Immigrant Visa Options for PostDocs Presented by: David H. Nachman, Esq. and Victoria Donoghue, Esq.

Overview Path to Permanent Residence for Researchers & Post Docs F Visas (students) F Visas (students) J Visas (research scholars) J Visas (research scholars) H-1B Visas (employees) H-1B Visas (employees) Employment Based Permanent Residence Employment Based Permanent Residence

THE J-1 VISA Exchange Visitors Exchange Visitors - Students - Research Scholars

J -1 Sponsors Every exchange alien must enter the US to participate in a designated Exchange-Visitor program Categories of Exchange-Visitor programs: – –Students/student interns – –Short-term scholars – –Trainees/interns – –Professors – –Research Scholars – –Specialists – –Other

Period of stay Post-doctoral training- 18 months Post-doctoral training- 18 months College and university professors and research scholars- 5 yrs from the program begin date in SEVIS College and university professors and research scholars- 5 yrs from the program begin date in SEVIS

J Visas and 2 Year Foreign Residency Requirement Ineligible for an H visa or permanent residence until after he has spent 2 yrs in home country Ineligible for an H visa or permanent residence until after he has spent 2 yrs in home country Who is subject to this? Who is subject to this? - skills list - US or home government funding - Exchange visitors who come to the US to received graduate medical education or training

Waivers of 2 Year Home Residency requirement Interested governmental agency waiver Interested governmental agency waiver Exceptional hardship waiver Exceptional hardship waiver “no objection” waiver “no objection” waiver Advisable to seek an advisory opinion from the DOL before applying for a waiver Advisable to seek an advisory opinion from the DOL before applying for a waiver

H-1B Visas The position must be in a specialty occupation: The position must be in a specialty occupation: - highly specialized knowledge; AND - attainment of a BA or higher in the specialty occupation

Period of Stay Two three year periods of stay Two three year periods of stay Extensions only in some cases where a permanent residence petition is pending Extensions only in some cases where a permanent residence petition is pending

Two Important H-1B Concepts Concurrent H-1Bs permitted Concurrent H-1Bs permitted H-1Bs are portable H-1Bs are portable

O Visas Aliens of extraordinary ability in the sciences, arts, education, business, or athletics Must intend to work in their area of extraordinary ability or achievement No numerical cap

Duration of Stay An initial period of 3 years is permitted Extensions of stay granted in increments of up to 1 year

Employment Based Permanent Residence Requirements: Full-time employment Full-time employment Attainment of DOL Labor Certification Attainment of DOL Labor Certification Ability to pay Ability to pay Availability of Immigrant visa number Availability of Immigrant visa number

1 st Preference (EB1)- NO labor cert required Outstanding Professors & Researchers Outstanding Professors & Researchers Aliens of Extraordinary Ability Aliens of Extraordinary Ability - Top of their field

EB-1 Extraordinary Ability Extraordinary ability in the field of Science, education, business or athletics must demonstrate sustained national or international acclaim and recognition by providing evidence of: – –Receipt of a major, internationally recognized award, such as the Nobel Prize; OR – –At least three of the following: receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field; membership in associations which require outstanding achievements of their members

Extraordinary Ability (Con’t) Published material about the alien in professional publications relating to the alien’s work; Evidence of the alien’s original scientific, scholarly, artistic, athletic or business-related contribution of major significance; Evidence of the alien’s authorship of scholarly articles; Evidence that the alien has performed in a critical role for organizations that have a distinguished reputation; Evidence that the alien has commanded a high salary or other significantly high remuneration for services in relation to others in the field.

Outstanding Researchers and Professors Teaching positions must be tenured or tenure track appointments, while research positions must be permanent. Universities or other institutions of higher learning can offer teaching or research positions; private employers can offer only research positions, and must demonstrate that they employ at least three full-time researchers.

Outstanding Researchers and Professors (Cont’d) Petitions in this category needs evidence any two of the following six groups: 1.Receipt of major prizes or awards in the academic field. 2.Membership in associations which require outstanding achievements of their members. 3.Published material in professional publications written by others about the beneficiary’s work in the academic field. 4.Participation as a judge of the work of others in the field. 5.Original scientific or scholarly research contributions. 6.Authorship of scholarly books or articles in the academic field.

2 nd Preference (EB2)- Labor Cert usually required Schedule A, Group II Schedule A, Group II National Interest Waiver National Interest Waiver PERM Labor Certification Application PERM Labor Certification Application Advanced Degree Professional Advanced Degree Professional - Job requires a degree beyond a BA

National Interest Waiver (NIW) EB2 classification but no labor cert required Legal Test: – –Substantial Intrinsic Merit- the work substantially benefits the national economy, cultural or educational interests, or welfare of the US – –Benefit is national in scope – –Benefit derived from the alien’s participation in the field considerably outweighs the inherent national interest in protecting US workers (looks at alien’s standing in the field)

3 rd Preference- Labor Certification Required Must have a BA - a professional not qualifying for EB2 Must have a BA - a professional not qualifying for EB2 Must possess at least 2 years of experience. Must possess at least 2 years of experience. Must prove there are no US Workers who can take the job. Special PERM Requirements for Professors/Teachers. Must prove there are no US Workers who can take the job. Special PERM Requirements for Professors/Teachers.

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