Presentation on theme: "Klasko Immigration Law Partners, LLP"— Presentation transcript:
1 Klasko Immigration Law Partners, LLP J-1 Waiversfor AcademicsLisa T. Felix, Esq. | Michelle T. Kobler, Esq.Klasko Immigration Law Partners, LLPPhiladelphia 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 DOSVisa, DS 2019, advisory opinion not determinativeOnly subject if:Skills listGovernment financingGraduate medical education or training
5 Who needs a waiver? Skills list advocacy (cont’d)Skills list advocacyCountry of citizenship or country of last residenceCountry of last residence vs. country of last permanent residenceProving different skills list categoryEffect of new country of citizenship“Impossibility” of fulfillment argument
6 Who needs a waiver? Government financing advocacy (cont’d)Government financing advocacyMust be during J statusIndirect government financingFunds earmarked for exchange program
7 Who needs a waiver? Medical Doctors Not subject if: (cont’d)Medical DoctorsNot subject if:Not in the U.S. for medical education or trainingObservation, consultation, teaching or research with incidental patient care under direct supervision of U.S. doctorECFMG research fellowship
8 Visa Options Without Needing Waiver Anything other than H or L visa or change of statusO-1, TN-1, F-1, E-3 = okCanadian doctor H-1B visa-exempt entry = ok?Change of status from F-1 (or other) to H-1B = okLabor certification and I-140 can be approvedDS230 can be filedI-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 relativesPersecutionInterested government agency
11 No Objection Statement Quickest and easiest waiverUsually not helpful if U.S. or international organization fundingResearchers onlyAttitudes of different countries
12 No Objection Statement Process File DS-3035 online and pay feeRequest home government statement (each country’s process is different). Statement is sent directly to DOSWhen DOS recommends, they forward to USCISUSCIS issues approval
13 Exceptional Hardship Waiver Hardship to U.S. citizen or LPR spouse or childHardship must be “exceptional”Very difficult standard
14 Persecution WaiverIndividualized persecutionSimilar to asylum
15 Interested Government Agency Waivers Research trackClinical track
16 IGA Research WaiversUsually limited to agency contracts, grants or research programsExamples include NSF, DOD, NASA, DOEPeer review process – unlike USCIS filingsPractice 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 fundedEssentiality and uniqueness of foreign nationalRecruitment (unavailability of U.S. researchers)Future of program and future of foreign nationalBench research (at least 30 hours per week) vs. clinical researchExcellence of foreign national’s research
18 HHS Research Waivers Technically focused (cont’d)Technically focusedInvolvement of NIH scientists familiar with the researchReconsideration of denialsImpact of Fulbright fundingTiming
19 Clinical Waivers Choosing state vs. federal agency Choosing between statesCannot file more than oneHPSA 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 MUAExcept FLEX 10Agree to begin employment within 90 days of receiving waiverCan delay if still in training programCan expedite by filing H-1B before CIS approves waiver
21 Other Federal Government Agency Clinical Waivers Issues in common40 hours in HPSA or MUAExcept VAPrimary careGeneral practice, family practice, internal medicine, psychiatry, pediatrics, OBGYNExcept 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 residencyLimited to rural health clinics, certain native American facilities and HRSA-grant health centersVery long process – not user friendly
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