Professional Visa Options

for International Students

& Scholars

21700 Oxnard Street, Suite 860, Woodland Hills, CA 91367 T 818.435.3500 F 818.435.3535 Info@sostrin.com www.sostrin.com
 Overview

•Recent policy updates

•Temporary & Permanent Visas for
Professionals
•Immigration planning tips
•Q & A
 Recent Updates
• Immigrant Visa Ban (10014)– rescinded by Biden (Feb. 24, 2021)
• Nonimmigrant Visa Ban (10052) – expired (March 31, 2021)
• COVID Travel Restrictions / New NIE Standards – ended Oct. 25,
2021)
• Brazil, Schengen/UK/Ireland, China, South Africa, Canada-Mexico & India
• Public Charge Rule – removed
• H-1B & DOL Wage Rules – defeated in court (2020)
• Master’s degree - “Always” - Level 1 raised to 45 percentile Wage Rule
• H-1B Third-Party Placement – liberalized 2020
• "hire, pay, fire, supervise or otherwise control the work of the employee"
• “Deference” is back! - reinstated 2021
• Critical in Adjudication of Extensions
• Same underlying facts, petitioner & beneficiary
 General
• All non-U.S. citizens and non-permanent residents require
a visa to enter the U.S.
• Employer may sponsor an employee for nonimmigrant
visa to authorize work
• Nonimmigrant visas are valid for temporary period
(“work visas”)
• Employer may sponsor an employee for permanent
residence (“green card”)
Why Hire International Staff?
• International life and work experience
• Multi-lingual communication skills
• Understanding of global cultures, markets, and business
practices
• Ability to work internationally
• Fresh perspectives and new problem-solving skills
• Diversity in the workplace
 Nonimmigrant Visas
• H-1B
• TN-1/TN-2
• E-3
• H-1B1
• L-1A/B
• E-2
• B-1/B-2
 H-1B Visas
H-1B Specialty Occupation Visa requirements:
– Must hold bachelor’s degree or foreign equivalent in a specific specialty
(e.g., Biology, Engineering, Accounting, Economics, Mathematics, etc.)
– Job must require at least bachelor’s degree in specialized field to
perform the duties of the position (E.g., Engineer, Computer Scientist,
Software Engineer, Graphic Designer, etc.)
• “Specialty occupation” – requires theoretical and practical application of a
body of specialized knowledge and attainment of a bachelor’s or higher
degree in the specific specialty as a minimum for entry into the occupation
• Employer-specific; part-time or full time; 6 year maximum; granted in 3
year increments; at-will employment
• Employer must file Labor Condition Application (LCA) to confirm that it
will pay required wages
 H-1B Visas - Lottery
– Two Phases:
– Registration: March
– Petition Filing: April 1- June 30
– 2nd Round: August – November
– 3rd Round: November – February
– 65,000 visas for Bachelor’s degree graduates;
– 20,000 visas for US Master’s or higher degree
graduates;
– Planning & Timing: “March Madness”?
 H-1B Visas – Lottery
H-1B “Cap-Gap” Provision
• Extends status and/or employment authorization (OPT or STEM)
• Applies to F-1 students;
• Must timely file H-1B petition during cap acceptance period
– Timely - D/S or 60 day grace period.
• If selected, F-1 status and OPT/STEM extend to September 30.
• If denied/rejected, must leave the U.S., re-enroll in school, or file a
change of status within 60 days from date of notification.
 H-1B Visas
• Validity period of H-1B visa:
– 3 years, plus 3-year extension (total 6 years)
– May extend beyond 6-year maximum if:
• Green card started more than 1 year before H-1B
expiration (will get 1-year extensions)
• Immigrant visa (I-140) approved, but employee may not
file adjustment application (I-485) because subject to
visa retrogression (will get 3-year extensions)
• Spouse/children: H-4 visa (no work
authorization, except if certain I-140s approved)
 H-1B Visas – Exempt
Employers
• Entities NOT subject to H-1B cap:
– Institutions of higher education (universities,
colleges, or other degree-granting entities)
• Must be public & non-profit
– Non-profit organizations affiliated with
institutions of higher education (must have
affiliation agreement)
– Non-profit research organizations
– Government research organizations
 H-1B Visas
• Employer’s responsibilities:
– Pay all H-1B expenses, including attorney and
filing fees (including optional premium
processing fee, if “business expense”)
– Pay required wage (“prevailing wage”) - you can find
this at: http://www.flcdatacenter.com
– Must offer same benefits as to U.S. workers
– If H-1B worker terminated, must notify USCIS & pay
for return transportation home (if worker returns
home)
 H-1B Visas
• Employer-specific visa (must work for sponsoring
employer only) – fraud investigations/audits.
• May work for multiple employers (need concurrent
petitions)
• May work full-time or part-time
• May transfer to another employer if transfer petition is
filed
• Material changes to employment (salary, duties,
location, hours) may require amended petition
 H-1B Visas - Fees
• H-1B USCIS filing fees:
– $460 – USCIS petition fee
– $500 – USCIS fraud prevention/detection fee
– $1,500 – USCIS ACWIA/Training fee:
• Cap-subject employers only
• $1,500 for employers with 26 or more employees
• $750 for employers with 25 or fewer employees
– $2,500 – USCIS Premium Processing Fee
• Optional – decision in 2 weeks vs. 6-8 months
 H-1B Visa – Long-Term
Planning
• If reached 6-year H-1B maximum:
– Recapture time spent abroad (keep travel records);
– Request 7th-year extension if green card timely filed
– Qualify for another nonimmigrant visa
– Go abroad for 1 year (to re-start 6-year clock)
• Because of 6-year limit, must start long-term
planning early (but no later than in 5th year)
The H-1B Cap has been met, now
what?

Alternatives to H-1B visas…

 TN Visas
• TN (Trade NAFTA - USMCA) Visa requirements:
– Applicant must be citizen of Canada or Mexico
– USMCA “professions” listed in TN Appendix 1603.D.1 of NAFTA.
(NAFTA Occupations)
– May work full-time or part-time for U.S. employer (self
employment NOT permitted)
– Applicant must meet occupational qualifications listed in NAFTA
(Graphic Designers, Engineers, Management Consultant, Computer
Systems Analyst, etc.)
– Graphic Designer: BA or AA + 3 years of experience
 TN Visas
• TN visa valid for 3 years (may be extended
indefinitely)
• Applicant must maintain nonimmigrant intent
• May apply at border (for Canadians) or at consulate
(for Mexicans)
• Extensions may be filed with USCIS
• Spouse/children: TD visa (no work authorization)
• Changes under Trump Administration?
 E-3 Visas
• E-3 Treaty Visa requirements:
– Beneficiary must be Australian citizen
– “Specialty Occupation” visa (similar to H-1B)
– requires LCA/prevailing wage.
– Valid for 2 years with indefinite extensions
– May apply at Consulate or request USCIS extensions

• Spouse/children: E-3 Dependent visa

(may apply for work authorization)
 L-1 Visas
L-1A Multinational Executive/Manager Visa or L-1B
Specialized Knowledge (for related companies abroad)
• One-year abroad at parent, affiliate or subsidiary as an
executive, manager or specialized knowledge individual
• Must be coming to U.S. to fill executive, managerial or
specialized knowledge position
• Based on corporate relationship of foreign entity and
U.S. entity (parent, subsidiary, affiliate, etc.)
 L-1 Visas
• National of any country - No quota
• Length of visa
• Start up 1 year
• Established business 3 years
• Maximum length 7 years
• “New office” L for new companies – only good for 1 year.
Good option for start-up. Must show continued
revenue/business to renew.
• Spouses and children receive L-2 visa and spouses may
apply for work permit – unrestricted employment
• Good basis for EB-13 green card
 E-1/E-2 Visas
• General requirements:
– Requisite treaty between U.S. & country of citizenship – must
check to see if you are eligible, based on current List of Treaty
Countries:
– Enterprise and Individual must share “treaty nationality”
– Spouses and children receive E-1/E-2 dependent visas &
spouses can apply for work permit – unrestricted employment
• E-1 Treaty Trader
• 50% trade must be between Treaty Country and U.S.
• Import-export
 E-2 Visas
• E-2 Treaty Investor:
• Must make “substantial investment “ in U.S. company
• Must be executive, manager or essential employee -- must
have nationality of treaty country. (E.g. Company in U.S. is
50% Korean owned; can hire Korean national
employee/manager under E visa)
• Visa granted for up to 5 years; may extend indefinitely
• Allows for self-employment
• Spouse/children: E-2 Dependent Visa (may apply for work
authorization)
• Must intend to depart U.S. – when visa ends
 Immigrant Visas or “Green
Cards”
• Immigrant Visa - path to permanent
residence (two- or three-step process)
• Options depend on job, employee’s
qualifications, employer’s involvement
• Each case is analyzed individually to
determine the best strategy
 Immigrant Visas – Employment
Based Green Cards
• EB-2 (Second Preference)
• PERM for Advanced Degree Holders
• Masters or higher degree or foreign equivalent
• BA/BS plus five (5) years progressive experience
• Schedule A, Group II Alien of Exceptional Ability in
Arts, Sciences or Performing Arts
• National Interest Waiver (NIW) – you are working in a
field that is in the “national interest”
• EB-3 (Third Preference) – PERM
• Professionals with BA/BS degree or foreign equivalent
• Skilled Workers with 2 years experience
• Other Workers
 Immigrant Visas – EB-2
• EB-2 Category often to subject to retrogression
• Advanced Degree Professionals:
• “Skilled labor” under INA 212(a)(5)(A)
• Labor market test required – must obtain “labor
certification” from DOL
• Requires US Employer sponsorship (no self-
sponsorship)
• “Advanced degree” means degree
“above that of baccalaureate” (e.g., Master’s or Ph.D.)
• Master’s degree is equivalent to Bachelor’s degree + 5
years of post-baccalaureate, progressive experience
 Immigrant Visas – EB-3
• EB-3 category subject to visa retrogression
• May file I-485 concurrently if visa number
available
• Priority Date (PD) established when PERM
filed
• Premium processing available
• “Other” workers limited to 10,000 visas
 Immigrant Visas
• USCIS filing fees:
- I-140: $700
- Premium processing (if available): $1,440
- I-485: $1,225 per applicant
• Processing periods:
- I-140: 6 – 12 months (15 business days if
premium)
- I-485: 9 – 14 months
 Immigrant Visas - PERM
• PERM Labor Certification process:
– Test of local labor market for available U.S.
workers, able, willing and qualified for the job
– Recruitment conducted before applying to DOL
– If no able, willing and qualified U.S. workers, may
file to receive DOL certification of PERM
– Labor certification may not be filed/may be
denied if minimally qualified U.S. worker applies
 Immigrant Visas - PERM
• Recruitment for “professional” positions:
– Takes at least 2+ months
– Two print ads in Sunday paper (may post ad in
professional journal instead of 1 Sunday ad)
– 30-day Job Order with State Workforce Agency
– Employer must post Internal Notice for 10
business days or provide to CBA
– Three (3) additional venues from DOL list:
 Immigrant Visas - PERM
•Three (3) additional venues, including:
– Job fairs
– Employer’s website
– Job search website other than the employer’s
– On-campus recruiting
– Trade or professional organizations
– Private employment firms
– Employee referral program with incentives
– Campus placement offices
– Local or ethnic newspapers
– Radio and television advertising
 Immigrant Visas – PERM
• All recruitment must be done 30-180 days
prior to filing with DOL
• All potentially qualified U.S. applicants must
be interviewed to determine if qualified
• U.S. applicants: U.S. citizens, permanent
residents, refugees or asylees
• Non-U.S. applicants – e.g., H-1B or TN visa
holders - do not have to be considered
 Immigrant Visas - PERM
• 30 days after recruitment completed, may
file application with DOL
• Application filed electronically
• DOL may audit the case (request hard
copies of recruitment)
• Employer must maintain DOL Compliance
File for 5 years from date of filing PERM
 Immigrant Visas – PERM
• After PERM approved, may file immigrant visa
petition (I-140)
• Employer must show ability to pay worker’s
wage (annual report, tax return, audited
financial statements, and/or confirmation letter
if 100 employees or more)
• Employee must document meeting job
requirements (education, training, experience)
 Visa Bulletin
• Visa Bulletin issued by Department of State:
- Issued monthly
• March 2022 (Final Action Dates):
All countries
Visa Category China India
Except Listed
EB-1 C C C
EB-2 C 01 Mar 2019 01 May 2013
EB-3 C 22 Mar 2018 15 Jan 2012
• Visa issuance authorized for applicants with PD
earlier than listed date
 Visa Bulletin
• Applicants with priority dates earlier than the application date in the
chart may file for adjustment of status (I-485)
• If a category is “C” (Current), all applicants may file for adjustment of
status regardless of priority date
• Final Action Dates in the visa bulletin may come to a standstill or
retrogress in the case of high demand
• Filing Dates maybe more advanced than Final Action Dates allowing
individuals to file I-485 applications for adjustment of status to obtain
travel (AP) and employment (EAD) permits; but I-485 cannot be
approved until Final Action Dates are current
• USCIS announces which dates to use each month
 Visa Bulletin
• Department of State (DOS) determines movement of visa
priority dates and visa availability
• But USCIS determines which dates to apply to accept I-485s
• Movement is expected to slow down or stop in the coming
months
• Overall progress has been slower than expected
• Priority date movement depends on use of immigrant visas
• Consider establishing a priority date in EB-2 category while
working on credentials for EB-1
 Immigration Planning Tips
• Understand the big picture – how do temporary and permanent visas
interact?
• Is my Employer Cap-exempt?
• How do I switch to a Cap-subject Employer?
• How do I extend my H-1B past 6 years?
• I am Canadian in H-1B status – can I switch to TN?
• I am on TN or E-3 – can I pursue Permanent Residence?
• I have a Master’s and worked for Employer A for 3 years (no prior
experience) – can Employer A sponsor me for PERM?
• What is the most common way to extend my H-1B status past 6
years?
 Immigration Planning
• Also:
• Know how long processes take
• Establish a timeline
• Determine your immigration, professional and personal goals
• Know your priorities
• Make a plan with your advisor/attorney
• Have a contingency plan
• Applying for permanent residence too early may result in a denial
• Applying for permanent residence too late may result in a gap in
status
• Plan your immigration options in advance
 Thank you for attending

Questions?

© by Sostrin Immigration Lawyers, LLP. All rights reserved

 Presenter
Alexander Dgebuadze (ad@sostrin.com) is a founding partner at
Sostrin Immigration Lawyers, LLP in Los Angeles. He focuses on business
immigration law, representing clients in academic, automotive,
entertainment, healthcare, R&D and high-technology sectors. Mr.
Dgebuadze writes and presents extensively on advanced immigration law
topics, and has served as a contributing editor and author for AILA's
Guide to PERM Labor Certification (2011, 2015-16 and 2019 Editions).
Mr. Dgebuadze is listed in The International Who’s Who of Corporate
Immigration Lawyers and The Best Lawyers in America (Immigration).