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Immigration Opportunities for Clinicians and Researchers Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer Philadelphia – New York.

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Presentation on theme: "Immigration Opportunities for Clinicians and Researchers Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer Philadelphia – New York."— Presentation transcript:

1 Immigration Opportunities for Clinicians and Researchers Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer Philadelphia – New York

2 Immigration Opportunities Agenda Understanding J-1 two year rule J-1 Waivers The O-1 Visa Permanent Residence Status Q&As

3 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

4 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…

5 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

6 J-1 Waiver Options Waiver options Hardship Persecution No objection waiver (researchers only)

7 J-1 Waiver Options Federal government agency waiver National Science Foundation Department of Energy Health & Human Services U.S. Dept of Veterans Affairs Appalachian Regional Commission Delta Regional Authority waiver State 30 waiver (clinical only)

8 O-1 Alien of Extraordinary Ability Factors Considered in Initial Evaluation 1 st authored articles/impact factors Citations to 1 st authored work Conference presentations Book Chapters/review articles Peer reviewer/manuscript reviewer

9 O-1 (contd) Whats Included in the Petition Reference letters Independent referees Addressing O-1 criteria Corroborating Documentation Processing time/issues Length of approval Extensions

10 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

11 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)

12 How Do I Apply? Family Investment Asylum Employment DV Lottery

13 Permanent Residency Quotas Annual Limit on Permanent Residency Per Country Limit – 7% Allocated by: Priority Date – place in line Preference Category

14 Permanent Residency Quotas Employment Based Preferences First Preference (EB-1) Extraordinary Ability, Outstanding Researcher, Multinational Executive Second Preference (EB-2) Natl Interest Waivers, Advanced Degreed Professionals, Bachelors plus 5 years exp. Third Preference (EB-3) Skilled Worker (2+ years experience), Bachelors Degree

15 Permanent Residency Quotas, Where Are We Now? Visa Bulletin for November 2011 Employment Based All Charge- ability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1 st CCCCC 2 nd C01NOV07 CC 3 rd 22DEC0522AUG0422JUL0222DEC05 Other Workers* 15NOV0522APR0315JUN0215NOV05 4 th CCCCC Certain Religious Workers CCCCC 5 th Targeted Employment Areas/Regional Centers and Pilot Programs CCCCC

16 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

17 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?

18 Employment Based (EB) Permanent Residency: 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 1 st authored articles/impact factors Citations to 1 st authored work Conference Presentations Peer Review/Manuscript Review Work References from independent Experts Documenting Regulatory Criteria Preparation/Processing Times

19 Employment Based: EB-1 contd 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

20 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?

21 New EB-1 Guidance (contd) 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

22 Employment Based: EB-2 National Interest Waiver/EB-2 (I-140, filing fee $580) Self-Petition, no employer sponsor reqd 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

23 Employment Based: Employer Sponsored Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps 2 nd Step – I rd Step – I-485 or IV Consular Process No filing fee for this step (contd)

24 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 (contd)

25 Special Handling (contd) Prevailing wage First of 3 steps 2 nd Step – I rd Step – I-485 or IV Consular Process No filing fee for this step

26 Permanent Resident Status Adjustment 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)

27 Permanent Resident Status Adjustment of Status (I-485) Adjustment portability H-1B Extensions One Year Three years Spouses (contd)

28 Issues Relating to NIV Status During Permanent Residency Process Important to Maintain NIV status Travel Extensions of Status Dependents Eligibility for OPT

29 Questions?

30 Contact Information Suzanne B. Seltzer, Esq. Telephone: Fax: Websites:


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