Immigration Workshop Immigration Workshop for Internationalfor International

Faculty and Staff Faculty and Staff

During the seminar: Please use your “Chat” function to ask questions

Tien-Li Loke Walsh, Esq.Tien-Li Loke Walsh, Esq.Wolfsdorf Immigration Law Group

tloke@wolfsdorf.com1-800-VISA-LAW

1416 2nd StreetSanta Monica, CA 90401

© 2011 Wolfsdorf Immigration Law Group (all rights reserved) The contents of this document are proprietary and should not be duplicated or shared without express permission

from Wolfsdorf Immigration.

Immigrant Visa (“Green Card”) Immigrant Visa (“Green Card”)

OptionsOptions • Green Card Lottery (www.travel.state.gov)

• 50,000 green cards

• Registration period– October/part of November

• No application fee

• Must be eligible to participate

Green Card Lottery• Based on country of birth (not citizenship)• Countries that are NOT eligible include:

• Bangladesh, Brazil, Canada, P.R. China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and Vietnam

• Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible!

• “Cross-charge” to spouse’s country of birth?

Immigrant Visa (“Green Card”) Immigrant Visa (“Green Card”) OptionsOptions

• Family Based Immigrant Visas– Immediate Relative: spouse, parent, minor

children of U.S. citizens • Immediate benefits – work permit and travel

document within 2-3 months

• 4-6 months processing

• Conditional 2 year green card (marriage cases)

• Adult child must be 21 years old

Family Based Immigrant Visas continued...Family Based Immigrant Visas continued...

• Unmarried Adult Children of U.S. citizens (F1) (6 year backlog)

• Spouse/Children of Legal Permanent Resident (LPR) (F2A) (4-5 year backlog)

• Unmarried adult children of LPR (F2B) (9 year backlog)

• Married adult children of U.S. citizens (F3) (9 year backlog)

• Brothers and sisters of U.S. citizens (F4) (11 year backlog)

Employment Based OptionsEmployment Based Options

• EB-1– Alien of Extraordinary Ability– Outstanding Professor/Researcher

• EB-2– PERM Special Handling Labor Certification– Schedule A, Group II: Alien of Exceptional Ability– National Interest Waiver (NIW)– PERM Labor Certification

• EB-3– PERM Labor Certification

Special Handling PERM Labor Special Handling PERM Labor Certification (EB-2)Certification (EB-2)

• University/College Teachers• Memorializes competitive recruitment process• One advertisement in national professional journal

– Must list title, job duties (include teaching), minimum requirements for job

• Must file within 18 months of “selection”• Standard – “most qualified” candidate (not

“minimally qualified” candidate)

Special Handling PERM LCSpecial Handling PERM LC

• What Kind of Job Qualifies for Special Handling?– Permanent, full-time– Actual “classroom” teaching

• Team teaching one course?– Seems to be ok

• Course for credit? Not strictly required but easier to document if audited

• What about Librarians, Admissions Counselors, Advisors, etc.?

Special Handling Filing ProcessSpecial Handling Filing Process

1. Submit PERM to DOL

2. I-140 Immigrant visa petition

3. I-485 Application to Adjust Status to Permanent Residence (AOS)

– If retrogressed – can’t file AOS until priority date (PD) is current

– China and India

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born

INDIA MEXICO PHILIPPINES

1st C C C C C2nd C 15MAR08 15MAR08 C C

3rd 15JAN06 08SEP04 01AUG02 15JAN06 15JAN06

Other Workers 01JAN06 22APR03 22JUL02 01JAN06 01JAN06

4th C C C C C

•Priority Date (PD) = date of filing PERM application or filing of I-140 Immigrant Visa Petition•If retrogressed – can’t file I-485 AOS until PD is current

•Visa Bulletin (www.travel.state.gov)

Special Handling PERM LCSpecial Handling PERM LC

• Common Issues/Problems– Missed 18 month window– No advertisement in national journal

• Print versus electronic ads - Update

– EB-2 retrogression for Chinese and Indian nationals

EB-12 or EB-1BEB-12 or EB-1B

• Outstanding Professor/Researcher– Employer-sponsored

• University or institute of higher learning• Private industry

– 3 full-time research positions– company must have documented achievements in

academic field

– Permanent, tenured or tenure-track• What is permanent?

– Recognized internationally as outstanding

EB-1 Outstanding EB-1 Outstanding Professor/ResearcherProfessor/Researcher

• 2 out of 6 criteria – commonly:• Major awards or prizes• Membership in association requiring outstanding

achievement• Published materials in professional publications written

by others about the alien• Participation as a judge of the work of others• Original scientific or scholarly contributions• Authorship of scholarly articles/books in the area

• 3 years experience in teaching and/or research• Research experience while working on advanced degree

must be outstanding; or• If teaching, must have full responsibility for class

EB-1 ProcessEB-1 Process

• Step 1: I-140 Immigrant visa petition

• Step 2: I-485 Application to Adjust Status to Permanent Residence (AOS)

» Within 60-90 days

- Employment Authorization Document (EAD) and Advance Parole travel document

• File concurrently or separately– Can premium process I-140 ($1,225)

EB-2 Schedule A, Group II: Alien EB-2 Schedule A, Group II: Alien of Exceptional Abilityof Exceptional Ability

• Exceptional = degree of expertise significantly above that ordinarily encountered in the sciences, arts or business

• widespread acclaim and international recognition by recognized experts in the field; and

• work in that field during the past year and the intended work in the United States will require exceptional ability

Schedule A: Group II CriteriaSchedule A: Group II Criteria• Lesser national or international prizes of awards• Membership in associations requiring outstanding achievements• Published materials or mainstream media written by others about the

alien• Participation, individually or on a panel, as the judge of the work of

others (peer review activity)• Original contributions of major significance• Authorship of books or articles• Conference presentations• Critical role for distinguished organizations or productions/events• High compensation/salary• Commercial success• Display of work at exhibitions, film festivals• Any comparable evidence

Schedule A, Group II: Alien of Schedule A, Group II: Alien of Exceptional AbilityExceptional Ability

• Requires employer sponsorship

• Process is hybrid of PERM and Outstanding Professor/Researcher and Extraordinary Ability (EB-1)– Obtain prevailing wage determination– Notice must be posted at worksite– File I-140/I-485 separately or concurrently

PERM Labor CertificationPERM Labor Certification

• EB-2 versus EB-3• If job requires

– higher degree or BA + 5 years of experience = EB-2

– The following = EB-3• Professionals with BA degree or foreign equivalent

• Skilled Workers with 2 years experience

• Other Workers

• Why does it matter?

ProcessProcess• Step 1: PERM Labor Certification process

• USCIS and DOL• Employer must conduct “good faith” recruitment efforts and

show there is no qualified U.S. worker to do the job

• Step 2: I-140 Immigrant visa petition• Step 3: I-485 Application to Adjust Status

to Permanent Residence (AOS)• If retrogressed – can’t file AOS until priority date (PD) is

current

• China and India

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born

INDIA MEXICO PHILIPPINES

1st C C C C C2nd C 15MAR08 15MAR08 C C

3rd 15JAN06 08SEP04 01AUG02 15JAN06 15JAN06

Other Workers 01JAN06 22APR03 22JUL02 01JAN06 01JAN06

4th C C C C C

•Priority Date (PD) = date of filing PERM application or filing of I-140 Immigrant Visa Petition•If retrogressed – can’t file I-485 AOS until PD is current

•Visa Bulletin (www.travel.state.gov)

PERM IssuesPERM Issues

• Deciding between EB-2 and EB-3– NOT based on alien’s educational background – based

on the actual minimum requirements for job

• Tricks that don’t work:– Tailoring minimum job requirements to your

experience or education– Foreign language requirements

• Cannot use:– unauthorized employment– experience gained with sponsoring employer

Self-Petitioning OptionsSelf-Petitioning Options(EB-1A or EB-11)(EB-1A or EB-11)

• Alien of Extraordinary Ability– One-time achievement (major, international

award) or at least 3 out of 10 criteria– Self-petition or employer-sponsored– If already have O-1 under sciences, athletics,

business, education – may qualify under EB-1

Criteria: Extraordinary AbilityCriteria: Extraordinary Ability• Lesser national or international prizes of awards• Membership in associations requiring outstanding achievements• Published materials or mainstream media written by others about

the alien• Participation, individually or on a panel, as the judge of the work

of others (peer review activity)• Original contributions of major significance• Authorship of books or articles• Conference presentations• Critical role for distinguished organizations or productions/events• High compensation/salary• Commercial success• Display of work at exhibitions, film festivals• Any comparable evidence

EB-1 ProcessEB-1 Process• Step 1: I-140 Immigrant visa petition• Step 2: I-485 Application to Adjust

Status to Permanent Residence (AOS)

» Within 60-90 days - Employment Authorization Document (EAD) and

Advance Parole travel document

• File concurrently or separately– Can premium process I-140

EB-2 National Interest Waiver EB-2 National Interest Waiver (NIW)(NIW)

• Can self-petition (no employer required)

• No premium processing

• Criteria– Work has intrinsic merit– Work is national in scope– In the national interest to waive the labor

certification process• Must show that past record justifies the belief that you will

continue to serve in the national interest of the United States

National Interest WaiverNational Interest Waiver

Useful evidence includes:

• Publication of scholarly books and articles

• Participation, individually or on a panel, as the judge of the work of others (peer review activity)

• Original contributions of major significance

• National grants or funding

• Conference presentations

• Playing a critical role in scientific or research studies

• Citation record

RetrogressionRetrogression

• Options for Chinese/Indian faculty and staff– Consider filing EB-1 (Extraordinary Ability or

Outstanding Researcher)• no backlogs

– File two applications? EB-1 and EB-2

Summary of Employment-Based Summary of Employment-Based OptionsOptions

• EB-1– Alien of Extraordinary Ability (can self-petition)– Outstanding Professor/Researcher

• EB-2– Special Handling PERM– Schedule A, Group II: Alien of Exceptional Ability– NIW (can self-petition)– PERM Labor Certification

• EB-3– PERM Labor Certification

Tips to Build An EB-1 or NIW Case

• Publish or perish – international peer-reviewed journals

• Speak at national or international conferences

• Engage in peer-review activity for journals, conference committees, scientific boards

• Mainstream media coverage – do it!

Common Green Card IssuesCommon Green Card Issues

• When to Start Green Card Process• What is latest you should start?

– 4.5 years into H-1B

• Maintenance of status• Always maintain underlying status

Common Green Card IssuesCommon Green Card Issues

• What Happens to the Green Card if you Change Employers?

• Keep green card if:• I-140 approved; and

• I-485 pending for more than 180 days (approx. 6 months); and

• job is same or similar position

What Happens When You Reach What Happens When You Reach 6-year Cap?6-year Cap?

• Recapturing time spent outside the U.S.• 2 ways to extend H-1B beyond 6 years

• Green card application pending for more than 1 year

– Issued in one-year increments• I-140 approved and cannot file I-485

application because of backlogs or “retrogression”

– Issued in three-year increments

Other Nonimmigrant Visa Other Nonimmigrant Visa OptionsOptions

• TN NAFTA visas for Canadians and Mexicans– Issued for 3 years

• E-3 visas for Australian professionals– Issued for 2 years; no limit

• O-1 Alien of Extraordinary Ability– issued for 3 years; renewable indefinitely in 1

or 3 year increments

O-1 Alien of Extraordinary Ability• Sciences, education, athletics, business, arts, motion

pictures and television• Major award • Lesser national or international prizes of awards• Membership in associations requiring outstanding achievements• Published materials or mainstream media written by others about the

alien• Participation, individually or on a panel, as the judge of the work of

others• Original contributions of major significance• Authorship of books or articles• Conference presentations• Critical role for distinguished organizations or productions/events• High compensation/salary• Commercial success• Display of work at exhibitions, film festivals

Spouses and Minor ChildrenSpouses and Minor Children

• Nonimmigrant visas: – Derivative classification

• Look out for age-outs when child turns 21 years old

– No employment authorization – spouses may apply for their own work visa if they qualify

• Immigrant visas– Eligible to file I-485 AOS with principal

applicant

Options for J-1s subject to two-year Options for J-1s subject to two-year home residency requirementhome residency requirement

• Prohibited from changing to H-1B or L-1 or filing I-485 AOS (green card) until 2 year obligation is satisfied or alien obtains waiver

• May obtain the following visas even if J-1 subject:– O-1, TN, E-3, TN, F-1– Must still comply with two-year home residency

obligation

H-1B PortabilityH-1B Portability

• Can transfer H-1B to new employer at any time• Portability allows commencement of new job

upon “filing” of new petition – no need to wait for approval– Issue: gaps in between jobs

• Caution: Cap-exempt H-1B to cap-subject employer (university to private industry)– Subject to H-1B cap (never been counted)

I have my Green Card, what now?I have my Green Card, what now?

• Maintaining the green card• Physical presence requirements

• Becoming a U.S. citizen– Eligibility requirements

Hot Topics: Trends for the Future?

• Start-up Visa Act for investors and entrepreneurs

• Buy a House = Get a Green Card

• Dealing with retrogression – ending per-country limits for employment based categories– Good news for EB-2 Chinese and Indians– Bad news for everyone else

Q & APlease use your “Chat” function to ask questions

For follow-up questions:

Tien-Li Loke Walsh, Esq.tloke@wolfsdorf.com

orDaniel Manuel, Academic Services Coordinator

dmanuel@wolfsdorf.com

Wolfsdorf Immigration Law Group1-800-VISA-LAW

1416 2nd StreetSanta Monica, CA 90401