H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., Floor Madison Ave., Suite 1518 Philadelphia, PA New York, NY Immigration Options for Scholars and Researchers Monday, November 11, 2013

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. 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.

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

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

Klasko, Rulon, Stock & Seltzer, LLP Immigrant vs. Nonimmigrant Visas Immigrant Visa  Green Card/Permanent Residency Nonimmigrant Visa (NIV)  H, F, J, O, etc.  Limited duration  Specific to employer/institution  Specific to purpose (work/study/tourism)  May need to establish “non-immigrant” intent For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP Nonimmigrant to Immigrant F-1 – attend school F-1 OPT – start work H-1B – continue working; Cap subject? Cap exempt? H-1B – change employer? 6 years maximum in H status For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP Nonimmigrant to Immigrant H-1B – change employer, requires new petition may start working under ‘H-1B portability’ 4 th Year H-1B status – start thinking about LPR Maintain NIV status until LPR 6 years in H-1B, other options? Eligible to file adjustment of status? For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas 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 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 Travel and Status Issues for H-1B Approvals Change of status vs. consular visa issuance Travel after April 1 Maintaining status until October 1 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 visa  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 For more information, visit (cont’d)

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 can be filed I-485 cannot be filed (except clinical NIW) 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 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 For more information, visit (cont’d)

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

Klasko, Rulon, Stock & Seltzer, LLP Nonimmigrant Option: O-1 Visa Extraordinary Ability Factors Considered in Initial Evaluation  1 st authored articles / presentations  Citations  Book chapters / review articles  Peer reviewer / manuscript reviewer For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP O-1 Option: Alien of Extraordinary Ability Document Intensive Petition Important option if:  Cap Subject H-1B  6 Years in H-1B  J Subject to 2 years For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residence Employer-sponsored, family-sponsored or self- sponsored Quotas/timing issues Impact on visa status Impact on family Impact on travel For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP Application Pathways for Permanent Residency Family Investment Asylum Employment DV Lottery For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas Annual Limit on Immigrant Visas (Permanent Residency) Per Country Limit – 7% Allocated by:  Priority Date – place in line  Preference Category 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 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 For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas, Where Are We Now? Visa Bulletin for November 2013 Employment Based All Charge- ability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1 st CCCCC 2 nd C08OCT0815JUN08CC 3 rd 01OCT10 22SEP0301OCT1015DEC06 Other Workers* 01OCT10 22SEP0301OCT1015DEC06 4 th CCCCC Certain Religious Workers CCCCC 5 th Targeted Employment Areas/Regional Centers and Pilot Programs CCCCC

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 For more information, visit (cont’d)

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 For more information, visit (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment For more information, visit Outstanding Researcher/EB-1  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 (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP EB-1 for Researchers 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  Book chapters  Honors and awards  Manuscript reviewer  Media For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP EB-1 for Researchers 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 For more information, visit (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP EB-1 Two Part Analysis Introduced in December 2010  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?  USCIS provides no clear guidelines for applying final merits analysis 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? For more information, visit (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Employment Based: EB-2 National Interest Waiver/EB-2 (I-140, $580)  Self-Petition, no employer sponsor required  Two Pathways to NIW  Three Prong Test Field is of Substantial Intrinsic Merit National Impact of Your Contributions You Are “Substantially Better” Than Your Peers For more information, visit

Klasko, Rulon, Stock & Seltzer, LLP Employment Based: EB-2 NIW cont’d:  Past Record of Achievement Must Justify Your Prospective Benefit to U.S.  Preparation/Processing Times  India/China backlog (cont’d) For more information, visit

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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Timing  Electronic filing  4 months?  Possibility of audit  First of three steps  Importance of filing before end of 5 th year in H-1B status For more information, visit (cont’d)

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 For more information, visit (cont’d)

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) For more information, visit (cont’d)

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 For more information, visit (cont’d)

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

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Klasko, Rulon, Stock & Seltzer, LLP For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Telephone: (Philadelphia) (New York) Offices: PhiladelphiaNew York 1800 John F. Kennedy Blvd. 317 Madison Avenue Floor 17Suite 1518 Philadelphia, PA 19103New York, NY 10017

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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 © 2013 Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.