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Klasko Immigration Law Partners, LLP

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1 Klasko Immigration Law Partners, LLP
J-1 Waivers for Academics Lisa T. Felix, Esq. | Michelle T. Kobler, Esq. Klasko Immigration Law Partners, LLP Philadelphia  New York  Chicago

2 Lisa T. Felix, Esq. Lisa Felix represents corporate and educational clients who seek to hire or transfer foreign employees, as well as foreign individuals seeking employment in the United States. She advises employers on immigration compliance, responding to government investigations, and immigration strategy and planning. Before practicing as an attorney, Lisa worked extensively in higher education, providing immigration services to students, faculty, researchers, and administrators at the University of Pennsylvania, the State University of New York at Buffalo, and at Southern Illinois University–Carbondale’s branch campus in Niigata, Japan. Lisa is an active member of the American Immigration Lawyers Association, where she has served as co-chair of the AILA Philadelphia Chapter's Pro Bono Committee, and on the organizing committee of the chapter’s annual conference. Lisa is a returning member of NAFSA: Association of International Educators. Lisa is a 2005 graduate of Temple University’s Beasley School of Law.

3 Michelle T. Kobler, Esq. Michelle Kobler is an Associate in the Firm’s Philadelphia office, and focuses her practice on both employment-based and family-based immigration. A graduate of Wellesley College (B.A., 2006), Michelle received her law degree from the George Washington University Law School (J.D., with Honors, 2011). Michelle is currently admitted to practice in New York and Massachusetts and is a member of the American Immigration Lawyers Association. She has experience representing clients before Immigration Court and the Citizenship and Immigration Services.

4 Who needs a waiver? Who decides about the 2 year return requirement?
USCIS – not DOS Visa, DS 2019, advisory opinion not determinative Only subject if: Skills list Government financing Graduate medical education or training

5 Who needs a waiver? Skills list advocacy
(cont’d) 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 “Impossibility” of fulfillment argument

6 Who needs a waiver? Government financing advocacy
(cont’d) Government financing advocacy Must be during J status Indirect government financing Funds earmarked for exchange program

7 Who needs a waiver? Medical Doctors Not subject if:
(cont’d) Medical Doctors Not subject if: Not in the U.S. for medical education or training Observation, consultation, teaching or research with incidental patient care under direct supervision of U.S. doctor ECFMG research fellowship

8 Visa Options Without Needing Waiver
Anything other than H or L visa or change of status O-1, TN-1, F-1, E-3 = ok Canadian doctor H-1B visa-exempt entry = ok? Change of status from F-1 (or other) to H-1B = ok Labor certification and I-140 can be approved DS230 can be filed I-485 cannot be filed (except clinical NIW)

9 Fulfilling the Two-Year Return Requirement
Return to country of nationality or last residence? Can be fulfilled in smaller segments

10 J-1 Waiver Types No objection statement
Exceptional hardship to qualifying relatives Persecution Interested government agency

11 No Objection Statement
Quickest and easiest waiver Usually not helpful if U.S. or international organization funding Researchers only Attitudes of different countries

12 No Objection Statement Process
File DS-3035 online and pay fee Request home government statement (each country’s process is different). Statement is sent directly to DOS When DOS recommends, they forward to USCIS USCIS issues approval

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

14 Persecution Waiver Individualized persecution Similar to asylum

15 Interested Government Agency Waivers
Research track Clinical track

16 IGA Research Waivers Usually limited to agency contracts, grants or research programs Examples include NSF, DOD, NASA, DOE Peer review process – unlike USCIS filings Practice Pointer: Ask about these implications and/or waiver support before applying for or accepting funding

17 HHS Research Waivers Key Issues Importance of research program
Does not have to be NIH funded Essentiality and uniqueness of foreign national Recruitment (unavailability of U.S. researchers) Future of program and future of foreign national Bench research (at least 30 hours per week) vs. clinical research Excellence of foreign national’s research

18 HHS Research Waivers Technically focused
(cont’d) Technically focused Involvement of NIH scientists familiar with the research Reconsideration of denials Impact of Fulbright funding Timing

19 Clinical Waivers Choosing state vs. federal agency
Choosing between states Cannot file more than one HPSA or MUA or FLEX 10 or V.A. Must be 3 years in H-1B “Extraordinary circumstances” to change employers

20 Conrad 30 Waivers Each state has different rules/applications
Must be HPSA or MUA Except FLEX 10 Agree to begin employment within 90 days of receiving waiver Can delay if still in training program Can expedite by filing H-1B before CIS approves waiver

21 Other Federal Government Agency Clinical Waivers
Issues in common 40 hours in HPSA or MUA Except VA Primary care General practice, family practice, internal medicine, psychiatry, pediatrics, OBGYN Except VA and DRA

22 HHS Clinical Waivers HPSA of 7 or higher Need state DOH support letter
Must file within 12 months of completion of primary care residency Limited to rural health clinics, certain native American facilities and HRSA-grant health centers Very long process – not user friendly

23 Questions?

24 For Further Information
Lisa T. Felix, Esq. Michelle T. Kobler, Esq.

25 online

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 © All rights reserved.

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