Immigration Optionsfor Post-Docs and

Scientists

Klasko, Rulon, Stock & Seltzer, LLP

Suzanne B. Seltzer

Philadelphia - New York

Immigration Opportunities

Agenda H-1B Quota J-1 Waivers The O-1 Visa Permanent Residence Status Q&As

H-1b Quota

What is it and what does it mean? Who is not subject to the quota?

Universities Nonprofit institutions affiliated with universities Employed “at” university Nonprofit or government research organization Previous H-1B under cap Concurrent employment

Cap Exempt to Cap Subject

J-1 Visa

Who is subject to 2-year return? Exchange Visitor Skills List

Right Skill? Right List?

Government Funding U.S. or Home Country Direct or Indirect

Graduate Medical Training

What Does it Mean to be Subject

Ineligible for Certain Visas H-1B L-1 K

Ineligible to apply for final step of Green Card I-485 IV Consular Processing But may commence initial steps…

If Subject, Are there Options?

Return home Where is home? Aggregating trips

Apply for a Waiver Obtain an O-1 Visa

Requires an employer willing to sponsor Must Demonstrate “Outstanding” in field

J-1 Waiver Options

Waiver options Hardship Persecution No objection waiver Federal government agency waiver

Health & Human Services National Science Foundation Department of Energy Other IGA

O-1 – Alien of Extraordinary Ability

Factors Considered in Initial Evaluation 1st authored articles/impact factors Citations to 1st authored work Conference presentations Book Chapters/review articles Peer reviewer/manuscript reviewer

O-1 (cont’d)

What’s Included in the Petition Reference letters

Independent referees Addressing O-1 criteria

Corroborating Documentation Processing time/issues Length of approval Extensions

What is Permanent Residency?

Authorization to Live & Work Indefinitely in the United States

“Immigrant Visa” The “Green Card” or “Form I-551” Not always ‘forever’ – may be abandoned

or taken away

Immigrant vs Non-Immigrant Visas Immigrant Visa

Green Card/Permanent Residency

Non-Immigrant Visa (NIV) H, F, J, O, etc Limited duration Specific to employer/institution Specific to purpose (work/study/tourism)

How Do I Apply?

Family Investment Asylum Employment DV Lottery

Permanent Residency Quotas

Annual Limit on Permanent Residency Per Country Limit – 7% Allocated by:

Priority Date – place in line Preference Category

Permanent Residency Quotas Employment Based Preferences

First Preference (EB-1) Extraordinary Ability, Outstanding Researcher,

Multinational Executive

Second Preference (EB-2) Nat’l Interest Waivers, Advanced Degreed Professionals,

Bachelors plus 5 years exp.

Third Preference (EB-3) Skilled Worker (2+ years experience), Bachelor’s

Degree

Permanent Residency Quotas, Where Are We Now?Visa Bulletin for November 2011

EmploymentBased

All Charge-ability Areas Except Those

Listed

CHINA- mainland

bornINDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01NOV07 01NOV07 C C

3rd 22DEC05 22AUG04 22JUL02 22DEC05 22DEC05

Other Workers* 15NOV05 22APR03 15JUN02 15NOV05 15NOV05

4th C C C C C

Certain Religious Workers

C C C C C

5th     Targeted Employment

Areas/Regional

Centers and Pilot

Programs

C C C C C

Permanent Residency Quotas,Where are We Now? “Oversubscribed” versus “Available”

Available if: Visa Bulletin indicates “C” = current Priority date earlier than posted date

Predictions from State Department for FY2012 EB-1 approvals are down almost 50% This will advance EB-2 in China or India China EB-3 will advance a little; India EB-3 not at all

Employment Based (EB) Permanent Residency

Employer-sponsored or self-sponsored Labor certification or extraordinary/national

interest/exceptional Multiple petitions Multi-Step Process Non-Immigrant Status?

Employment Based (EB) Permanent Residency: EB-1Extraordinary Ability/EB-1 (I-140, filing fee $580)

“One of a Few at the Top” ‘Self-Petition’ – no need for employer sponsor Factors Considered in Initial Evaluation

1st authored articles/impact factors Citations to 1st authored work Conference Presentations Peer Review/Manuscript Review Work References from independent Experts Documenting Regulatory Criteria

Preparation/Processing Times

Employment Based: EB-1 (cont’d)

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

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?

New EB-1 Guidance (cont’d)

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

Employment Based: EB-2

National Interest Waiver/EB-2 (I-140, filing fee $580)

Self-Petition, no employer sponsor req’d Three Prong Test

Field is of Substantial Intrinsic Merit National Impact of Your Contributions You Are “Substantially Better” Than Your Peers

Preparation/Processing Times India/China backlog

Employment Based: Employer Sponsored

Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps

2nd Step – I-140 3rd Step – I-485 or IV Consular Process

No filing fee for this step

(cont’d)

Permanent Resident StatusAdjustment of Status (I-485) Timing

Preference categories/quotas Priority dates Processing times

Concurrent filing (I-140/I-485) I-485 filing fee $1070, includes:

Employment authorization (I-765) Advance parole (I-131)

Permanent Resident StatusAdjustment of Status (I-485)

Adjustment portability H-1B Extensions

One Year Three years

Spouses

(cont’d)

Issues Relating to NIV Status During Permanent Residency Process

Travel Extensions of Status Dependents Eligibility for OPT

Questions

Any Questions?

Contact Information

Suzanne B. Seltzer, Esq. Telephone: 212-796-8840

Fax: 212-297-1799

Email: sseltzer@klaskolaw.com

Websites: www.klaskolaw.com

www.eb1immigration.com

www.eb5immigration.com