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H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1601 Market Street, Suite 2600317 Madison Avenue, Suite 1518 Philadelphia,

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Presentation on theme: "H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1601 Market Street, Suite 2600317 Madison Avenue, Suite 1518 Philadelphia,"— Presentation transcript:

1 H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1601 Market Street, Suite Madison Avenue, Suite 1518 Philadelphia, PA 19103New York, NY Green Card Strategies for Researchers Friday, October 10, 2014

2 Klasko, Rulon, Stock & Seltzer, LLP H. Ronald Klasko, Esq. Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to universities for over 30 years. Ron is a past National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. His firm is the first immigration law firm global partner of NAFSA: Association of International Educators. Mr. Klasko has been invited by more than 30 universities and hospitals to address students and scholars. Ron has been selected as one of six top tier immigration lawyers in the US by Chambers Global and the firm has been selected as a top tier immigration law firm by U.S. News and World Report. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers Corporate Immigration Law edition selected Ron as one of the three “most highly regarded” immigration lawyers in the world from 2007 to He is a frequent author and lecturer on university-related immigration law topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School. Ron is a graduate of the University of Pennsylvania School of Law. He has helped thousands of students navigate the complicated process of obtaining working visas and green cards.

3 Klasko, Rulon, Stock & Seltzer, LLP Immigration Options for Scholars and Researchers Agenda H-1B Visas and Quota J-1 Visas and Waivers O-1 Visas Permanent Residence Status Q&As For more information, visit

4 Klasko, Rulon, Stock & Seltzer, LLP 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 Visas For more information, visit

5 Klasko, Rulon, Stock & Seltzer, LLP 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 For more information, visit

6 Klasko, Rulon, Stock & Seltzer, LLP Quota-Exempt Employment Who is not subject to the quota?  Universities  Nonprofit institutions affiliated with universities  Employed “at” university  Nonprofit or government research organization  Concurrent employment  Previous H-1B For more information, visit

7 Klasko, Rulon, Stock & Seltzer, LLP Recapture time out of U.S. 1 year extension if file labor certification application or immigrant petition one year before expiration 3 year extension if immigrant petition approved and quota backlog H-1B Extensions Beyond 6 Years For more information, visit

8 Klasko, Rulon, Stock & Seltzer, LLP 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  Waiver For more information, visit

9 Klasko, Rulon, Stock & Seltzer, LLP Avoiding Need for J-1 Waiver Medical Researchers  Who 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 For more information, visit

10 Klasko, Rulon, Stock & Seltzer, LLP 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) For more information, visit

11 Klasko, Rulon, Stock & Seltzer, LLP Avoiding Need for J-1 Waiver  Government financing advocacy Must be during J status Indirect government financing Funds earmarked for exchange program (cont’d) For more information, visit

12 Klasko, Rulon, Stock & Seltzer, LLP Visa Options Without Needing Waiver Anything other than H or L visa or change of status  O-1, TN-1, E-3 ok  Change of status from F-1 (or other) to H-1B ok  Labor certification and I-140 can be approved DS230 immigrant visa application can be filed I-485 cannot be filed For more information, visit

13 Klasko, Rulon, Stock & Seltzer, LLP Fulfilling Two-Year Return Requirement Return to country of nationality or last residence? Can fulfill sequentially For more information, visit

14 Klasko, Rulon, Stock & Seltzer, LLP J-1 Waiver Options No objection statement Exceptional hardship Persecution Interested government agency For more information, visit

15 Klasko, Rulon, Stock & Seltzer, LLP No Objection Statement Researchers only Usually not helpful if U.S. or international organization funding Quickest and easiest waiver Attitudes of different countries For more information, visit

16 Klasko, Rulon, Stock & Seltzer, LLP Exceptional Hardship Waiver Hardship to U.S. citizen or LPR spouse or child Hardship must be “exceptional” Very difficult For more information, visit

17 Klasko, Rulon, Stock & Seltzer, LLP Persecution Waiver Individualized persecution Similar to asylum For more information, visit

18 Klasko, Rulon, Stock & Seltzer, LLP Interested Government Agency Waivers Research track  Usually through HHS  Peer review process – unlike CIS filings For more information, visit

19 Klasko, Rulon, Stock & Seltzer, LLP HHS 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 For more information, visit

20 Klasko, Rulon, Stock & Seltzer, LLP HHS Waivers Other Issues  Involvement of NIH scientists familiar with the research  Impact of Fulbright funding  Timing (cont’d) For more information, visit

21 Klasko, Rulon, Stock & Seltzer, LLP Other Medical Research Waivers Usually limited to agency contracts, grants or research programs Examples include NSF, DOD, NASA, DOE and DOI For more information, visit

22 Klasko, Rulon, Stock & Seltzer, LLP Obtain an O-1 Visa Requires an employer willing to sponsor Must Demonstrate “Outstanding” in field Does not ‘waive’ the two years, just puts it off for awhile For more information, visit

23 Klasko, Rulon, Stock & Seltzer, LLP 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 For more information, visit

24 Klasko, Rulon, Stock & Seltzer, LLP O-1 (cont’d) What’s included in the petition  Reference letters Independent referees Addressing O-1 criteria  Corroborating documentation Processing time/issues Length of approval Extensions Spouses For more information, visit

25 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Family Investment Asylum Lottery Employment For more information, visit

26 Klasko, Rulon, Stock & Seltzer, LLP Spouse of U.S. citizen  No quota wait  EAD and AP within 3 months  Travel may result in loss of status unless H-1B All other relationships  Long quota wait  No interim benefits Family For more information, visit

27 Klasko, Rulon, Stock & Seltzer, LLP Investment $500,000 or $1,000,000 Individual investment or regional center For more information, visit

28 Klasko, Rulon, Stock & Seltzer, LLP Asylum Individualized fear of persecution Race, religion, nationality, political opinion, social group, sexual persuasion For more information, visit

29 Klasko, Rulon, Stock & Seltzer, LLP Lottery Only specified countries One year window Effect of application on future visa applications For more information, visit

30 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions For more information, visit

31 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Quotas  Visa Bulletin (www.travel.state.gov)  Per country of birth, per preference category, per fiscal year  Filing date is “priority date”  EB-1 (extraordinary ability, outstanding researcher) No quota wait (cont’d) For more information, visit

32 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Quotas  EB-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 India  EB-3 Labor certification requiring bachelors or 2 years experience Long quota wait for all countries (cont’d) For more information, visit

33 Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas, Where Are We Now? Visa Bulletin for October 2014 Employment Based All Charge- ability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1 st CCCCC 2 nd C15NOV0901MAY09CC 3 rd 01OCT1101APR0915NOV0301OCT11 Other Workers* 01OCT1122JUL0515NOV0301OCT11 4 th CCCCC Certain Religious Workers CCCCC 5 th Targeted Employment Areas/Regional Centers and Pilot Programs CCCCC

34 Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas, Where Are We Now? “Oversubscribed” versus “Available”  Oversubscribed if: Cut-off date indicated in chart Priority date must be earlier than posted date  Available if: Visa Bulletin indicates “C” = current For more information, visit

35 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Self-Sponsored  Extraordinary 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) For more information, visit

36 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment  National Interest Waiver EB-2 Standard  Exceptional ability or advanced degree  National priority  National impact Extensive documentation required Reference letters critical (cont’d) For more information, visit

37 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Employer-Sponsored  Outstanding Researcher EB-1 “Permanent position” Similar to extraordinary ability (cont’d) For more information, visit

38 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Evaluating Eligibility CV Evaluation  1 st listed author publications In process; submitted; accepted; published; cited  Impact factor?  Citations Footnote Text  Presentations 1 st listed abstracts Oral vs. poster (cont’d)  Book chapters  Honors and awards  Manuscript reviewer  Media For more information, visit

39 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment 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?  Referees (cont’d) For more information, visit

40 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Choosing Referees  How many?  Good C.V.’s  Prestigious institutions  Geographical diversity One per institution  Impartiality (cont’d) For more information, visit

41 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Other Factors  Not a peer review process  Importance of job title?  Importance of employer sponsorship?  File now, or wait?  Choice of attorney (cont’d) For more information, visit

42 Klasko, Rulon, Stock & Seltzer, LLP 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? For more information, visit

43 Klasko, Rulon, Stock & Seltzer, LLP 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) For more information, visit

44 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Labor Certification Application (PERM)  Employer Sponsored  Recruitment  Prevailing wage  Legal issues  Timing  First of 3 steps (cont’d) For more information, visit

45 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Timing  Electronic filing  Timing varies  Possibility of audit  First of three steps  Importance of filing before end of 5 th year in H-1B status (cont’d) For more information, visit

46 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment I-140 Petition  1 st step for EB-1 and national interest waiver  2 nd 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 (cont’d) For more information, visit

47 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment 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) For more information, visit

48 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment 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) For more information, visit

49 Klasko, Rulon, Stock & Seltzer, LLP Materials Please visit to download this PowerPoint presentation and relevant articles. For more information, visit

50 Klasko, Rulon, Stock & Seltzer, LLP For more information, visit Questions?

51 Klasko, Rulon, Stock & Seltzer, LLP For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Telephone: (Philadelphia) (New York) Offices: PhiladelphiaNew York 1601 Market Street317 Madison Avenue Suite 2600Suite 1518 Philadelphia, PA 19103New York, NY 10017

52 Klasko, Rulon, Stock & Seltzer, LLP online

53 Klasko, Rulon, Stock & Seltzer, LLP 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 © 2014 Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved. Copyright © All rights reserved.


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