Moving from Academic Life to Private Industry: The H-1B Quota Fiscal Year (FY) October 1 to September 30 H-1B Quota/Cap – private industry employers –65,000 per FY 5,400 Singapore 1,400 Chile –20,000 for U.S. graduates with Master’s or higher degree
H-1B Professional Occupation Visa – the Basics Employer-specific Part-time or full-time Concurrent H-1B for multiple employers 6 year maximum; granted in 3 year increments At-will employment
H-1B Portability Portability allows commencement of new job upon “filing” of new petition – no need to wait for approval. Cap-exempt H-1B to cap-subject employer? (i.e. university to private industry) –Subject to H-1B cap (never been counted) –Timing issue – limited situations
H-1B Portability (cont.) Private industry: can transfer H-1B to new employer at any time. Will not be subject to H-1B cap again for six years (already counted as part of the H- 1B cap).
J-1 Subject? Cannot apply for H-1B or green card until home for two years or receive waiver. Waiver options: –No-objection statement from home government –Interested Government Agency: IGA –Claim to Persecution if you return to your home country –Claim of exceptional hardship to U.S. citizen or permanent resident spouse/child if required to return to home country –Request from state public health department (or equivalent) (only applies to foreign medical graduates)
The Permanent Residence Process: Two Stages 1. Immigrant Visa -Forms the basis for immigration to the U.S. 2. Adjustment of status or consular processing -Actual immigration -Quota backlogs occur prior to this stage
Two Stages (continued) Step 1: I-140 Immigrant visa petition Step 2: I-485 Application to Adjust Status to Lawful Permanent Resident (AOS). Within days of filing: - Employment Authorization Document (EAD) - Advance Parole travel document I-140 and I-485 can be filed concurrently for certain employment- based categories. Can premium process (expedite) certain I-140 petitions. I-485 cannot be premium processed (although there are some limited expedited criteria).
Employment-Based, First Preference Immigrant Visa (EB-1) Foreign Nationals of Extraordinary Ability –Reserved for recipients of a one-time achievement (major, international award) or at least 3 out of 10 criteria evidencing that the applicant has risen to the very top of the field. Important to define your field at the very outset of your case. –Self-petition or employer-sponsored. –If already granted an O-1, may qualify for an EB-1. Similar criteria, but EB-1 standard much higher in practice.
The First Step: EB-1 Criteria Lesser nationally or internationally recognized prizes or awards for excellence in the field; Membership in associations that require outstanding achievements as judged by recognized experts in the field; Published material about the applicant in professional or major trade publications or other major media about his or her work in the field; Participation as a judge of the work of others in the same or an allied field; Original scientific contributions of major significance to the field;
EB-1 Criteria (cont.) Authorship of scholarly articles in the field, published in professional or major trade publications or other major media; Display of the applicant’s work in the field at artistic exhibitions or showcases; Performance in a leading or critical role for organizations or establishments with distinguished reputations; Commanding a high salary or other significantly high remuneration for services in relation to others in the field; and Evidence of commercial success in the performing arts.
Comparable Evidence When the criteria do not readily apply to the applicant’s occupation, comparable evidence of extraordinary ability may be submitted to establish eligibility. Several of the criteria, e.g. evidence of success in the performing arts, do not apply to the sciences, so ALWAYS argue comparable evidence. For example, scientists cannot argue display of work in artistic showcases, but comparable recognition for achievements would be presentation of work at prestigious national and international conferences in the field. Invited and oral presentations are particularly persuasive evidence.
The Second Step: The Final Merits Determination Incredibly subjective – predicting outcomes in EB-11 adjudications is extremely difficult. An applicant may satisfy 3 or more criteria but still be denied at this stage. Whatever the evidence submitted to satisfy at least 3 of the 10 criteria, it must be consistent with the claim that you have enjoyed sustained national or international acclaim and recognition for achievements. For example, reviewing 1 manuscript, authoring 1 article, and receiving 1 lesser known award over the course of an entire career may satisfy the minimum number of criteria without demonstrating eligibility for extraordinary ability classification.
Final Merits Determination Issues Specific to Researchers The quality (rank and impact factor) of the journals in which you have published scholarly articles is important. The number of articles and the period over which they were published is relevant – acclaim must be “sustained.” This is also true for review work – the more articles you have been asked to review, the more likely it is you will be seen as having distinguished yourself within the field. You can always volunteer to be a peer reviewer, but a handful of reviews will over a short period of time is likely not get you past the Final Merits Determination. Student awards and scholarships are generally discounted completely. Similarly, grants are considered funding for future work rather than recognition for prior achievements.
Final Merits Determination Issues (cont.) How to establish critical or lead role: –The role must be critical or leading within the organization or establishment, not merely a single project. However, think of arguments to support the position that a project or projects are critical to the mission of the institution and thus how your role satisfies this criterion. Choose your referees carefully! –Reference letters from top scientists in your field are important to both the critical/lead role and original contributions of major significance criteria. The more acclaimed and accomplished your referee, however, the less extraordinary you may appear to the adjudicating officer.
EB-2 National Interest Waiver (NIW) Can self-petition (no employer required) Three prong test: –Work has substantial intrinsic merit –Work is national in scope –The national interest would be adversely affected if the labor certification requirement were not waived.
NIW (continued) How to satisfy the third prong: must demonstrate that you have had some impact on the field as a whole. Arguing that the work is so important that any person performing it should receive an NIW will not be successful – you must establish that you have had “some degree of influence” on the field. Lower standard than extraordinary ability but many of the same criteria considered in practice for researchers. Unlike the EB-1, you do not have to show that you have risen to the top of the field not a rigorous comparative standard. However, must still establish that you have distinguished yourself and impacted the field.
Issues Specific to Researchers Publications: –First author is a very strong factor. –The lower your name appears in the list of co-authors, the more difficult it becomes to attribute any impact on the field to you. –A limited publication record can be overcome by a high citation record. Large Collaborations: –The larger the group in which you are working, the less willing USCIS is to credit you with the contribution to the field. –Reference letters are important evidence of your critical role in a project.
NIW Processing Same as EB-1, but employment-based second preference has a backlog for those born in China and India. No premium processing available for NIWs. Chinese and Indian-born may elect to file an NIW to establish a priority date and then try to build up EB-1 case.
Priority Date (PD) = date I-140 petition filed If preference category is backlogged, can’t file I-485 until PD is current. March 2014 Visa Bulletin (www.travel.state.gov) Employment- Based All Charge- ability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1stCCCCC 2ndC15FEB0915NOV04CC 3rd01SEP12 15SEP0301SEP1201MAY07
Requests for Evidence Requests for Evidence (RFEs) are not uncommon with E11s or NIWs. RFEs must be read carefully – they often contain inaccurate statements of fact that should be corrected in the RFE response. Don’t assume the officer did his job – if the RFE suggests the officer failed to consider some evidence, but sure to point this out. A common complaint in RFEs is that the applicant is relying solely or primarily on reference letters to establish original contribution or influence on the field – make sure to point out how other evidence (publications in high impact journals, presentations in leading venues in the field, etc.) corroborate the assertions made in the letters.
Green Card Lottery Based on country of birth (not citizenship). Countries that are NOT eligible include: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible! “Cross-charge” to spouse’s country of birth.
Question and Answer Session Bernard P. Wolfsdorf Jessica L. Marks Wolfsdorf Rosenthal LLP nd Street641 Lexington Ave., 15 th Fl. Santa Monica, CA 90401New York, NY VISA-LAW