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

Immigration Opportunities Part I: J-1 Waivers & Options 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 1st authored articles/impact factors Citations to 1st authored work Conference presentations Book Chapters/review articles Peer reviewer/manuscript reviewer

O-1 (cont’d) What’s Included in the Petition Processing time/issues Reference letters Independent referees Addressing O-1 criteria Corroborating Documentation Processing time/issues Length of approval Extensions

Questions?

Pathways to Permanent Residency Part II

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 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 November 2011 Employment Based All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES 1st C 2nd 01NOV07 3rd 22DEC05 22AUG04 22JUL02 Other Workers* 15NOV05 22APR03 15JUN02 4th Certain Religious Workers 5th     Targeted Employment Areas/Regional Centers and Pilot Programs

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 1st authored articles/impact factors Citations to 1st 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 (cont’d) Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps 2nd Step – I-140 3rd Step – I-485 or IV Consular Process No filing fee for this step

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) (cont’d) Adjustment portability H-1B Extensions One Year Three years Spouses

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: 212-796-8840 Fax: 212-297-1799 Email: sseltzer@klaskolaw.com Websites: www.eb1immigration.com www.klaskolaw.com