Life After PT
Life After Practical Training Seminar is offered the first Monday of the month at 2 p.m. You MUST schedule an appointment.
In recent years, there has been an increasing trend for
person's holding F-1 Student visas, whether they have
used optional practical training or not, and J-1 Visa
holders who are eligible, to change status and remain
in the United States pursuant to employment. The most
popular vehicles for this change are attempts to obtain
either H-1B or TN status.
Both require an offer qualifying employment from an employer who is willing to take part in the legal process of obtaining status, but there are essential differences.It would be impossible to provide a comprehensive review of the applicable laws and regulations as there are variables in status that are particular to every individual. Therefore, please be advised that this is an abbreviated survey of an expansive field of law.
Understanding the TN Visa
TN Status is only accorded to Citizens of Canada and Mexico. This classification was borne pursuant to the North American Free Trade Agreement, usually referred to as NAFTA, and is only available to persons who will be employed in particular fields or professional employment. The applicant for TN status must prove that he or she meets the minimum requirements for the position, and may be accorded the status for up to one year.
The status will not be granted unless the applicant can prove temporary intent. Extensions may be granted for further one-year periods, and there is currently no limit on the number of extensions an individual may obtain. Dependants may accompany the principal to the United States, but will not be eligible for employment authorization.
The most attractive feature of the TN is the relative ease in obtaining the status. The application is made at the port of entry in either Mexico or Canada, and the status is granted or denied in an immediate adjudication by a consular official.
Because a TN requires proof of temporary intent, it is not possible to file for Permanent Residency from TN status. First, the individual must obtain H-1B status.
Understanding the H-1B
The H-1B is accorded for persons offered employment in a position that requires at least a Bachelor's degree. The applicant must prove that he or she meets the minimum requirements for the position, and may be granted the status for an initial period of up to three years. The applicant need not have temporary intent; dual intent is recognized for H-1B applicants.
Extensions may be granted in up to three-year increments, but the applicant may not spend more than 6 years in the U.S. in H-1B status except in specified instances. Dependents may accompany the principal to the US, but will not be eligible for employment authorization. Obtaining an H-1B visa requires a three-step process, which usually takes between 4 to 6 months. The applicant need not be in the US during this application process.
Premium Processing: is an expedited
handling of H-1B applications that a petitioner may request
for an additional fee of $1000. The application will be
adjudicated within 15 business days.
H-1B Cap: Each governmental fiscal year
(October 1st October 1st), there are only 65,000 H-1B
numbers available nation-wide. Institutions of Higher
education, nonprofit organizations, and government research
organizations are not subject to the cap. The earliest
an H-1B petition may be filed is six months prior to the
start date of employment.
Omnibus Appropriations Bill - 2005: This
legislation was passed on Dec.8, 2004 and goes into effect
as of March 8, 2005. In addition to the basic filing fee
of an H-1B petition ($185), employers will now be required
to pay an additional $500 "fraud prevention and detection
fee".
There is also a training fee of $1500 that the employer
must pay ($750 for small businesses) - institutions of
higher education, affiliated non-profits, and government
research organizations are exempt from the training fee.
This Bill also made an allowance of an additional 20,000
H-1B visas which became available as of March 8 for those
individuals who received a Master's level degree or higher
from an Institution of Higher Education in the United
States.
Prevailing Wage: Each employer must first
satisfy Dept. of Labor standards for salary/wage level
BEFORE they are eligible to petition for an H-1B status
on your behalf. The employer must obtain the "prevailing
wage" from DOL statistical surveys to determine whether
the offered salary meets that mandatory pay level. The
employer must pay at or above the designated prevailing
wage for the position.
Attorney's fees: You should also anticipate
that you may be responsible, or partially responsible
for attorney's fees connected to the filing of the H-1B
petition. This will depend on the employer, your salary
and other arrangements.
Understanding Permanent Residency
There are several way in which individuals may pursue Lawful Permanent Residency, also referred to as the "green card." Most of the options involve various filings over a period of one to three years, and none of them is guaranteed to be successful. The most popular of those routes are applying for Diversity Lottery, Family Petitions, and Labor Certifications.
As a TN professional, an individual is not eligible to apply to change status in the United States. Therefore, attempting to obtain permanent residency for an individual in TN status may necessitate spending periods of time outside of the US. Persons who have held TN status may encounter some difficulty applying for permanent residency as the veracity of the temporary intent that was required to obtain status may be questioned.
The most common route to permanent residency for H-1B visa holders is through the Labor Certification. This usually necessitates the filing of an application with the Department of Labor, which proves that there is a position for which there are no qualified and willing United States Citizens to undertake such employment.
There are several preference categories that require different standards of documentation. A few of the preferences, such as Priority Worker, allow the applicant to bystep the Department of Labor Filing and file initial documentation with the United States Citizenship and Immigration Services.
Understanding Immigration
The process to obtain and change status in the United States involves a complex and constantly changing set of laws and regulations. The petitions and applications are most commonly pursued with the United States Citizenship and Immigration Services, and Department of Homeland Security, and the Department of Labor.
It is important that individuals who are considering filing any documentation with respect to immigration obtain as much information as possible on the procedures and consequences of filing. While some applications and petitions seem relatively simple, the effects can be resounding. It is not practical or wise to pursue some benefits without the aid of a qualified immigration attorney.
While the University attorney is there to offer you guidance while you are a student, he or she is by no means your legal representation.The following internet sites represent some places to begin your search for information and resources:
Travelling to Obtain H Visa Stamp
You must bring the following documents with you:- A copy of your full H-1B petition. SCIS will provide this to you at your request.
- Copies of your 2-3 most recent paystubs
- Your original diploma (at the level which allows you to qualify for your position)