immigration options for scholars and researchers thursday, november 12, 2015 andrew j. zeltner, esq....

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

http://www.jefferson.edu/



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.


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


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



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



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



Quota-Exempt Employment

Who is not subject to the quota?UniversitiesNonprofit institutions affiliated with universitiesEmployed “at” universityNonprofit or government research organizationConcurrent employmentPrevious H-1B



Travel and Status Issuesfor H-1B Approvals

Change of status vs. consular visa issuance Travel after April 1 Maintaining status until October 1



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



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



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)



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)



Fulfilling Two-Year Return Requirement

Return to country of nationality or last residence?

Can fulfill sequentially



J-1 Waiver Options

No objection statement Exceptional hardship Persecution Interested government agency



No Objection Statement

Researchers only Usually not helpful if U.S. or international

organization funding Quickest and easiest waiver Attitudes of different countries



Exceptional Hardship Waiver

Hardship to U.S. citizen or LPR spouse or child Hardship must be “exceptional” Very difficult



Persecution Waiver

Individualized persecution Similar to asylum



Interested Government Agency Waivers

Research trackUsually through HHS

Peer review process – unlike CIS filings



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



HHS Waivers

Other Issues Involvement of NIH scientists familiar with

the research

Impact of Fulbright funding

Timing


(cont’d)


Other Medical Research Waivers

Usually limited to agency contracts, grants or research programs

Examples include DOD, NASA, DOE and DOI



O-1 Visas

Employer sponsored Standards Documentation Reference letters Processing time/issues Length of approval Extensions Spouses



Permanent Residence

Employer-sponsored, family-sponsored or self-sponsored

Quotas/timing issues Impact on visa status Impact on family Impact on travel



Permanent Resident Status

Family Investment Asylum Lottery Employment



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



Investment

$500,000 or $1,000,000

Individual investment or regional center



Asylum

Individualized fear of persecution

Race, religion, nationality, political opinion, social group, sexual persuasion



Lottery

Only specified countries

One year window

www.travel.state.gov

Effect of application on future visa applications



Permanent Resident StatusEmployment

Employer-sponsored or self-sponsored Labor certification or

extraordinary/national interest/exceptional

Multiple petitionsFor more information, visit www.klaskolaw.com



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


(cont’d)



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


(cont’d)


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



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


(cont’d)



National Interest Waiver EB-2 Standard

Exceptional ability or advanced degree National priority National impact

Extensive documentation required Reference letters critical


(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

(cont’d)


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



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)


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

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


(cont’d)



Other Factors Not a peer review process

Importance of job title?

Importance of employer sponsorship?

File now, or wait?


(cont’d)



Labor Certification Application (PERM)Employer sponsored – employer must payRecruitmentPrevailing wageLegal issuesTimingFirst of 3 stepsFor more information, visit www.klaskolaw.com

(cont’d)



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)



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)



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)


(cont’d)



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


(cont’d)


Materials

Please visit www.klaskolaw.com to download this PowerPoint presentation and relevant articles.



Questions ?




[email protected]

215.825.8600


Philadelphia New York Chicago

For Further Information


www.klaskolaw.com

www.eb1immigration.com

www.worksite-compliance.com

www.eb5immigration.com

http://blog.klaskolaw.com

online


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.

immigration options for scholars and researchers thursday, november 12, 2015 andrew j. zeltner, esq....

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