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Immigration Optionsfor Scholars and Researchers
Thursday, November 12, 2015
Andrew J. Zeltner, Esq.
Klasko Immigration Law Partners, LLP
Philadelphia New York Chicago
www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Andrew J. Zeltner, Esq.
Andrew Zeltner is an Associate in the Firm’s Philadelphia office and focuses his practice on both business and family-based immigration. Drew received his law degree from the Quinnipiac University School of Law. Drew is currently admitted to practice in New York and is a member of the American Immigration Lawyers Association. He also has particular experience in complex corporate immigration issues including labor certifications, L-1 petitions and EB-1 filings.
Klasko Immigration Law Partners, LLP
Immigration Options for Scholars and Researchers
Agenda
H-1B Visas and Quota J-1 Visas and Waivers O-1 Visas Permanent Residence Status Q & A Session
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
H-1B Visas Basic requirements
Job Offer Prevailing Wage Bachelors or higher degree Specialty occupation
Procedure and processing times Specialty occupation issues Part-time or full-time Length of approval Extensions Portability Spouses Travel
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
H-1B Quota
What is it, and what does it mean? Separate quota for US-educated advanced
degree holders Separate options for Canada, Mexico, Australia,
Chile and Singapore Prospects for change Timing
April 1 filing date October 1 start date
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Options for Dealingwith H-1B Quota
Quota-exempt employment Strategies to enhance chances of getting H-1B Alternative visa options Applying for permanent residence directly
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Quota-Exempt Employment
Who is not subject to the quota?UniversitiesNonprofit institutions affiliated with universitiesEmployed “at” universityNonprofit or government research organizationConcurrent employmentPrevious H-1B
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Travel and Status Issuesfor H-1B Approvals
Change of status vs. consular visa issuance Travel after April 1 Maintaining status until October 1
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
J-1 Visas
Who is subject to 2-year return? What does it mean to be subject? Options if subject:
Return home Where is home? Aggregating trips?
O-1 visa Waiver
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Avoiding Need for J-1 Waiver
Medical ResearchersWho decides if 2 year return requirement?
CIS – not DOS Visa, DS 2019, advisory opinion not determinative
Only subject if Skills list Government financing Graduate medical education or training
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Avoiding Need for J-1 Waiver
Skills list advocacy Country of citizenship or country of last residence
Country of last residence vs. country of last permanent residence
Proving different skills list category Effect of new country of citizenship
(cont’d)
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Visa Options Without Needing Waiver
Anything other than H or L visa or change of statusO-1, TN-1, E-3 okLabor certification and I-140 can be approved
I-485 cannot be filed (except clinical NIW)
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Fulfilling Two-Year Return Requirement
Return to country of nationality or last residence?
Can fulfill sequentially
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
J-1 Waiver Options
No objection statement Exceptional hardship Persecution Interested government agency
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
No Objection Statement
Researchers only Usually not helpful if U.S. or international
organization funding Quickest and easiest waiver Attitudes of different countries
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Exceptional Hardship Waiver
Hardship to U.S. citizen or LPR spouse or child Hardship must be “exceptional” Very difficult
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Persecution Waiver
Individualized persecution Similar to asylum
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Interested Government Agency Waivers
Research trackUsually through HHS
Peer review process – unlike CIS filings
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
HHS Waivers
Key Issues Importance of research program
Does not have to be NIH fundedEssentiality and uniqueness of foreign national
Recruitment (unavailability of U.S. researchers)Future of program and future of foreign nationalBench research vs. clinical researchExcellence of foreign national’s research
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
HHS Waivers
Other Issues Involvement of NIH scientists familiar with
the research
Impact of Fulbright funding
Timing
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Other Medical Research Waivers
Usually limited to agency contracts, grants or research programs
Examples include DOD, NASA, DOE and DOI
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
O-1 Visas
Employer sponsored Standards Documentation Reference letters Processing time/issues Length of approval Extensions Spouses
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Permanent Residence
Employer-sponsored, family-sponsored or self-sponsored
Quotas/timing issues Impact on visa status Impact on family Impact on travel
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Permanent Resident Status
Family Investment Asylum Lottery Employment
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Spouse of U.S. citizenNo quota waitEAD and AP within 3 monthsTravel may result in loss of status unless H-1B
All other relationshipsLong quota waitNo interim benefits
Family
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Investment
$500,000 or $1,000,000
Individual investment or regional center
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Asylum
Individualized fear of persecution
Race, religion, nationality, political opinion, social group, sexual persuasion
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Lottery
Only specified countries
One year window
www.travel.state.gov
Effect of application on future visa applications
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
Employer-sponsored or self-sponsored Labor certification or
extraordinary/national interest/exceptional
Multiple petitionsFor more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
QuotasVisa Bulletin (www.travel.state.gov)Per country of birth, per preference category,
per fiscal yearFiling date is “priority date”EB-1 (extraordinary ability, outstanding
researcher) No quota wait
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
QuotasEB-2
National interest waiver Labor certification requiring
Masters degree Bachelors degree plus 5 years progressive experience,
or Exceptional ability
No quota wait, except China and IndiaEB-3
Labor certification requiring bachelors or 2 years experience
Long quota wait for all countries
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Residency Quotas, Where Are We Now?
Vis
a B
ulle
tin fo
r D
ecem
ber
201
5 EmploymentBased
All Charge-ability Areas Except Those
Listed
CHINA- mainland born
INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01FEB12 01JUN07 C C
3rd 01SEP15 15APR12 22APR04 01SEP15 01AUG07
Other Workers 01SEP15 01AUG06 22APR04 01SEP15 01AUG07
4th C C C C C
Certain Religious Workers
C C C C C
5th Targeted Employment
Areas/Regional
Centers and Pilot
Programs
C 15DEC13 C C C
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
Self-SponsoredExtraordinary ability
EB-1 Standard
National or international reputation “One of few at the top of peers” Key is defining field of expertise specifically
Extensive documentation required Reference letters critical
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
National Interest Waiver EB-2 Standard
Exceptional ability or advanced degree National priority National impact
Extensive documentation required Reference letters critical
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
For more information, visit www.klaskolaw.com
Outstanding Researcher/EB-1 (I-140, filing fee $580)
Similar to Extraordinary Ability Requires employer sponsor At least 3 Years experience Permanent job offer Qualified Employers:
Academic Institutions Industry
At least 3 FT researchers Recognition in field
(cont’d)
Klasko Immigration Law Partners, LLP
EB-1 for Researchers
Evaluating EligibilityCV Evaluation 1st listed author publications
In process; submitted; accepted; published; cited Impact factor? Citations
Footnote Text
Presentations 1st listed abstracts Oral vs. poster
Book chapters Honors and awards Manuscript reviewer Media
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
EB-1 for Researchers
Evaluating Eligibility
Evaluation Outside of CV
Importance/narrowness of field of expertise Ability to explain importance Significant contributions to field
First, only, best, new discovery? Impact on field and other researchers New? Old? Sustained?
RefereesFor more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
New EB-1 Guidance (Kazarian)
Issued December 2010
Establishes Two-Part Analysis of EB-1 Does Petition Contain Evidence of Requisite Number
of Criteria?
‘Final Merits Analysis’ – does evidence demonstrate that beneficiary is one of a very few at the top of the field?
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
New EB-1 Guidance
Implications of Two Part Analysis
‘Final merits analysis’ is an opportunity to second guess the criteria – more subjective adjudication
USCIS provides no clear guidelines for applying final merits analysis
Confusion among adjudicators as to the correct standards to apply
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
Other Factors Not a peer review process
Importance of job title?
Importance of employer sponsorship?
File now, or wait?
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
Labor Certification Application (PERM)Employer sponsored – employer must payRecruitmentPrevailing wageLegal issuesTimingFirst of 3 stepsFor more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
TimingElectronic filing4 months?Possibility of auditFirst of three steps Importance of filing before end of 5th year
in H-1B statusFor more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
I-140 Petition1st step for EB-1 and national interest waiver2nd step for PERM
Employee documents education and experience If adjustment of status, file concurrently with I-
485 if quota current If consular immigrant visa processing,
approval sent to National Visa Center For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
I-485 (Application for Adjustment of Status to Permanent Resident)Cannot file until quota is current Importance of filing
Do not need to maintain visa status Can file for spouse and child Can get Employment Authorization Document (EAD)
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Permanent Resident StatusEmployment
Can get advance parole travel document Eliminate need to obtain visas Can still maintain and extend H-1B status
Can leave employer if I-140 approved I-485 pending 180 days Similar occupation
Permanent resident upon approval Timing and delay issues
For more information, visit www.klaskolaw.com
(cont’d)
Klasko Immigration Law Partners, LLP
Materials
Please visit www.klaskolaw.com to download this PowerPoint presentation and relevant articles.
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Questions ?
For more information, visit www.klaskolaw.com
Klasko Immigration Law Partners, LLP
Andrew J. Zeltner, Esq.
215.825.8600
Klasko Immigration Law Partners, LLP
Philadelphia New York Chicago
For Further Information
Klasko Immigration Law Partners, LLP
www.klaskolaw.com
www.eb1immigration.com
www.worksite-compliance.com
www.eb5immigration.com
http://blog.klaskolaw.com
online
Klasko Immigration Law Partners, LLP
DISCLAIMER / COPYRIGHT NOTICE
The materials contained in this PowerPoint does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Copyright © 2015 Klasko Immigration Law Partners, LLP. All rights reserved.
Copyright © 2015. All rights reserved.