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Options For Filing A Self-Sponsored Petition For Permanent Residence
Kathleen GrzegorekCertified Specialist in
Immigration & Nationality Law
© Stone Grzegorek & Gonzalez LLP, 2014
2
Terminology – Permanent Residence
• Lawful Permanent Residence (LPR) status
– “Green Card”
– Live and work in the US indefinitely
– Can also lose this status
• Abandoning residence– Staying out of the US for 6-12 month
period (with exceptions)
• Criminal convictions
– Retain citizenship of home country
© Stone Grzegorek & Gonzalez LLP, 2014
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Different Paths to Permanent Residence
• Family Relationships– Spouse, Parent, Adult Son/Daughter, Sibling
• Majority of Green Cards given in Family Category
• Investor Visas– $500,000 (Regional Center Investment Pool) to
$1,000,000 (own business) depending on investment
– Create jobs for 10 US workers– 2 year conditional residence
• Diversity Visa Program (“Lottery”)– Held every year – usually October to December
• Other (Asylum, Refugee, etc.)
© Stone Grzegorek & Gonzalez LLP, 2014
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Necessity of Planning Ahead
If you plan on staying in the United States long-term, need to plan ahead
It can take from 1.5 to 4+ years to obtain Permanent Residence depending on the preference category and your place of birtho Some nationalities such as India and China have
longer wait• We will discuss why a longer wait for certain
people later in this talk when we look at the Visa Bulletin
Can have H-1B status for 6 years, but more time is possible IF your green card application is filed before you enter the 5th year
© Stone Grzegorek & Gonzalez LLP, 2014
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Strategic Planning
Save immigration documents and build documentation for a future case
Making a “green card” foldero Copies of old passports, Forms I-20, DS-2019, etc.o University Degrees, transcripts and translations
into Englisho Biographical Documents
• Birth, marriage, divorce certificates, birth certificates of your children plus translations into English
o Documentation for Self-Sponsored Employment Preference Categories• We will discuss in detail for the remainder of this talk
Employment Based Green Card Categories
Employment Based1st Preference(EB-1)
1. Extraordinary Ability (can be self-petitioning)2. Outstanding Professor/Researcher (employer sponsored)
Employment Based2nd Preference (EB-2)
1. Advanced Degree (labor certification required—employer sponsored)2. National Interest Waiver (no labor certification required—can be self-petitioning)
Employment Based3rd Preference (EB-3)
Bachelor’s Degree“Skilled worker”
© Stone Grzegorek & Gonzalez LLP, 2014
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When Should You Consider Self-Sponsorship
If an employer is unwilling to sponsor you since the job is temporaryo Employer sponsored categories require a permanent job
offer
You do not want to be tied to the employer for a certain length of timeo It can take 1.5 or more years to process permanent
residence
The employer is new or future unstableo Can be an issue with startups
Payment of Fees – Employer unwilling to payo Some categories such as those involving labor certification
require the employer to pay legal fees
© Stone Grzegorek & Gonzalez LLP, 2014
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First Preference – Extraordinary Ability
Level of expertise indicating that the person is one of the small percentage who has arisen to the very top of the field of endeavoro Narrow the field
• Not just Astrophysicist – Astrophysicist in Cosmic Microwave Background
o Helpful to be at least a few years out from Ph.D. and not a recent graduate
Will continue work in the area of extraordinary ability
Work will substantially benefit prospectively the United States
Sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation
© Stone Grzegorek & Gonzalez LLP, 2014
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At Least 3 of the Following Categories Must Be Documented:
Receipt of major prizes or awardso Include only awards given during your professional
career, awards given while you were a student are not recognized for immigration purposes
Evidence of membership in associations that require outstanding achievemento Include associations where you are invited to be a
member or there are some distinguishing criteria for membership based on your standing in the field • Good – National Academy of Sciences• Bad – those that only require a fee for
membership or a degree IEEE, American Physical Society, etc.
© Stone Grzegorek & Gonzalez LLP, 2014
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Extraordinary Ability Criteria - Continued
Published material in professional publications written by others about your worko Citations do not count here, but, if you were quoted
and/or featured in either trade or general publications in the US or abroad
o TV interviews, other press
Evidence of your participation as a judge of the work of others o Referee on Journal Articles
• Asked you specifically – not your advisor• Other editorial work (Assistant Editor)
o Committees on grant proposalso Conference organizing committeeso Telescope Allocation committees
© Stone Grzegorek & Gonzalez LLP, 2014
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Extraordinary Ability Criteria - Continued
Evidence of original scientific researcho Citation Index
• Times cited• Impact factor of journal
Can also describe journal rankingo Physical Review Letters is the 9th
highest ranked journal in the field of physics and astronomy out of 210 journals
• Important articles that cited your worko Patents
• Include whether provisional, full, US or international
• Indicate if it is being applied commerciallyo Principal or Co-Principal Investigatoro Talks, particularly invited talkso Measurements such as h-factor
© Stone Grzegorek & Gonzalez LLP, 2014
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“Big Science” and Documenting Specific Scientific Contributions
Issue with both Extraordinary Ability and NIW petitions is the role of an individual within a large science project
o Explain the project, goals, budget, participants, etc.
o Describe the “Job” versus the “Role” within the project
o Describe how publication of results is handled
o JPL/NASA awards
© Stone Grzegorek & Gonzalez LLP, 2014
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Extraordinary Ability Criteria - Continued
Testimony from scholars or public figures regarding your contributions
• Letters from the US and abroad, academia, industry and/or government research institutions
• People with whom you have collaborated and people with whom you have no connection
• Letters do not need to be of recent date, you can gather letters now even if you won’t be filing the case for a few years
• CV of letter writer is helpful
© Stone Grzegorek & Gonzalez LLP, 2014
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Extraordinary Ability Criteria - Continued
Authorship of scholarly books or articles in the field
o Articles• Explain how authors are listed for
particular field
o Books or chapters in books
o Abstracts and conference proceedings given less weight
© Stone Grzegorek & Gonzalez LLP, 2014
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Second Preference – National Interest Waiver
The normal requirement of an approved labor certification may be waived if it can be demonstrated that it would be in the national interest to do soo Saves much time and allows self-sponsorship
Must have Masters or Ph.D.o A few exceptions for those with much experience
Work must be in the National Interest such as:o Improving the U.S. economyo Improving health careo Improving the environment of the U.S. and making more
productive use of natural resourceso Involving a request from an interested U.S. government
agency
© Stone Grzegorek & Gonzalez LLP, 2014
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Extensive Documentation Required
Documentation would include everything for the First Preference plus evidence that:
o Requiring a labor certification is against the national interest
o Your research is of substantial intrinsic merit• Must show your work individually is of merit
– not just a member of a group that has merit
o Your work is national in scope
© Stone Grzegorek & Gonzalez LLP, 2014
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Requiring a labor certification is against the national interest
Congress created the national interest waiver in order to address the limitations of the labor certification processo The labor certification process serves the
national interest by protecting United States jobs and preventing foreign nationals from immigrating where there is a willing, able, and minimally qualified United States worker. However:• There are foreign nationals who provide unique
and substantial benefits to an entire field of endeavor above and beyond what could reasonably be expected as part of “the job”
• Certain positions, especially those in the science and engineering fields, clearly emphasize national contributions and demand the best and most qualified applicants
© Stone Grzegorek & Gonzalez LLP, 2014
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Requiring a labor certification is contrary to the national interest because…
Time Constraints• The labor certification process is long
Demonstrate participation in the labor certification process would result in great expenditure and loss of time to train a new employee for the position who is unlikely to be familiar with the projects already being conducted
Difficult or Impossible to Quantify Skills and Experienceo Qualities that are extremely rare, due to the specialized
nature of researcho Combination of skills/experience is rare
• For example: The work requires the melding of modeling expertise, and data analysis paired with outstanding software engineering skills
Security Issueso Any special considerations such as advancing the
research is hampered by security clearance requirements
© Stone Grzegorek & Gonzalez LLP, 2014
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Substantial Intrinsic Merit
Defining substantial intrinsic merito Research that is inherently beneficial
Demonstrating your research is of substantial intrinsic merito Describe the research in detail for a general
audience• Use simple to understand graphs, photos, etc.
JPL has some stunning and breathtaking photos!
Focus on the proposed employment and not just qualifications and past worko This is particularly important with entrepreneurs
© Stone Grzegorek & Gonzalez LLP, 2014
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National in Scope
Research is of national or international impacto Not just a local problem
Fundingo Can show the backing of an interested
government agency to demonstrate national importance
Government sponsored studies regarding targeted research areas
© Stone Grzegorek & Gonzalez LLP, 2014
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What Category, Extraordinary Ability (EB-1) or National Interest Waiver (EB-2)?
Visa Backlogo If India or China national, want to file under EB-1
given significant backlog in EB-2
Timing Issueso Processing times for both categories are at least 4 –
6 months• Can premium process (an extra $1,225) an EB-1
but not an NIW
Strength of Evidenceo NIW standard is slightly lower, “some impact on the
field as a whole,” while EB-1 is “major significance to the field”
© Stone Grzegorek & Gonzalez LLP, 2014
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Applying in More Than One Category
You can apply under more than one category, the documentation is similar
If unsure, what category, or, applying in both, ask letter writers to cover both extraordinary ability and why your work is in the national interest
© Stone Grzegorek & Gonzalez LLP, 2014
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Timeline for Entire Permanent Residence Process
Form I-140 petitiono Approximately 2 weeks to 6+ months
• Add in time if a Request for Evidence (RFE) is issued
Can require a simple or complex response
Adjustment of Status o Approximately 4-6+ months
• Can file adjustment concurrently with I-140 Petition to save time
However, if I-140 is denied, then I-485 is denied
© Stone Grzegorek & Gonzalez LLP, 2014
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First Step – File I-140 Petition
Decision
o Approval
o Request for Further Evidence (RFE)• USCIS may request further documentation or
clarification on certain points before it will make a decision
o Denial• Does not bar future applications, however, it does
need to be listed on the future application You should show that there is new
documentation, new research, etc. that was not available for the first petition
© Stone Grzegorek & Gonzalez LLP, 2014
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Second Step – Adjustment of Status
Adjustment of Status
o Can also file for employment authorization document (EAD) and travel document (advance parole) for you, as well as your spouse and children
o Usually takes 4+ months
o Medical exam and potential interview can be done where you live in the US
© Stone Grzegorek & Gonzalez LLP, 2014
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Variables in Processing Times
Visa Bulletin – Visa Quota System
Security Clearances and Background Checks
Family Situations
USCIS dependent variableso Depending on numerous outside factors such
as legislation, USCIS workloads, etc. case processing times can vary
© Stone Grzegorek & Gonzalez LLP, 2014
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Approval/Denial Rates
Approval Rates for I-140 Petitions in the Extraordinary Ability Category is 62% (most recent year available)o The numbers include cases that aren’t comparable
such as cases in business, arts, etc.
If your case is weako Wait until you have more experience, research
results, etc.o Find an employer
• Generally, an employer sponsored petition would have a better chance of success than a self-sponsored petition because of lower standard (extraordinary ability v. outstanding researcher that has a 91% approval rate)
© Stone Grzegorek & Gonzalez LLP, 2014
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Family Situation
Spouse and unmarried children under 21 years are included in your case
o However, if you marry after receiving permanent residence, wait list for spouse is approximately 2+ years
Same sex spouses now allowed to obtain permanent residence through spouse
© Stone Grzegorek & Gonzalez LLP, 2014
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Entrepreneurs
No “entrepreneur” category of immigration
No neat fit in law for entrepreneurs; perception is that administration of immigration laws is in hands of enforcement first bureaucracy, and advancement of entrepreneurship is not a priority
Insufficient immigrant visa allocation causes severe backlog and leads to “Brain Drain”o Likely only a small number in backlog would
qualify for an entrepreneur visa
© Stone Grzegorek & Gonzalez LLP, 2014
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Potential Legislation Targeted at Entrepreneurs - Elements
“Qualified entrepreneur”o Has a significant ownership interest in a US businesso Senior executive position in a US businesso Had a substantial role as founder or in development of
the businesso Presents a business plan with the petition
Past 2 years in non-immigrant status
Business created specific number of jobs (4-5), and
Validation investment of a specific amount ($500,000) or business had a specific revenue past 2 years)
© Stone Grzegorek & Gonzalez LLP, 2014
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How Much Does it Cost?
Immigration attorneys charge either on a fixed fee basis or based on the amount of time spent on the case
Balance costs against the reputation of the law firm and its track record
Many employers will pay immigration fees or part of the fees
Government Filing Feeso I-140 Petition $580
• Additional $1,225 for premium processing (EB-1)
o I-485 Application $1,070
© Stone Grzegorek & Gonzalez LLP, 2014
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Questions
Disclaimer:This presentation is for general education purposes onlyand is not intended as legal advice. Questions about specificimmigration matters should be presented in confidence to aqualified immigration attorney.