Immigration Opportunities for Clinicians and Researchers Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer Philadelphia – New York

Immigration Opportunities Part I  Understanding J-1 two year rule Who is Subject What Does it Mean to be Subject Options if Subject  J-1 Waivers Research based Clinical based  The O-1 Visa as a bridge to a waiver

J-1 Visa  Who is subject to 2-year return? Exchange Visitor Skills List  Right Skill?  Right List? Government Funding  U.S. or Home Country  Direct or Indirect Graduate Medical Training

What Does it Mean to be Subject?  Ineligible for Certain Visas H-1B L-1 K  Ineligible to apply for final step of Green Card I-485 IV Consular Processing But may commence initial steps…

If Subject, are there Options?  Return home Where is home? Aggregating trips  Apply for a Waiver  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

J-1 Waiver Options  Waiver options Hardship Persecution No objection waiver (researchers only)

J-1 Waiver Options: Research  Federal government agency waiver based on essentiality to research: National Science Foundation Department of Energy Health & Human Services U.S. Dep’t of Veteran’s Affairs

J-1 Waiver Options: Clinical  Federal government agency waiver based on clinical service: Appalachian Regional Commission Delta Regional Authority waiver Health & Human Services Department of Veteran’s Affairs Conrad State 30 waiver

J-1 Waiver Options: Clinical  Clinical Waivers Requires at least 3 Year Commitment 3 Year Obligation Must be fulfilled in H-1B status If 3 year commitment is extended to 5 years, may be a pathway to the green card

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

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

Questions?

Part II Pathways to Permanent Residency

Immigration Opportunities Part II: Pathways to Permanent Residency  What is Permanent Residency  Permanent Residency Quotas  Employment Based Permanent Residency Self Petitions Employer Sponsored  Adjustment of Status and Maintenance of status

What is Permanent Residency?  Authorization to Live & Work Indefinitely in the United States  “Immigrant Visa”  The “Green Card” or “Form I-551”  Not always ‘forever’ – may be abandoned or taken away

Immigrant vs. Non-Immigrant Visas  Immigrant Visa Green Card/Permanent Residency  Non-Immigrant Visa (NIV) H, F, J, O, etc Limited duration Specific to employer/institution Specific to purpose (work/study/tourism)

How Do I Apply?  Family  Investment  Asylum  Employment  DV Lottery

Permanent Residency Quotas  Annual Limit on Permanent Residency  Per Country Limit – 7%  Allocated by: Priority Date – place in line Preference Category

Permanent Residency Quotas  Employment Based Preferences First Preference (EB-1)  Extraordinary Ability, Outstanding Researcher, Multinational Executive Second Preference (EB-2)  Nat’l Interest Waivers, Advanced Degreed Professionals, Bachelors plus 5 years exp. Third Preference (EB-3)  Skilled Worker (2+ years experience), Bachelor’s Degree

Permanent Residency Quotas, Where Are We Now? Visa Bulletin for October 2011 All Chargeability Areas Except Those Listed CHINA- mainland born INDIAMEXICO PHILIPPINES/ DOMINICAN REPUBLIC Employment Based 1stCCCCC 2ndC15JUL07 CC 3rd8DEC0508DEC0408JUN0215SEP05 5thCCCCC

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

Employment Based (EB) Permanent Residency  Employer-sponsored or self-sponsored  Labor certification or extraordinary/national interest/exceptional  Multiple petitions  Multi-Step Process  Non-Immigrant Status?

Employment Based (EB) Permanent Residency: EB-1 Extraordinary Ability/EB-1 (I-140, filing fee $580) “One of a Few at the Top” ‘Self-Petition’ – no need for employer sponsor Factors Considered in Initial Evaluation  1 st authored articles/impact factors  Citations to 1 st authored work  Conference Presentations  Peer Review/Manuscript Review Work  References from independent Experts  Documenting Regulatory Criteria Preparation/Processing Times

Employment Based: EB-1 cont’d Outstanding Researcher/EB-1 (I-140, filing fee $580) Similar to Extraordinary Ability Requires employer sponsor At least 3 Years experience Permanent job offer Qualified Employers:  Academic Institutions  Industry  At least 3 FT researchers  Recognition in field

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?

New EB-1 Guidance (cont’d)  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

Employment Based: EB-2 National Interest Waiver/EB-2 (I-140, filing fee $580) Self-Petition, no employer sponsor req’d Three Prong Test  Field is of Substantial Intrinsic Merit  National Impact of Your Contributions  You Are “Substantially Better” Than Your Peers Preparation/Processing Times India/China backlog

Employment Based: Employer Sponsored  Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps  2 nd Step – I-140  3 rd Step – I-485 or IV Consular Process No filing fee for this step (cont’d)

Permanent Resident Status Adjustment of Status (I-485)  Timing Preference categories/quotas Priority dates Processing times  Concurrent filing (I-140/I-485)  I-485 filing fee $1070, includes: Employment authorization (I-765) Advance parole (I-131)

Permanent Resident Status Adjustment of Status (I-485)  Adjustment portability  H-1B Extensions One Year Three years  Spouses (cont’d)

Issues Relating to NIV Status During Permanent Residency Process  Important to Maintain NIV status  Travel  Extensions of Status  Dependents  Eligibility for OPT

Questions?

Contact Information Suzanne B. Seltzer, Esq. Telephone: Fax: Websites: