Klasko, Rulon, Stock & Seltzer, LLP Immigration Options for Scholars and Researchers Tuesday, April 26, 2011 H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., Floor 17 317 Madison Ave., Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840 rklasko@klaskolaw.com www.klaskolaw.com

H. Ronald Klasko, Esq. Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP, the first immigration law firm global partner of NAFSA: Association of International Educators. He has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 25 years. Ron is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee, its Task Force on H and L Visas and Business Immigration Committee. Mr. Klasko is one of only two recipients of the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law. Ron has been chosen as one of twelve top tier immigration lawyers in the U.S. by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers selected Ron as the “most highly regarded” business immigration lawyer in the world. He is a frequent author and lecturer on business-related immigration 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.

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

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

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

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

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

Travel and Status Issues for H-1B Approvals Change of status vs. consular visa issuance Travel after April 1 Maintaining status until October 1

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

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

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 “Impossibility” of fulfillment argument

Avoiding Need for J-1 Waiver (cont’d) Government financing advocacy Must be during J status Indirect government financing Funds earmarked for exchange program

Visa Options Without Needing Waiver Anything other than H or L visa or change of status O-1, TN-1, E-3 ok Canadian doctor H-1B visa-exempt entry 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)

Fulfilling Two-Year Return Requirement Return to country of nationality or last residence? Can fulfill sequentially

J-1 Waiver Options No objection statement Exceptional hardship Persecution Interested government agency

No Objection Statement Researchers only Usually not helpful if U.S. or international organization funding Quickest and easiest waiver Attitudes of different countries

Exceptional Hardship Waiver Hardship to U.S. citizen or LPR spouse or child Hardship must be “exceptional” Very difficult

Persecution Waiver Individualized persecution Similar to asylum

Interested Government Agency Waivers Research track Usually through HHS Peer review process – unlike CIS filings Do not need 3 years in H-1B?

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

HHS Waivers Other Issues (cont’d) Other Issues Involvement of NIH scientists familiar with the research Reconsideration of denials Impact of Fulbright funding Timing

Other Medical Research Waivers Usually limited to agency contracts, grants or research programs Examples include DOD, NASA, DOE and DOI

O-1 Visas Employer sponsored Standards Documentation Reference letters Processing time/issues Length of approval Extensions Spouses

Permanent Residence Employer-sponsored, family-sponsored or self-sponsored Quotas/timing issues Impact on visa status Impact on family Impact on travel

Permanent Resident Status Family Investment Asylum Lottery Employment

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

Investment $500,000 or $1,000,000 Individual investment or regional center

Asylum Individualized fear of persecution Race, religion, nationality, political opinion, social group, sexual persuasion

Lottery Only specified countries One year window www.travel.state.gov Effect of application on future visa applications

Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions

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

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)

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)

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

Permanent Resident Status Employment (cont’d) Employer-Sponsored Outstanding Researcher EB-1 “Permanent position” Similar to extraordinary ability

EB-1 for Researchers 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 Book chapters Honors and awards Manuscript reviewer Media

EB-1 for Researchers Evaluating Eligibility Evaluation Outside of CV (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

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?

Permanent Resident Status Employment (cont’d) Labor Certification Application (PERM) Employer Sponsored Recruitment Prevailing wage Legal issues Timing First of 3 steps

Permanent Resident Status Employment (cont’d) Timing Electronic filing 10 months? Possibility of audit First of three steps Importance of filing before end of 5th year in H-1B status

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

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)

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

Questions ?

For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP E-mail: rklasko@klaskolaw.com Telephone: 215-825-8600 (Philadelphia) 212-796-8840 (New York) Websites: www.klaskolaw.com www.eb1immigration.com www.worsite-compliance.com www.eb5immigration.com Blog: http://blog.klaskolaw.com