Immigration Options Immigration Options after F-1 or J-1 Status Friday, April 17, 2009 H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17 th Floor317 Madison Ave., Suite 1518 Philadelphia, PA New York, NY

Klasko, Rulon, Stock & Seltzer, LLP H. Ronald Klasko, Esq. Ron Klasko has been providing immigration assistance and solutions to leading universities, hospitals, and research institutions for over 25 years. Ron is a past National President of the American Immigration Lawyers Association. He has been a member of the AILA Board of Governors since His firm is the first immigration law firm global partner of NAFSA: Association of International Educators. The firm has been selected as one of six top tier immigration firms in the United States for three consecutive years by the prestigious Chambers Global: The World's Leading Lawyers for Business (Chambers and Partners). This publication noted the firm as the “strongest in the country” when it comes to representing clients in the university research and medical sectors and recognized Ron as “a leading national practitioner who really does it all” who is “literally on the cutting edge” when it comes to immigration policy and legislative issues. Ron has been selected as one of twelve top tier immigration lawyers in the US by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 and 2008 editions selected Ron as the “most highly regarded” immigration lawyer in the world. Ron is a frequent author and lecturer on hospital and 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.

Klasko, Rulon, Stock & Seltzer, LLP Immigration Options for Students and Scholars Agenda H-1B Visas H-1B Quota Options for Dealing with H-1B Quota Quota-Exempt Employment Strategies to Enhance Chances of Getting H-1B Travel and Status Issues for H-1B Approvals Other Visa Options Permanent Resident Status – Family, Investment, Asylum, Lottery

Klasko, Rulon, Stock & Seltzer, LLP Immigration Options for Students and Scholars Agenda (cont’d) Permanent Resident Status – Employment Evaluating Eligibility Choosing Referees Other Factors Quotas Travel Issues Q & A

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas Basic requirements  Job Offer  Part-time or full-time  Bachelors or higher degree  Determine U.S. equivalence of foreign degree  Combination of education and experience  Specialty occupation  Job requires bachelors or higher degree in specific field  Prevailing wage

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas (cont’d) Employer requirements  U.S. employer  Pay fees  Post notice  Keep public examination file

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas (cont’d) Procedure and processing time  File Labor Condition Application with DOL  File H-1B petition with CIS  Change of status or consular visa issuance  Processing time 3 to 5 months 15 days or less with premium processing ($1000)

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas (cont’d) Length of approval and extensions  3 year initial approval and 3 year extension  6 year maximum – any combination of employers  Extensions beyond 6 years 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

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas (cont’d) H-1B portability  Present or prior H-1B  Commence employment upon new employer filing petition Spouses  H-4 cannot work Travel  Dual intent

Klasko, Rulon, Stock & Seltzer, LLP H-1B Quota What is it, and what does it mean?  65,000 visas Separate quota for US-educated advanced degree holders  20,000 visas Separate options for Canada, Mexico, Australia, Chile and Singapore  TN-1, E-3, H-1B1 Prospects for change Timing  April 1 filing date  October 1 start date

Klasko, Rulon, Stock & Seltzer, LLP Options for Dealing with H-1B Quota Quota-exempt employment Strategies to enhance chances of getting H-1B Alternative visa options Applying for permanent residence directly

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

Klasko, Rulon, Stock & Seltzer, LLP Strategies to Enhance Chances of Getting H-1B Obtaining masters degree Filing multiple years Filing first day Using previously-obtained degree Combination of education and experience Start your own business  Apply as H-1B employee

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  “Cap gap” relief

Klasko, Rulon, Stock & Seltzer, LLP Other Visa Options F-1  OPT  12 months or 29 months  Going back to school  Advantages of Masters or PhD Working overseas for U.S. employer  Entering U.S. as B-1  Eligibility for L-1 after one year Look at spouse’s status  Spouse of J,E and L can work

Klasko, Rulon, Stock & Seltzer, LLP Other Visa Options (cont’d) E-1 Treaty Trader  Substantial import or export  Treaty country nationality  Executive, supervisor, essential skill employee E-2 Treaty Investor  Substantial investment  No exact amount  Treaty country nationality  Investor or employee (executive, supervisory or essential skill) L-1 Intracompany Transferee  Related company (equity ownership)  One year employment overseas  Managerial or specialized knowledge  Overseas and U.S.

Klasko, Rulon, Stock & Seltzer, LLP H-3  Corporate trainee  Training not available overseas  Formal training program required  Productive employment incidental to training  Training will qualify for position abroad Other Visa Options (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP H-2B  Numerical quota and timing issues Can be skilled position but must be temporary Seasonal, peak-load, intermittent or one-time occurrence No U.S. workers available Other Visa Options (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP O-1 Visas  Employer sponsored  Standards  National or international reputation  Documentation  Reference letters  Length of approval  3 years  Unlimited one year extensions  Spouses  O-3 cannot be employed Other Visa Options (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP J-1 Visas  Trainee, researcher, scholar  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 Other Visa Options (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Waiver options  No objection waiver  Hardship  Persecution  Federal government agency waiver Other Visa Options (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Family Investment Asylum Employment Lottery

Klasko, Rulon, Stock & Seltzer, LLP Spouse of U.S. citizen  No quota wait  EAD and AP within 3 months  All other relationships  Long quota wait  No interim benefits Family

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

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

Klasko, Rulon, Stock & Seltzer, LLP Lottery Only specified countries One year window

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) 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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d)  National Interest Waiver EB-2 Standard  Exceptional ability or advanced degree  National priority  National impact Extensive documentation required Reference letters critical May file multiple petitions

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) Employer-Sponsored  Outstanding Researcher EB-1 “Permanent position” Similar to extraordinary ability  Multinational Manager EB-1 Same as L-1 except must be manager or executive overseas

Klasko, Rulon, Stock & Seltzer, LLP Evaluating Eligibility 1 st listed author publications  Impact factor? Citations Presentations  1 st listed abstracts Book chapters Honors and awards Manuscripts reviewer Importance/narrowness of field of expertise Referees

Klasko, Rulon, Stock & Seltzer, LLP Choosing Referees How many? Good C.V.’s Prestigious institutions Geographical diversity  One per institution Impartiality

Klasko, Rulon, Stock & Seltzer, LLP Other Factors Not a peer review process Importance of job title? Importance of employer sponsorship? File now, or wait?

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d)  Labor Certification Application (PERM) EB-2 or EB-3 Employer must:  Pay attorney fees and advertising costs  Define “minimum requirements”  Engage in required recruitment (approximately 4-5 months)  Interview U.S. worker applicants  Prove unavailability of qualified, interested, and available U.S. worker  Pay prevailing wage

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) Timing  Electronic filing  Varies (presently approximately 8 months)  Possibility of audit  First of three steps

Klasko, Rulon, Stock & Seltzer, LLP Quotas Per country of birth, per preference category, per fiscal year Filing date is “priority date” EB-1 (extraordinary ability, outstanding researcher, multinational manager)  No quota wait

Klasko, Rulon, Stock & Seltzer, LLP Quotas (cont’d) EB-2 (national interest waiver and labor certification)  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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) 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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) 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)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) 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

Klasko, Rulon, Stock & Seltzer, LLP Travel Issues Potential Problems  Intent to return – F & J vs. H &O  Visa interview delays  Security clearances  Technology Alert List  222(g) Possible solutions  Don’t travel  Canada/Mexico  Advance Parole

Klasko, Rulon, Stock & Seltzer, LLP Questions ?

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