It's H-1B Season...

The law permits employers to submit 85,000 cap-subject H-1B petitions for foreign-born professional employees each fiscal year. This year, the USCIS will start accepting H-1B petitions subject to the numerical cap starting on Monday, April 2 for workers who will be authorized to start their jobs at the beginning for the government’s 2013 fiscal year, which starts on October 1, 2012. Of these 85,000 H-1Bs, 20,000 are reserved for persons in possession of an advanced degree from a university in the U.S. Last year the 20,000 cap was reached on October 28 while the 65,000 cap was reached less than one month later on November 22.

Are You Exempt from the H-1B Cap?
The demand for qualified H-1B professionals remains high, and it is all but certain that H-1B numbers will be exhausted long before the end of the year. Only cap-exempt employers are permitted to hire H-1B professionals all year long.

In addition to the cap exemption afforded to certain employers, some H-1B professionals are exempt from the cap. These are:

- Previous and current H-1B holders who have been counted towards the cap
during the past six years, and;

- J-1 nonimmigrant physicians who have received 2-year home residency requirement waivers.

The H-1B "CAP-GAP" and the F-1 Student

The cap of 65,000 H-1B petitions for FY2011 has been reached. As a result, one must wait to apply for H-1B status under the new quota for FY2012, starting October 1, 2011. The earliest an H-1B petition can be filed for the new fiscal year is April 1, 2011, requesting an October 1st start date. For certain F-1 students, this interim period creates what is termed the “cap gap” as their status may lapse before their H-1B status can commence on October 1st. Current regulations provide relief to students by allowing an extension of F-1 status and work authorization for those students who are the beneficiaries of a pending or approved H-1B petition.

Upon the submission of a timely filed H-1B petition, the automatic cap gap extension will apply and the F-1 student will continue to maintain valid duration of status until the effective date of the H-1B approved status. Individuals under post-completion OPT at the time of filing will also receive extended work authorization through September 30th under the cap gap provisions. F-1 students with H-1B petitions that remain pending beyond October 1st are allowed to legally remain in the U.S. but their work authorization will cease. Please note that students who are within the 60 day grace period and have already completed their OPT by the April 1st filing date will also benefit from the automatic extension of their duration of status, but will not receive extension of their work authorization. For example, F-1 students whose OPT expires in February 2011 will qualify for an extension of their F-1 status while their H-1B petition is pending, but will not qualify for an extension of their work authorization as their OPT will have expired prior to April 1, 2011. However, F-1 students whose OPT is valid until July 2011 will qualify for both an extension of their F-1 status and extension of their work authorization until September 30, 2011.

For more information on filing a timely H-1B petition on April 1st and qualifying for F-1 extension of status and work authorization under the “cap gap,” please contact our offices at:

Law Office of Amanda R. Goodman
1133 Broadway, Suite 706
New York, New York 10010
Phone: 516-647-5937

Demystifying Options for Student-Artists

For students working in the arts, whether as performers, musicians, visual artists or technical personnel, the progression of immigration options from your F-1 status can be riddled with complexities. Of course it is not possible to describe each option in detail; consider this a primer.

The O-1 Visa

The O-1 is a nonimmigrant visa category designated for individuals who have extraordinary ability in their field. As applied to artists however, USCIS has made specific designation on a lower standard, requiring only “distinction” in the field. AS a practical matter, showing “distinction” requires proof that the individual has achieved a level of skill and recognition, which can be judge on a national or international scale. Accordingly, a strong O-1 petition will include, but is not limited to the following evidence: performing in a leading or critical role in a production with a distinguished reputation in the field; recognition of achievements through reviews, references, press and other media attention; commercial success or recognition; receipt of awards for the work performed, and other similar documentary proofs.

Because the O-1 is a sponsored petition, the petitioner must be an employer, organization or agent. An individual may not petition for an O-1 independently. In the arts, unlike many other fields, the employer permutations present a distinct advantage. The O-1 candidate can create an agent relationship for sponsorship, enabling them to take on work from a wide variety of sources through this agent. Unlike the H-1B, the structure of the O-1 often suits the arts, namely in cases where a long-term or fixed employer is not feasible.

Initially, an O-1 may be granted for the length of the event or agent relationship, not to exceed three years (Please note: in practice, O-1 agent relationships are contracted to accord with the three year cap rather than on an event-by-event basis). The event may be a tour, performance, contract, or residency program, to name only a few examples. Some of the additional benefits of the O-1 include: (1) the ability to extend the visa in one year increments without a limit on the number of years in O-1 visa status; (2) there is no home residency requirement for the O-1; and (3) O-1 holders can seek permanent residence without jeopardizing their underlying O-1.

When the O-1 isn’t right, try the P.

There are three P sub-categories designated specifically to individuals in the arts.

P-1: National or International Entertainment Groups

P-2: Reciprocal Exchange Programs

P-2: Culturally Unique performance and teaching

As with the O-1 the petitioner must be an employer, organization or agent. The P visas are granted on an event or performance basis, not to exceed one year, but permit unlimited one-year extensions. Again, the definition of an “event” here is flexible and can encompass an entire season of performances. However, unlike the O, the P carries a foreign residence requirement subject to scrutiny on the grounds of fraud.

Taking the Next Step.

Individuals who have achieved a high level of success may self-petition for permanent residence in the Extraordinary Ability category. However, in this standard, there is no distinction in the standard carved out especially for artists. Strong petitions in this category show that the applicant is among the most elite and specialized in their particular field, and that they have received national or international acclaim for their work. While the evidentiary standard here is nearly identical to the O-1, petitions for permanent residency receive stronger scrutiny.

Non-Immigrant Visa Fees Increase

The Department of State has increased the fees for non-immigrant visas as of June 4th, 2010. The interim final rule announcing this fee increase is open for public comment for 60 days. After considering public comment, the Department will publish a final rule.

The new fees are as follows:

• $140 for applications that are not petition based, including B-1/B-2 tourist and business visitor visas, border crossing cards, and F, M and J student and exchange visitor visas;
• $150 for petition-based visas, including H, L, O, P, Q and R work-authorized visas;
• $350 for K fiancé(e) visas; and
• $390 for E treaty trader/investor visas.

Where the Department of State increases fees, this applies to non-immigrant visas with consular processing only!

Congratulations Graduates!

Many foreign students in the United States have just graduated and more are on their way! In a report for the State Department the Executive Vice President of the Institute for International Education stated, in reference to both China and India, “I think we’re going to be seeing 100,000 students from each for years to come with an increasing share of them being undergraduates.” In fact, the number of international students at colleges and universities in the United States last year increased by 8% - with more than 617,000!

The most common foreign student approach is:

F-1 à OPT à H-1B à Labor Certification.

The F-1 visa is the most common education study visa and in many cases, upon the completion of a full-time program, foreign students will be able to remain in the United States to pursue “optional practical training” (OPT) which is a limited work authorization directly related to their field of study. Generally, a student in valid F-1 status may be authorized for 12 months of OPT and in some cases, an additional 17-month extension.

After OPT, many foreign nationals are sponsored by their OPT employers for an H-1B or are able to secure sponsorship for the same, through another employer. The clearest advantages of the H-1B is that it applies to a “specialty worker,” a classification held by a post-OPT professional and it carries dual intent – seemingly a perfect fit! However, the following considerations must be made.

First, The H-1B requires that the focal point of study coordinate with the function and purpose of the H-1B employment. This creates a gray area for individuals with liberal arts degrees or innate talents. For instance, an economics major with OPT experience at UBS is more eligible for a H1-B job as a financial analyst, than an English major who is considered a finance whiz. Despite innate talents that perhaps exceed paper credentials, the course of study must accord with the H1-B employment.

Second, it is also important to consider the fees associated with the H1-B petition as well as the restrictions and limitations on its issue. USCIS permits 58,000 “new” H1-B visas, which is referred to as the “cap.” Once you have received an H-1B under the cap, subsequent extensions are not counted toward the cap. This means that initial H1-B applicants must be mindful and prepared to file their petitions at the most advantageous time, unless they are working for a “cap-exempt” employer such as a non-profit or higher education institution. This requires preparation and foresight.

Finally, the fees associated with the H1-B are an increasing concern for employers, which makes securing a sponsor increasingly difficult. Private employers are required to pay a $1,500 training fee, $500 fraud prevention fee, and a filing fee of $190. In addition, the employer must go through a great deal of administrative work as well as make many legally enforceable “attestations” in order to sponsor an H1-B employee.

Once you overcome the above-mentioned hurdles and begin working for your H1-B employer you may begin the permanent residency process. Permanent residency applications seem overwhelming but can actually be broken down into four simple categories: (1) Employer Sponsor, (2) Family Sponsor, (3) Special Congressional Programs, and (4) Asylum. For the purpose of this article, only the general concept of employer-sponsored residency will be considered.

Once you are an H1-B worker, an employer may sponsor you for permanent residence. This application requires that the employer show that after an advertising campaign and genuine search of the labor market, they could not find a qualified U.S. employee for the position. This is tricky – if a qualified U.S. citizen applies and is able to fill the needs of the position, then a labor certification cannot be granted. In some cases though, the labor certification process can be waived entirely. This pertains to high-level researchers conducting work that benefits the national interest. Equally, there are categories for “extraordinary” or “exceptional” ability and are applicable to most fields of work. These petitions also by-pass the labor certification requirement.

Graduating students should always be mindful of the following:

(1) Even a small violation of the immigration laws can cause significant problems in the future. Be sure to maintain a complete and accurate record of your immigration history.

(2) Each time you leave the United States your re-entry is viewed as an application for re-admission. Be sure to carry copies of all required documents.

(3) Your employer’s lawyer works for your employer, not you. Be sure to consult an attorney practicing exclusively in immigration in order to optimize your interests.

(4) Visas issued abroad are regulated by the State Department whereas visas issued in the United States are controlled by CIS. Be sure to consider the intricacies of consular processing.

STARVING for a DREAM and Basic Information about the DREAM ACT

“The youth are urging Senator Schumer to move the DREAM Act forward in the Senate as a standalone bill” (New York State Youth Leadership Council). As part of this effort, a group of immigrant youth from the New York State Youth Leadership Council began a hunger strike on June 1, 2010, in front of Senator Charles Schumer’s New York City Office. Whether you believe in comprehensive immigration reform or the DREAM Act as a stand-alone bill, students like Gabriel Martinez, deserve your support! Each year, more than 75,000 students are negatively impacted by congressional in-action on the DREAM Act.

What is the DREAM Act?

The Development, Relief and Education of Alien Minors (DREAM Act) is legislation that allows undocumented youth to enlist in the U.S. Army or attend a U.S. undergraduate program, an opportunity which forges a path to citizenship that otherwise did not exist. Support for the DREAM Act stems from the idea that fostering these opportunities for undocumented youth will lead to productive contributions back to the country. It is a simple proposition – invest in the undocumented youth now, in anticipation of the future return.

Who Qualifies?

Under the current DREAM Act, you must: (1) Have entered into the United States at least one day before your 16th birthday; (2) Been present in the United States for five (5) continuous years before the date of enactment; (3) Graduated from a United States high school, obtained a GED or have been accepted into a college/university program; (4) Currently be between the ages of 12 and 35; and (5) Show good moral character (e.g. law-abiding).

Once the DREAM Act passes and you have met each of the above requirements you will be eligible to apply for the DREAM Act (the technical process is still to be announced) and upon approval be granted conditional permanent residency as long as you:

Enroll in an academic institution to earn a bachelor’s degree or higher degree
OR
Enlist in one of the branches of the U.S. Military

What is Conditional Permanent Residency? Conditional Permanent Residency is similar to Legal Permanent Residency (LPR) in that you would be entitled to the majority of LPR benefits. Approved applicants could work, drive and travel (365 day limit). In fact, you would even be eligible for student loans and federal work study programming, but not federal financial aid.

I have applied, been approved and enrolled in an academic institution to earn a bachelor’s degree or higher degree or enlisted in one of the branches of the U.S. Military. What happens next? Within 6 years of approval for conditional permanent residency, you must have completed at least two (2) years of academic learning toward your bachelor or higher degree or So long as you stay within the boundaries of these requirements you may apply for Legal Permanent Residency after 5½ of the 6 years have passed. Transitioning from conditional permanent resident to legal permanent resident allows you to apply for U.S. Citizenship. Keep in mind, all candidates must show 5½ years of conditional permanent residency before applying for Legal Permanent Residency.

Please see the full text of the DREAM Act legislation.