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Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson

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Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson Basic Track Session 6: Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson Non‐Immigrant Visas/ Statuses Presented by Jay Gairson and Rachel Han Huneryager Note: Some visas require Petition Application DOL certification or SEVIS certification before Petition or Application USCIS DS‐160 Nonimmigrant Visa Process Approval Embassy Admin Revocation Approval Processing Waiver Denial Application Process February 14-15, 2019 Page 1 of 18 Basic Track Session 6: Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson Principal is present to do purpose of the visa (work, visit, study). NIV study: All principals except B, C, and D visas. B visa can do short‐term avocational or recreational courses. All derivatives except I visa. B children can do incidental study. F and M derivatives can only do PT study or avocation/recreational. F can transfer schools at any time; M can transfer in first 6 months. NIV work: General NIV Principal restricted to purpose of employment visa, except F for OPT/CPT. Limitations E, TN,F, M, and J do not require a petitioning employer. Derivatives: E and L can obtain EAD. H and other classifications can sometimes obtain EAD or work. Q and B visas do not have derivatives. See also https://www.ice.gov/doclib/sevis/pdf/Nonimmigrant%20Class%20Who%20Can%20Study. pdf and http://hr.gmu.edu/welcome/docs/WorkAuthorizationforNonImmigrants.pdf U.S. Consulate/Embassy Procedures can be found at the websites for the specific Consulate or Embassy. Click on Non‐immigrant Visas and find the one you are looking for. There is usually a separate section for E‐1/E‐2 Treaty Trader and Treaty Investor visas Department of State website also has procedures for non‐immigrant visas at https://travel.state.gov/content/travel/en/us‐visas/visa‐ information‐resources/all‐visa‐categories.html. Click on the specific non‐immigrant visa to get more information. The process for K‐1 visas are laid out at https://travel.state.gov/content/travel/en/us‐visas/immigrate/family‐ Visa Resources immigration/nonimmigrant‐visa‐for‐a‐fiance‐k‐1.html. • Visa Reciprocity Table lists the period of time each visa will be issued by country of citizenship. It also gives information on obtaining official documents such as birth certificates, marriage certificates, police certificates, etc. by country. See: https://travel.state.gov/content/travel/en/us‐visas/Visa‐Reciprocity‐ and‐Civil‐Documents‐by‐Country.html. • Directory of Visa Categories by Purpose of Travel: https://travel.state.gov/content/travel/en/us‐visas/visa‐information‐ resources/all‐visa‐categories.html February 14-15, 2019 Page 2 of 18 Basic Track Session 6: Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson Admin Processing has different causes: security checks, background checks, bona fide application checks, eligibility verification, petition verification, visa history check, and government holds. Communication is key: polite, firm, regular inquiries seeking Administrative answers to specific questions. Client counseling is necessary: build confidence to prevent rash Processing actions that undermine eligibility. Patience is a virtue, but too much patience can be detrimental to a case. Be prepared to escalate delays: inquire, congressional query, inquire again, analyze potential causes, litigate. H‐1B – Professional position in a specialty occupation L‐1A – Manager or executive for a qualifying organization (QO) NIV’s L‐1B – Specialized knowledge position for a QO commonly O‐1 –Person of extraordinary ability in field of expertise involving T –Victims of human trafficking attorneys U –Victims of crimes who have suffered substantial mental or physical abuse while in the U.S. K‐1/K‐3 –Fiancé(e) or spouse of a U.S. citizen February 14-15, 2019 Page 3 of 18 Basic Track Session 6: Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson H‐1B is one of the most commonly used nonimmigrant statuses. Dual intent: may work in H‐1B nonimmigrant status and meanwhile apply for permanent residency. Criteria U.S. employer must petition for a foreign national employee. The offered position must be professional, e.g., it must require at least a Bachelor’s degree, or equivalent, in a specific field, where “equivalent” can mean a foreign equivalent degree or 12 years of relevant work experience. See 8 CFR 214.2(h)(d). H‐1B The foreign national must meet the requirements for the position at the time of filing. U.S. employer must pay the foreign national the prevailing wage according to the work location. PRACTICE TIP: The employer can require a Bachelor’s degree or equivalent in multiple related fields of study (e.g., Bachelor’s degree in Computer Science, Information Technology, Engineering, or related field.) H‐1B status limited to 6 years Extension beyond 6 years if employment‐based permanent residency application has been started. If a PERM application has been filed more than one year prior to the end of the 6 year limit, then H‐1B status can be extended for one year. See AC 21. If an I‐140, Immigrant Petition has been approved, and there are no immigrant visa numbers available for the foreign national, H‐1B status can be extended for 3 years at a time. H‐1B Recapture of time Can request recapture of time spent outside the U.S. while in valid H‐1B status. All days outside the U.S. must be counted (departure and arrival dates do not count as days outside the U.S.). Must include evidence of the trips such as passport stamps, boarding passes, trip itineraries, etc. When approved, the 6‐year limit will become the later date after time spent outside the U.S. is recaptured. February 14-15, 2019 Page 4 of 18 Basic Track Session 6: Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson Cap/Lottery Cap to H‐1B visas at 65,000 per year for Bachelor’s degree, and 20,000 per year for U.S. Master’s degrees. H‐1B petitions are subject to the cap if the individual has not worked in the U.S. in H‐1B status for the previous 6 years. Government fiscal year begins on October 1. Can file H‐1B petitions up to 6 months prior to work start date. Cap season begins April 1 for October 1 work start date. USCIS accepts petitions for 5 business days starting April 1. If more H‐1B than allotted numbers are received, then conducts a random lottery, and will not accept any more H‐1B cap‐subject petitions for that fiscal year. Cap Gap Relief: Foreign Nationals in F‐1 status working with an EAD pursuant to OPT which expires before October 1, will have EADs extended to Sept. 30th. PRACTICE TIP: F‐1s in STEM OPT may file H‐1B petitions in next cap season if H‐1B petition is not chosen in current lottery. Procedure for Filing Must obtain a certified Labor Condition Application (LCA). See CFR636.700. LCA must list all work locations. If there is a change in work location to a different Metropolitan Statistical Area (MSA), must get a new LCA certified and file an amended petition. May request up to 3 years at a time. H‐1B Submit H‐1B petition to USCIS, including: Forms G‐28, I‐129, I‐129H, I‐129W Certified LCA Educational docs for foreign national (including educational evaluation if foreign degree) Passport, I‐94 document, and previous NIV docs PRACTICE TIP: Draft LCA for start date earlier than October 1, so that it can be filed before April 1 for cap season filing. February 14-15, 2019 Page 5 of 18 Basic Track Session 6: Non-Immigrant Visas 2019 NW Regional Immigration Law Conference Rachel Han Huneryager & Jay Gairson Procedure for filing continued: Letter from U.S. petitioner describing the position, offered salary, and the foreign national’s qualifications Info about U.S. employer Duplicate copy of petition should be submitted with petition so that it can be sent to Kentucky Consular Center (KCC) in case the foreign national needs to apply for an H‐1B visa abroad. If no duplicate copy is submitted, must submit I‐824 petition to USCIS for duplicate copy to be sent to KCC before the foreign national can apply for an H‐1B visa. H‐1B Portability: • May file petition with USCIS at any time when foreign national wishes to change employers. H‐1B • Not subject to cap. • Foreign national may begin working for new employer as soon as H‐1B petition has been filed with USCIS. • Procedure for filing: similar to H‐1B cap filing. Period of Admission • May be admitted for period of stay requested not to exceed 3 years on initial petition. • May extend H‐1B status for 3 years. PRACTICE TIP: Create a checklist to make sure that you don’t forget any documents. If you forget to include some forms or documents, the whole petition may be sent back to you and you may miss the lottery. Dual intent: may work in L‐1A nonimmigrant status and meanwhile apply for permanent residency. L‐1A Criteria Intracompany Qualifying organization must petition for employee. A qualifying organization may be a parent company, branch office, Transferee subsidiary, or affiliate company. Executive or Employee must have worked in a managerial or executive capacity for a qualifying organization abroad for at least one continuous Manager year in the 3 years immediately preceding the filing of the petition for L‐1A status. Employee must be coming to the U.S. to work in a managerial or executive capacity in L‐1A status.
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