Immigration Matters2014 Territorial Human Resources

Conference

Presented by: Rebecca R. Massiatte

Jackson Lewis P.C

Tuesday, April 29, 2014

Temporary versus Permanent(Nonimmigrant versus Immigrant)

• Temporary (restricted, time limited)– B-1/B-2: Visitors– J-1: Interns, Trainee, Camp Counselor– R-1: Religious Worker– F-1: Student– H-1B: Specialty Occupation

• Permanent (unrestricted employment)– Lawful Permanent Resident

• Employment-based (Special Immigrant)• Family-based (marriage to LPR or USC)

B-1 / B-2 : Temporary Visitor

• B-1: temporary business visitor; no remuneration except incidental costs

• B-2: visitor for pleasure (Disneyland, visit family)

• Other nuanced purposes allowed

• Invitation letters

• Visa required except may use Visa Waiver Program (ESTA registration)

• Visa Waiver: max 90 days, no ext.

J-1: Interns, Trainee, Camp Counselor

• U.S. Dept of State administers the J-1 program• DS-2019: Certificate of Eligibility for Exchange Visitor Status

issued by sponsoring agency • Intern: Internship programs are designed to allow foreign

college and university students or recent graduates to come to the United States to gain exposure to U.S. culture and to receive hands-on experience in U.S. business practices in their chosen occupational field

• Trainee: Training programs are designed to allow foreign professionals to come to the United States to gain exposure to U.S. culture and to receive training in U.S. business practices in their chosen occupational field

• Camp Counselor: The Camp Counselor Program enables post-secondary students, youth workers, and teachers to share their culture and ideas with the people of the United States in camp settings throughout the country

Camp Counselors

• Sufficiently proficient in the English language to supervise and interact with American youth;

• A foreign post-secondary student, youth worker, teacher or individual with specialized skills; and

• At least 18-years-old• Financial value: Participants receive pay and

benefits commensurate with those offered to their American counterparts at the camps.

• Camp Counselors will occasionally have to: Perform non-counseling duties as part of camp life, but not serve as “staff.” For example, they cannot serve as administrator personnel, cooks or menial laborers such as dishwashers or janitors.

R-1: Qualifying Membership

The Salvation Army—USA Southern Territory is a part of the national organization of The Salvation Army which is a part of the international religious organization, The Salvation Army, based in London, England. The Salvation Army, founded in 1865 in London, England where it continues to maintain its international headquarters, is an international religious organization and movement organized and operated on a quasi-military pattern and is a branch of the Christian Church. This organization, which is active in over 100 countries throughout the world, seeks advancement of the Christian religion and of Christian education. The motivation of the organization is love of God and a practical concern for the needs of humanity. This is expressed by a spiritual ministry, the purposes of which are to preach the Gospel, disseminate Christian truths, supply basic human necessities, provide personal counseling and undertake the spiritual and moral regeneration and physical rehabilitation of all persons in need who come within its sphere of influence regardless of race, color, creed, sex, or age.

 

The Salvation Army’s membership includes officers (clergy), soldiers/adherents (laity), members of various activity groups and volunteers who also serve as advisors, associates, and committed participants in its service function.

The Basics – R-1Temporary Work Visa

Religious Worker:

Petition Based Process

File Form I-129 Petition for Nonimmigrant Worker with U.S. Citizenship and Immigration Service (USCIS)- California Service Center

Qualifying Criteria

-2 Year Membership in The Salvation Army (in/out of US)

-Position offered: Vocation of a Minister of Religion (Corps Officers); to work in a professional capacity in a religious vocation or occupation; or religious vocation or occupation

-full time or part time

Request for Additional Evidence

R-1 Temporary Work Visa cont.

5 year maximum period (granted in 30 month increments)

Dependent spouse and children (under 21 years) can seek R-2 dependent status (spouses canNOT work in R-2 status)

No prevailing wage requirements (such as is required for H-1Bs)

Processing Times Can Vary- Average 4 months; premium processing available (additional $1225 filing fee) for 15 business day adjudication

Petition Filing Fee: $325.00

**Obligation to notify immigration of change(s) in employment

Training / Transition to & from F-1

To attend the College on a full time basis, F-1 student status must be secured (in certain instances, timely application with USCIS is sufficient).

To secure F-1 student status, the College must initiate processing in the SEVIS system for issuance of Form I-20 (establishes start/end dates of program).

With the Form I-20 issued by the College, the student must request a change of status from his/her current status (R-1, H-1B, etc.) to F-1.

A request to change status must be signed & submitted by the student to U.S. Citizenship and Immigration Service on Form I-539, Application to Change/Extend Status, along with supporting evidence. Signed Form I-20 (school & student), maintenance of status documents (prior R-1/H-1B approvals, I-94, payroll records); passport for identificationQualifying dependents require individual I-20 but can file together on Form I-539

Training / Transition to & from F-1 cont.

To seek a change of status to F-1, the applicant must be present in the U.S. in a valid status (this is the same to change from F-1 to R-1-must be in a valid status).

Once USCIS receives the I-539 Application to Change Status, an applicant may be allowed to commence studies at the College while the application is in process. Various factors can influence this, including maintenance of status. (B-1/B-2 and F-2 must have approval prior to commencement of studies/2.5 months processing time).

Whether an applicant is in status at the time of application can be assessed upon a close review of their immigration documentation (this should be done when considering any change of status). F-1s- admitted “duration of status.”

Training / Transition to & from F-1 cont.

Other option to secure F-1 status is to travel outside the U.S. and make a visa application at the U.S. Embassy/Consulate abroad.Intent to maintain foreign residence, ties, intent to return

Maintain valid passport and update concerning any travel, updating the College concerning travel (new I-94, visa) and address changes.

While I-539 Request to Change Status to F-1 is pending, no travel is authorized.

Full-time status enrollment

Work during school and necessary authorizations

CPT: Curricular Practical Training (I-20 endorsement)

OPT: Optional Practical Training (EAD)

Failure to Maintain Status

Unlawful Presence/Status (accumulated on/after April 1, 1997)

Up to 180 days

-no formal bar

-may have issues in future visa application

181 days and up to 1 year

-3 year bar

-waiver: hardship to qualifying family member***

1 year or more

-10 year bar

-waiver: hardship to qualifying family member***

***the person’s U.S. citizen or permanent resident spouse or parent(s) would suffer “extreme hardship” unless the person was granted a waiver

Graduation, Orders…what is next?

Optional Practical TrainingApply up to 90 days before graduation

Takes up to 90 days to approve by immigration

Need employment authorization card in hand to work

Request to change status to R-1

R-1 must be approved to commence employment in R-1status (R-1 approval evidence of work authorization)

Maintenance of Status consideration

Can request R-1 up to 6 months of requested start date but must meet criteria for the position offered at the time of filing (Corps Officers/Ministers of Religion scenario)

Upon completion of F-1 student status / OPT- is there a “grace period”?

60 days from degree program completion (see dates on I-20/active in SEVIS, OPT document authorized)

H-1B: Specialty Occupation

• A position that requires at minimum for employment a bachelors level degree in a specialized field.

• Prevailing Wage Requirement- specific to location of intended employment

• 6 year limit (approved in 3 year increments)• File I-129 Petition; $2,325 govt filing fees• Avg. 6 months proc.; expedite available ($1,225)• Site Visits – random or for cause (fraud)• H-1B Cap: 65K (bachelors) + 20K (U.S. masters)

– April 1-7, 2014: USCIS rcd 172,500 petitions– Lottery

Deferred Action for Childhood Arrivals

1. Were under the age of 31 as of June 15, 2012;

2. Came to the United States before reaching your 16th birthday;

3. Have continuously resided in the United States since June 15, 2007, up to the present time;

4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;

5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;

6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Visa Versus Status

Function of a U.S. Visa (stamp in passport)

Issued by U.S. Embassy/Consulate Abroad

Facilitates request to enter in specific status at the port of entry

Visa Reciprocity

Function of Status

Authorizes stay in the U.S. in specific classification

Status is indicated on Form I-94 and Form I-797 Notice of Action from USCIS

Evidence from CBP: https://i94.cbp.dhs.gov/I94/request.html

Considerations:Impact on Changing Status in the U.S. and then applying for Visa

Timeline and green card processing

The Basics – Permanent Residence

The “Green Card”:

Petition Based Process

File Form I-360 Special Immigrant Petition with U.S. Citizenship and Immigration Service (USCIS)

Petition Filing Fee: $405.00

Annual limit of immigrant visas

Qualifying Criteria

-2 Year Membership in The Salvation Army

-2 Years Experience in Qualifying Position offered: Vocation of a Minister of Religion (Corps Officers); to work in a professional capacity in a religious vocation or occupation; or religious vocation or occupation

- Full Time only (no part time)

.

The Basics – Permanent Residence cont.

For married couples who are both in R-1 status, or both graduates of the College and who seek LPR status, only one I-360 needed.

Must wait for I-360 to be approved before filing Form I-485 Application to Adjust Status to Permanent Resident.

Work Authorization Considerations, maintaining ability to workReminder R-1 max period of 5 years

Timeline and when to file Form I-360Form I-360 cannot be expedited

Standard processing time: 6 months

Identified Trend: Requests for letters from the specific work location

The Basics – Permanent Residence cont.

Once the I-360 is approved, Form I-485 Application to Adjust Status to Permanent Residence can be filed by the I-360 beneficiary and qualifying dependents (assuming current status of the Visa Bulletin).

The I-485 Application is the final step of the green card process and requires the individual applicant to demonstrate his/her eligibility for a green card (no grounds of inadmissibility).

Upon the approval of Form I-485, the permanent resident card is issued (mailed to the applicant) and permits unrestricted authorization for employment in the position described in the underlying Form I-360.

Changes in position, reasonable period of employment

Attestations

The Petition process for both Form I-129 for R-1 Status and Form I-360 for Special Immigrant Status require the attestation by The Salvation Army – USA Southern Territory of certain facts:

Number of Petition Filings

Employees at the Particular Worksite

Full Time/Part Time Status

Number of prior petitions filed

Compensation (salaried/non-salaried)

Membership

Qualifications for the position

Consequently, communication with THQ is critical!

Considerations for the Permanent Resident

A permanent resident:•Is still subject to the immigration laws•CanNOT vote (only U.S. citizens can vote)•Can qualify to apply for naturalization upon 5 year anniversary of permanent resident status (3 years if permanent resident status acquired as a result of marriage to a U.S. citizen)•Must demonstrate intent to reside in the U.S. (no abandonment of permanent resident status- presumption of abandonment if outside the U.S. 1 year or longer)•Orders for foreign assignment – steps available to “show” intent to return to the U.S. upon conclusion of foreign assignment and that there is no intent to abandon permanent residence

– Reentry Permits to Enter (must apply for in the U.S., biometrics)

Internal THQ Process

Step 1: Division identifies potential candidate.

Step 2: Contact THQ HR Immigration Administrator as quickly as possible with as much background information as you have, such as:

•Copies of any previously issued visas (complete copy of current passport, including blank pages)

•Copies of any current immigration receipts, approvals, as issued by USCIS

• List of all prior entries into the U.S. showing visa type (due to temporary visa limits on duration of stay)

•Confirmation place and country of citizenship (visa options/considerations)

•Employment History / Resume (visa options/considerations)

Internal THQ Process cont.

Step 3: Immigration Administrator will review information to determine the required process

Every case is unique! A single fact can change the circumstances of an individual’s case and immigration options/outcomes. Details, details, details….

Note: All information is retained in THQ HR in a confidential manner.

Step 4: Immigration Administrator notifies Division of any potential concerns

With early notification, THQ Immigration Administrator can advise all concerned if there is a potential hindrance to obtaining the desired immigration status.

Internal THQ Process cont.

Step 5: THQ and the Division develops the action plan, strategy, timeline with an awareness of legal options, requirements and limitations.

If there are “red flags” assess how this impacts your plan, strategy and timeline and identify options.

Awareness of any prior immigration filing is critical.

Practice an ongoing awareness and sensitivity with regard to the information that is presented to USCIS.

Be aware of the Fraud Detection and National Security Unit at USCIS – unannounced visits on location and email inquiries to confirm the terms outlined in an immigration submission

Possible Immigration Scenarios for Incoming Candidates

(Red Flags/Traps)

1. Current R-1 status/visa expires after start of the training session (Visa process has been handled by TSA). 

•EBC/Applicant files Form I-539 Application to Change Status to F-1 Student (90 days prior to start of current training session.)

•Candidate can start training session upon confirmation that Form I-539 has been received by USCIS and is pending.

 

2. Current R-1 visa expires before start of the training session

 •Important that TSA Immigration Administrator be notified as early as possible of potential acceptance as candidate.

•Renewal of R-1 status/visa must be initiated with USCIS to “maintain status”; must be filed PRIOR to R-1 expiration date.

•Timing is critical. 

Possible Immigration Scenarios for Incoming Candidates

(Red Flags/Traps)

3. H-1B Visa – prior employer/not employed by The Salvation Army•Employer notifies USCIS no earlier than 30 days prior to termination of employment.•Employment cannot terminate earlier than approximately July 5 (depending on start of training session).•If we do not have any information, the end result could be that the H-1B visa holder finds himself out of status because the previous employer withdrew sponsorship of the H-1B resulting in a lapse of time between the H-1B termination and filing of Form I-539-maintenance of status issue. 

4. H-1B Visa – employed by The Salvation Army•Termination of employment cannot be earlier than 30 days prior to start of training session.•TSA Immigration Administrator would have control of filings.•Can maintain legal H-1B status/employment for visa holder. 

 

 

 

 

Possible Immigration Scenarios for Incoming Candidates

(Red Flags/Traps)

5. Green Card Pending Application (petition being handled by TSA)•Form I-485 has been filed with USCIS and is pending adjudication. Visa holder can start training, but does not change to F-1 student status.

•Training in furtherance of anticipated permanent job offered.

 6. Green Card Pending Application (candidate has submitted petition personally)• Important that THQ Immigration Administrator be notified of status of process prior to final arrangements for start of training to assess options, implications of pending application(s) with USCIS.

 7. Approved Green Card• Candidate will have no problem attending College and will be free to travel while in training.

 

 

  

You have a support team!

THQ Immigration Administrator:

Ms. Mary Ann Harold, ext. 10606

Territorial Human Resources Secretary:

Major Annette Dodd, 404-728-1307

Territorial Assistant Human Resources Director:

Ms. Regina Davis, ext. 10474

Immigration Team at Jackson Lewis LLP

Thank You & Questions

Rebecca R. Massiatte

Partner

jackson|lewis LLP

500 N. Akard

Suite 2500

Dallas, TX  75201

 

214.520.2400 | General

972.728.3261 | Direct

214.520.2008 | Fax

 

massiatter@jacksonlewis.com

www.jacksonlewis.com