for Scholars and Researchers Klasko, Rulon, Stock & Seltzer, LLP Immigration Options for Scholars and Researchers Wednesday, February 12, 2014 William A. Stock, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 John F. Kennedy Blvd., Floor 17 317 Madison Avenue, Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840 wstock@klaskolaw.com www.klaskolaw.com

William A. Stock, Esq. Bill Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for nearly 20 years. Bill is featured in Chambers Global, Best Lawyers in America, Pennsylvania Super Lawyers, Who’s Who of Business Lawyers and other guides to prominent attorneys. He is active in the American Immigration Lawyers Association on a national level, currently serving as second vice president on the Association’s national Executive Committee, and has been Business Committee chair and Distance Learning Committee chair. He is also active in NAFSA’s Region VIII and has been a Regulatory Ombudsman for the region on scholar and faculty issues. Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and has served as an Adjunct Faculty Member at Villanova University School of Law.

Immigration Options for Scholars and Researchers Agenda H-1B Visas and Quota J-1 Visas and Waivers O-1 Visas Permanent Residence Status Q&As For more information, visit www.eb1immigration.com

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 For more information, visit www.eb1immigration.com

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 www.eb1immigration.com

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 www.eb1immigration.com

H-1B 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 For more information, visit www.eb1immigration.com

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 Waiver For more information, visit www.eb1immigration.com

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 www.eb1immigration.com

Avoiding Need for J-1 Waiver (cont’d) 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 For more information, visit www.eb1immigration.com

Avoiding Need for J-1 Waiver (cont’d) Government financing advocacy Must be during J status Indirect government financing Funds earmarked for exchange program For more information, visit www.eb1immigration.com

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 immigrant visa application can be filed I-485 cannot be filed For more information, visit www.eb1immigration.com

Fulfilling Two-Year Return Requirement Return to country of nationality or last residence? Can fulfill sequentially For more information, visit www.eb1immigration.com

J-1 Waiver Options No objection statement Exceptional hardship Persecution Interested government agency For more information, visit www.eb1immigration.com

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 www.eb1immigration.com

Exceptional Hardship Waiver Hardship to U.S. citizen or LPR spouse or child Hardship must be “exceptional” Very difficult For more information, visit www.eb1immigration.com

Persecution Waiver Individualized persecution Similar to asylum For more information, visit www.eb1immigration.com

Interested Government Agency Waivers Research track Usually through HHS Peer review process – unlike CIS filings For more information, visit www.eb1immigration.com

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 For more information, visit www.eb1immigration.com

HHS Waivers Other Issues (cont’d) Other Issues Involvement of NIH scientists familiar with the research Impact of Fulbright funding Timing For more information, visit www.eb1immigration.com

Other Medical Research Waivers Usually limited to agency contracts, grants or research programs Examples include NSF, DOD, NASA, DOE and DOI For more information, visit www.eb1immigration.com

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 For more information, visit www.eb1immigration.com

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 For more information, visit www.eb1immigration.com

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 Spouses For more information, visit www.eb1immigration.com

Permanent Resident Status Family Investment Asylum Lottery Employment For more information, visit www.eb1immigration.com

Family Spouse of U.S. citizen All other relationships 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 For more information, visit www.eb1immigration.com

Investment $500,000 or $1,000,000 Individual investment or regional center For more information, visit www.eb1immigration.com

Asylum Individualized fear of persecution Race, religion, nationality, political opinion, social group, sexual persuasion For more information, visit www.eb1immigration.com

Lottery Only specified countries One year window www.travel.state.gov Effect of application on future visa applications For more information, visit www.eb1immigration.com

Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions For more information, visit www.eb1immigration.com

Permanent Resident Status Employment (cont’d) Quotas Visa Bulletin (www.travel.state.gov) Per country of birth, per preference category, per fiscal year Filing date is “priority date” EB-1 (extraordinary ability, outstanding researcher) No quota wait For more information, visit www.eb1immigration.com

Permanent Resident Status Employment Quotas EB-2 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) For more information, visit www.eb1immigration.com

Permanent Residency Quotas, Where Are We Now? Employment Based All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES 1st C 2nd 15FEB09 15NOV04 3rd 01SEP12 15SEP03 01MAY07 Other Workers* 4th Certain Religious Workers 5th     Targeted Employment Areas/Regional Centers and Pilot Programs Visa Bulletin for March 2014

Permanent Residency Quotas, Where Are We Now? “Oversubscribed” versus “Available” Oversubscribed if: Cut-off date indicated in chart Priority date must be earlier than posted date Available if: Visa Bulletin indicates “C” = current For more information, visit www.eb1immigration.com

Permanent Residency Quotas Predictions from DOS for FY2013 EB-1 usage is extremely high, so numbers are not dropping down into EB-2 EB-2 India will remain in 2006 for some time EB-2 worldwide may ‘retrogress’ towards the end of FY2013 EB-3 will continue to move forward slowly For more information, visit www.eb1immigration.com

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 (cont’d) For more information, visit www.eb1immigration.com

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 For more information, visit www.eb1immigration.com

Permanent Resident Status Employment (cont’d) Employer-Sponsored Outstanding Researcher EB-1 “Permanent position” Similar to extraordinary ability For more information, visit www.eb1immigration.com

Permanent Resident Status Employment Evaluating Eligibility CV Evaluation 1st listed author publications In process; submitted; accepted; published; cited Impact factor? Citations Footnote Text Presentations 1st listed abstracts Oral vs. poster (cont’d) Book chapters Honors and awards Manuscript reviewer Media For more information, visit www.eb1immigration.com

Permanent Resident Status Employment (cont’d) 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 www.eb1immigration.com

Permanent Resident Status Employment (cont’d) Choosing Referees How many? Good C.V.’s Prestigious institutions Geographical diversity One per institution Impartiality For more information, visit www.eb1immigration.com

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? Choice of attorney For more information, visit www.eb1immigration.com

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? For more information, visit www.eb1immigration.com

New EB-1 Guidance Implications of Two Part Analysis (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 For more information, visit www.eb1immigration.com

Permanent Resident Status Employment (cont’d) Labor Certification Application (PERM) Employer Sponsored Recruitment Prevailing wage Legal issues Timing First of 3 steps For more information, visit www.eb1immigration.com

Permanent Resident Status Employment (cont’d) Timing Electronic filing Timing varies Possibility of audit First of three steps Importance of filing before end of 5th year in H-1B status For more information, visit www.eb1immigration.com

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 For more information, visit www.eb1immigration.com

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) For more information, visit www.eb1immigration.com

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 For more information, visit www.eb1immigration.com

Materials Please visit www.klaskolaw.com to download this PowerPoint presentation and relevant articles. For more information, visit www.eb1immigration.com

Questions? For more information, visit www.eb1immigration.com

For Further Information William A. Stock, Esq. Klasko, Rulon, Stock & Seltzer, LLP E-mail: wstock@klaskolaw.com Telephone: 215-825-8600 (Philadelphia) 212-796-8840 (New York) Offices: Philadelphia New York 1800 John F. Kennedy Boulevard 317 Madison Avenue Floor 17 Suite 1518 Philadelphia, PA 19103 New York, NY 10017

online www.klaskolaw.com www.eb1immigration.com www.worksite-compliance.com www.eb5immigration.com http://blog.klaskolaw.com

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 © 2014 Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved. Copyright © 2014. All rights reserved.