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Immigration Options for Postdocs
H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518 Philadelphia, PA New York, NY
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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 1980. 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 four 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, 2008 and 2009 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.
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H-1B Visas Basic requirements Procedure and processing times
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
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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
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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
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H-1B Visas 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
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J-1 Visas Return home 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
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Obtaining a J-1 Waiver General
Choosing between research track and clinical track Research track Usually through HHS Peer review process – unlike CIS filings Do not need 3 years in H-1B?
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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
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HHS Waivers Other Issues
(cont’d) Other Issues Involvement of NIH scientists familiar with the research Impact of Fulbright funding Timing
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Other Medical Research Waivers
Usually limited to agency contracts, grants or research programs Examples include DOD, NASA, DOE and DOI
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O-1 Visas Employer sponsored Standards Documentation Reference letters
National or international reputation Documentation Reference letters Length of approval 3 years Unlimited one year extensions Spouses O-3 cannot be employed
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Permanent Resident Status
Family Investment Asylum Employment Lottery
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Family Spouse of U.S. citizen All other relationships No quota wait
EAD and AP within 3 months All other relationships Long quota wait No interim benefits
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Investment $500,000 or $1,000,000 Individual investment or regional center
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Asylum Individualized fear of persecution
Race, religion, nationality, political opinion, social group, sexual persuasion
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Lottery Only specified countries One year window
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Permanent Resident Status Employment
Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions
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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
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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
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Permanent Resident Status Employment
(cont’d) Employer-Sponsored Outstanding Researcher EB-1 “Permanent position” Similar to extraordinary ability
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Permanent Resident Status Employment
Evaluating Eligibility 1st listed author publications Impact factor? Citations Presentations 1st listed abstracts Book chapters Honors and awards Manuscripts reviewer Importance/narrowness of field of expertise Referees (cont’d)
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Permanent Resident Status Employment
(cont’d) Choosing Referees How many? Good C.V.’s Prestigious institutions Geographical diversity One per institution Impartiality
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Permanent Resident Status Employment
(cont’d) Other Factors Not a peer review process Importance of job title? Importance of employer sponsorship? File now, or wait?
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Permanent Resident Status Employment
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 (cont’d)
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Permanent Resident Status Employment
(cont’d) Timing Electronic filing 8 months? Possibility of audit First of three steps Importance of filing before end of 5th year in H-1B status
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Permanent Resident Status Employment
(cont’d) 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
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Permanent Resident Status Employment
Quotas 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 (cont’d)
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Permanent Resident Status Employment
(cont’d) I-140 Petition 1st step for EB-1 and national interest waiver 2nd 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
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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)
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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
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Travel Issues Potential Problems Possible solutions
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
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Questions?
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For Further Information
H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Telephone: (Philadelphia) (New York) Websites: Blog:
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