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Options For Filing A Self-Sponsored Petition For Permanent Residence Kathleen Grzegorek Certified Specialist in Immigration & Nationality Law Kathleen.

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Presentation on theme: "Options For Filing A Self-Sponsored Petition For Permanent Residence Kathleen Grzegorek Certified Specialist in Immigration & Nationality Law Kathleen."— Presentation transcript:

1 Options For Filing A Self-Sponsored Petition For Permanent Residence Kathleen Grzegorek Certified Specialist in Immigration & Nationality Law Kathleen Grzegorek Certified Specialist in Immigration & Nationality Law

2 Terminology – Permanent Residence  Lawful Permanent Residence (LPR) status o “Green Card” o Live and work in the US indefinitely o Can also lose this status Abandoning residence  Staying out of the US for 6-12 month period (with exceptions) Criminal convictions o Retain citizenship of home country 2 © Stone Grzegorek & Gonzalez LLP, 2014

3 Different Paths to Permanent Residence  Family Relationships o Spouse, Parent, Adult Son/Daughter, Sibling Majority of Green Cards given in Family Category  Investor Visas o $500,000 (Regional Center Investment Pool) to $1,000,000 (own business) depending on investment o Create jobs for 10 US workers o 2 year conditional residence  Diversity Visa Program (“Lottery”) o Held every year – usually October to December  Other (Asylum, Refugee, etc.) 3 © Stone Grzegorek & Gonzalez LLP, 2014

4 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 birth o 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 5 th year © Stone Grzegorek & Gonzalez LLP, 2014 4

5 Strategic Planning  Save immigration documents and build documentation for a future case  Making a “green card” folder o Copies of old passports, Forms I-20, DS-2019, etc. o University Degrees, transcripts and translations into English o 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 © Stone Grzegorek & Gonzalez LLP, 2014 5

6 Employment Based Green Card Categories Employment Based 1 st Preference (EB-1) 1. Extraordinary Ability (can be self-petitioning) 2. Outstanding Professor/Researcher (employer sponsored) Employment Based 2 nd Preference (EB-2) 1. Advanced Degree (labor certification required— employer sponsored) 2. National Interest Waiver (no labor certification required—can be self- petitioning) Employment Based 3 rd Preference (EB-3) Bachelor’s Degree “Skilled worker”

7 When Should You Consider Self-Sponsorship  If an employer is unwilling to sponsor you since the job is temporary o Employer sponsored categories require a permanent job offer  You do not want to be tied to the employer for a certain length of time o It can take 1.5 or more years to process permanent residence  The employer is new or future unstable o Can be an issue with startups  Payment of Fees – Employer unwilling to pay o Some categories such as those involving labor certification require the employer to pay legal fees © Stone Grzegorek & Gonzalez LLP, 2014 7

8 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 endeavor o 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 8

9 At Least 3 of the Following Categories Must Be Documented:  Receipt of major prizes or awards o 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 achievement o 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 9

10 Extraordinary Ability Criteria - Continued  Published material in professional publications written by others about your work o 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 proposals o Conference organizing committees o Telescope Allocation committees © Stone Grzegorek & Gonzalez LLP, 2014 10

11 Extraordinary Ability Criteria - Continued  Evidence of original scientific research o Citation Index Times cited Impact factor of journal  Can also describe journal ranking o Physical Review Letters is the 9 th highest ranked journal in the field of physics and astronomy out of 210 journals Important articles that cited your work o Patents Include whether provisional, full, US or international Indicate if it is being applied commercially o Principal or Co-Principal Investigator o Talks, particularly invited talks o Measurements such as h-factor © Stone Grzegorek & Gonzalez LLP, 2014 11

12 “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 12

13 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 13

14 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 14

15 Second Preference – National Interest Waiver 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 so o 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. economy o Improving health care o Improving the environment of the U.S. and making more productive use of natural resources o Involving a request from an interested U.S. government agency © Stone Grzegorek & Gonzalez LLP, 2014 15

16 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 16

17 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 process o 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 17

18 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 Experience o Qualities that are extremely rare, due to the specialized nature of research o 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 Issues o Any special considerations such as advancing the research is hampered by security clearance requirements © Stone Grzegorek & Gonzalez LLP, 2014 18

19 Substantial Intrinsic Merit  Defining substantial intrinsic merit o Research that is inherently beneficial  Demonstrating your research is of substantial intrinsic merit o 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 work o This is particularly important with entrepreneurs © Stone Grzegorek & Gonzalez LLP, 2014 19

20 National in Scope  Research is of national or international impact o Not just a local problem  Funding o 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 20

21 What Category, Extraordinary Ability (EB-1) or National Interest Waiver (EB-2)?  Visa Backlog o If India or China national, want to file under EB-1 given significant backlog in EB-2  Timing Issues o 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 Evidence o 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 21

22 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 22

23 Timeline for Entire Permanent Residence Process  Form I-140 petition o 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 23

24 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 24

25 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 25

26 Variables in Processing Times  Visa Bulletin – Visa Quota System  Security Clearances and Background Checks  Family Situations  USCIS dependent variables o Depending on numerous outside factors such as legislation, USCIS workloads, etc. case processing times can vary © Stone Grzegorek & Gonzalez LLP, 2014 26

27 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 weak o 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 27

28 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 28

29 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 29

30 Potential Legislation Targeted at Entrepreneurs - Elements  “Qualified entrepreneur” o Has a significant ownership interest in a US business o Senior executive position in a US business o Had a substantial role as founder or in development of the business o 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 30

31 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 Fees o I-140 Petition $580 Additional $1,225 for premium processing (EB-1) o I-485 Application $1,070 © Stone Grzegorek & Gonzalez LLP, 2014 31

32 Questions Disclaimer: This presentation is for general education purposes only and is not intended as legal advice. Questions about specific immigration matters should be presented in confidence to a qualified immigration attorney. 32 © Stone Grzegorek & Gonzalez LLP, 2014

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