H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 John F. Kennedy Blvd., Floor Madison Avenue, Suite 1518 Philadelphia, PA 19103New York, NY Immigration Options for Scholars and Researchers Thursday, November 3, 2011 Biomedical Postdoctoral Programs

Klasko, Rulon, Stock & Seltzer, LLP H. Ronald Klasko, Esq. Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP, the first immigration law firm global partner of NAFSA: Association of International Educators. He has been providing immigration assistance and solutions to leading universities, research institutions, hospitals and individuals for over 25 years. He and his firm have assisted thousands of students, postdocs and other researchers obtain permanent resident status, J-1 waivers and other immigration benefits. Ron is a former National President of the American Immigration Lawyers Association (AILA) and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee and its Task Force on H and L Visas. Mr. Klasko is one of only three practicing lawyers to have received the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law. Ron’s firm has been regularly chosen as one of five top tier immigration firms in the U.S., and Ron has been selected as one of twelve top tier immigration lawyers in the U.S. by Chambers Global. He is the only lawyer selected as “Philadelphia Immigration Lawyer of the Year” by Best Lawyers in America. The International Who’s Who of Business Lawyers selected Ron as the “most highly regarded” immigration lawyer in the world. Ron is a graduate of the University of Pennsylvania School of Law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Quotas  Visa Bulletin (  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

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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas, Where Are We Now? Visa Bulletin for November 2011 Employment Based All Charge- ability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1 st CCCCC 2 nd C01NOV07 CC 3 rd 22DEC0522AUG0422JUL0222DEC05 Other Workers* 15NOV0522APR0315JUN0215NOV05 4 th CCCCC Certain Religious Workers CCCCC 5 th Targeted Employment Areas/Regional Centers and Pilot Programs CCCCC

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas, Where Are We Now? “Oversubscribed” versus “Available”  Available if: Visa Bulletin indicates “C” = current Priority date earlier than posted date  Predictions from State Department for FY2012 EB-1 approvals are down almost 50% This will advance EB-2 in China or India China EB-3 will advance a little; India EB-3 not at all For more information, visit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Klasko, Rulon, Stock & Seltzer, LLP For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Telephone: (Philadelphia) (New York) Website: Blog: