ordinarily encountered in the sciences, arts or business

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS D. Advanced Degree Professionals or Individuals Whose Work is in the National Interest (EB2) (Cont.)

• Proof of exceptional ability. Any 3 of the following: • • • • • •

Degree relating to area of exceptional ability Letter from former or current employer showing at least 10 years of experience License to practice profession Commands salary or remuneration demonstrating exceptional ability Membership in a professional association Recognition of achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations • Formal recognitions in the form or certificates with claimed contributions and achievements may be included in addition to above

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS D. Advanced Degree Professionals or Individuals Whose Work is in the National Interest (EB2) (Cont.)

• Criteria: • Person seeks employment in an area of substantial intrinsic merit • The benefit will be national in scope • The national interest would be adversely affected if a labor certification were required • Factors Considered • Improving the U.S. economy • Improving wages and working conditions of U.S. Workers • Improving education and programs for U.S. children and underqualified U.S. workers • Improving health care • Providing more affordable housing • Improving the U.S. environment • Making more productive use of natural • resources • Interested government agency request

IMMIGRANT - EMPLOYMENT BASED CLASSIFICATIONS (Continuation) 2.EMPLOYMENT BASED CLASSIFICATIONS THAT REQUIRE PERM LABOR CERTIFICATIONS A. L1B B. H1B C. TN D. Beneficiaries working abroad

PERM PROCESS WITH U.S. DEPARTMENT OF LABOR (DOL) A. PERM Labor Certification B. Immigrant Petition C. Adjustment of Status Application or Immigrant Visa Process

PROCESS WITH U.S. DEPARTMENT OF LABOR (DOL) 1. Prevailing Wage Determination •

Requirements

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Time to obtain determination from the Department of Labor

2. Advertisement and Recruitment Report before submission of labor certification with the DOL 3. Processing times •

Approximately four (4) to six (6) months after filing with the DOL

4. Audits Processing Times •

May take an additional four (4) to six (6) months

IMMIGRANT PETITION WITH USCIS • Requires approval of PERM Application by the DOL • Priority Date – Established when the PERM Labor Certification is filed

• Processing Times – Approximately eight (8) months

• Effect of Termination of Employment

ADJUSTMENT OF STATUS WITH USCIS • New USCIS Policies on travel during the time the adjustment of status application is pending • Processing Times – Approximately one (1) year but delays may increase • Effect of Termination • H or L visa holders may travel without abandoning application for permanent residency • Employment authorization extends upon filing of EAD renewal application

Visa Bulletin – February 2020

A. Final Action Dates for Family-Base Preference Cases

Visa Bulletin – February 2020

B. Dates for Filing of Family-Base Visa Applications

Visa Bulletin – February 2020

A. Final Action Dates for Employment-Base Preference Cases

Visa Bulletin – February 2020

B. Dates for Filing of Employment-Base Visa Applications

Questions