Upload
ashley-walton
View
217
Download
2
Embed Size (px)
Citation preview
Immigration Opportunities
for Clinicians and Researchers
Klasko, Rulon, Stock & Seltzer, LLP
Suzanne B. Seltzer
Philadelphia – New York
Suzanne B. Seltzer, Esq.
Suzanne Seltzer is a partner of Klasko, Rulon, Stock & Seltzer LLP. Ms. Seltzer is the Chair of the American Immigration Lawyer's Association (AILA) Service Center Operations Committee, having recently completed her tenure as the USCIS Benefits & Policy Liaison. Ms. Seltzer speaks and writes extensively on visa options for scientists and researchers.
She is listed in Best Lawyers in America, Chambers USA, New York SuperLawyers, and the International Who's Who of Corporate Immigration Lawyers.
A magna cum laude graduate of the University of Pennsylvania, Ms. Seltzer received her law degree from Georgetown University’s Law Center (cum laude).
Immigration OpportunitiesPart I: Pathways to
Permanent Residency
What is Permanent Residence Permanent Residence Quotas Employment Based Permanent Residence
Self Petitions Employer Sponsored
Adjustment of Status - Maintenance of status
For more information, visit www.eb1immigration.com
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
For more information, visit www.eb1immigration.com
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)
For more information, visit www.eb1immigration.com
Nonimmigrant to Immigrant
F-1 – attend school
F-1 OPT – start work
H-1B/L-1 – continue working; max 6 years total in H status
H-1B – change employer, continues to
count against 6 years maximum
For more information, visit www.eb1immigration.com
Nonimmigrant to Immigrant
H-1B – change employer, requires new petition may start working under ‘H-1B portability’
4th Year H-1B status – start thinking about LPR
maintain NIV status until LPR
6 years in H-1B, other options? Eligible to file adjustment of status?
For more information, visit www.eb1immigration.com
J-1 Nonimmigrant to LPR
J-1 two year home requirement
O-1
waiver fulfill two years
clinical all other apply LPR
3 years H-1B
For more information, visit www.eb1immigration.com
How Do I Apply?
Family Investment Asylum Employment DV Lottery
For more information, visit www.eb1immigration.com
Permanent Residence Quotas
Annual Limit on Permanent Residence Per Country Limit – 7% Allocated by Dept of State (DOS) based on:
Priority Date – place in line Preference Category
For more information, visit www.eb1immigration.com
Permanent Residence Quotas
Employment Based Preferences First Preference (EB-1)
Extraordinary Ability Outstanding Researcher Multinational Executive
For more information, visit www.eb1immigration.com
Permanent Residence Quotas
Second Preference (EB-2) Advanced Degree Professionals
Position must require advanced degree Bachelors plus 5 yrs exp is equivalent
Aliens of Exceptional Ability In lieu of advanced degree Much lower standard than EB-1
PERM or National Interest Waiver
For more information, visit www.eb1immigration.com
Permanent Residency Quotas, Where Are We Now?Visa Bulletin for November 2012
EmploymentBased
All Charge-ability Areas Except Those
Listed
CHINA- mainland
bornINDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01SEP07 01SEP04 C C
3rd 22NOV06 15APR06 22OCT02 22NOV06 08AUG06
Other Workers* 22NOV06 01JUL03 22OCT02 22NOV06 08AUG06
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” Oversubscribed if:
Cut-off date indicated in chart Priority date must be earlier than posted date
Available if: Visa Bulletin indicates “C” = current
For more information, visit www.eb1immigration.com
Permanent Residence Quotas
Predictions from DOS for FY2013 EB-1 usage is extremely high, so numbers are
not dropping down into EB-2 EB-2 India will remain in 2006 for some time EB-2 worldwide may ‘retrogress’ towards the
end of FY2013 EB-3 will continue to move forward slowly
For more information, visit www.eb1immigration.com
Employment Based (EB) Permanent Residence
Employer-sponsored or self-sponsored Multiple petitions Multi-Step Process
PERM – filed with Department of Labor I-140 – Petition for Immigrant Worker (eligibility) I-485 – Register for Permanent Residence
(requires visa number)
For more information, visit www.eb1immigration.com
Employment Based (EB) Permanent Residence: EB-1
Extraordinary 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
For more information, visit www.eb1immigration.com
EB-1 Self Petition (cont’d)
Factors considered (cont’d)
References from Independent Experts Demonstrates your reputation Translates your work to a lay adjudicator
Important to document claimsMust meet at least 3 out of 10
regulatory criteria Preparation/Processing Times
For more information, visit www.eb1immigration.com
EB-1 Employer Sponsored Outstanding Researcher/EB-1 (I-140, $580)
Similar to Extraordinary Ability Must meet 2 out of 6 regulatory criteria ‘Internationally Recognized’ as Outstanding At least 3 Years post-grad experience
Time spent towards advanced degree can count only if graduate work is recognized as outstanding
For more information, visit www.eb1immigration.com
EB-1 Employer Sponsored
Requires employer sponsor Requires permanent job offer Qualified Employers:
Academic Institutions Industry
At least 3 FT researchers Recognition in field
For more information, visit www.eb1immigration.com
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.eb1immigration.com
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
For more information, visit www.eb1immigration.com
Employment Based: EB-2 National Interest Waiver/EB-2 (I-140, $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
Past Record of Achievement! Quota backlogs
For more information, visit www.eb1immigration.com
EB-2 Self-Petition (cont’d) Physician Shortage Area NIW – EB-2
Self-Petition 5 Yr Commitment to Federally
Designated Area State Department of Public Health must
concur Will not get green card until 5 year
service is complete
For more information, visit www.eb1immigration.com
EB-2 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)
For more information, visit www.eb1immigration.com
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)
For more information, visit www.eb1immigration.com
Employment Based: Employer Sponsored
Special Handling (PERM) Positions that involve classroom teaching Recruitment – National Professional Journal
one print ad, or 30 day internet posting
‘Best Qualified’ Standard Must be filed within 18 months of selection
(cont’d)
For more information, visit www.eb1immigration.com
Special Handling (cont’d)
Prevailing wage First of 3 steps
2nd Step – I-140 3rd Step – I-485 or IV Consular Process
No filing fee for this step
For more information, visit www.eb1immigration.com
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)
For more information, visit www.eb1immigration.com
Permanent Resident StatusAdjustment of Status (I-485)
Adjustment portability H-1B Extensions
One Year Three years
Spouses
(cont’d)
For more information, visit www.eb1immigration.com
Issues Relating to NIV Status
During Permanent Residency Process
Important to Maintain NIV status Travel Extensions of Status Dependents
For more information, visit www.eb1immigration.com
Immigration Opportunities
Part II: J-1 Waivers & Options
Understanding J-1 two year rule Who is Subject What Does it Mean to be Subject Options if Subject
J-1 Waivers Research based Clinical based
The O-1 Visa as a bridge to a waiverFor more information, visit www.eb1immigration.com
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
For more information, visit www.eb1immigration.com
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…
For more information, visit www.eb1immigration.com
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
For more information, visit www.eb1immigration.com
J-1 Waiver Options
Waiver options Hardship Persecution No objection waiver (researchers
only)
For more information, visit www.eb1immigration.com
J-1 Waiver Options
Federal government agency waiver National Science Foundation Department of Energy Health & Human Services U.S. Dep’t of Veteran’s Affairs Appalachian Regional Commission Delta Regional Authority waiver
State 30 waiver (clinical only)
For more information, visit www.eb1immigration.com
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
For more information, visit www.eb1immigration.com
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
For more information, visit www.eb1immigration.com
Materials
Please visit www.klaskolaw.com to download this PowerPoint presentation and relevant articles.
For more information, visit www.eb1immigration.com
Questions?
For more information, visit www.eb1immigration.com
Contact Information
Suzanne B. Seltzer, Esq.
Telephone: 212-796-8840
Fax: 212-297-1799
Email: [email protected]
Websites: www.eb1immigration.com
www.klaskolaw.com
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 © 2012 Klasko, Rulon, Stock & Seltzer, LLP.
All rights reserved.
Copyright © 2012 All rights reserved.