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

Suzanne B. Seltzer, Esq. Suzanne Seltzer is a partner of Klasko, Rulon, Stock & Seltzer LLP. Ms. Seltzer is the Chair of the American Immigration Lawyer's Association (AILA) Service Center Operations Committee, having recently completed her tenure as the USCIS Benefits & Policy Liaison. Ms. Seltzer speaks and writes extensively on visa options for scientists and researchers. She is listed in Best Lawyers in America, Chambers USA, New York SuperLawyers, and the International Who's Who of Corporate Immigration Lawyers. A magna cum laude graduate of the University of Pennsylvania, Ms. Seltzer received her law degree from Georgetown Universitys Law Center (cum laude).

Immigration Opportunities Part I: Pathways to Permanent Residency What is Permanent Residence Permanent Residence Quotas Employment Based Permanent Residence Self Petitions Employer Sponsored Adjustment of Status - Maintenance of status For more information, visit

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 For more information, visit

Immigrant vs. Non-Immigrant Visas Immigrant Visa 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) For more information, visit

Nonimmigrant to Immigrant F-1 – attend school F-1 OPT – start work H-1B/L-1 – continue working; max 6 years total in H status H-1B – change employer, continues to count against 6 years maximum For more information, visit

Nonimmigrant to Immigrant H-1B – change employer, requires new petition may start working under H-1B portability 4 th Year H-1B status – start thinking about LPR maintain NIV status until LPR 6 years in H-1B, other options? Eligible to file adjustment of status? For more information, visit

J-1 Nonimmigrant to LPR J-1 two year home requirement O-1 waiverfulfill two years clinical all other apply LPR 3 years H-1B For more information, visit

How Do I Apply? Family Investment Asylum Employment DV Lottery For more information, visit

Permanent Residence Quotas Annual Limit on Permanent Residence Per Country Limit – 7% Allocated by Dept of State (DOS) based on: Priority Date – place in line Preference Category For more information, visit

Permanent Residence Quotas Employment Based Preferences First Preference (EB-1) Extraordinary Ability Outstanding Researcher Multinational Executive For more information, visit

Permanent Residence Quotas Second Preference (EB-2) Advanced Degree Professionals Position must require advanced degree Bachelors plus 5 yrs exp is equivalent Aliens of Exceptional Ability In lieu of advanced degree Much lower standard than EB-1 PERM or National Interest Waiver For more information, visit

Permanent Residency Quotas, Where Are We Now? Visa Bulletin for November 2012 Employment Based All Charge- ability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1 st CCCCC 2 nd C01SEP0701SEP04CC 3 rd 22NOV0615APR0622OCT0222NOV0608AUG06 Other Workers* 22NOV0601JUL0322OCT0222NOV0608AUG06 4 th CCCCC Certain Religious Workers CCCCC 5 th Targeted Employment Areas/Regional Centers and Pilot Programs CCCCC

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

Permanent Residence 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

Employment Based (EB) Permanent Residence Employer-sponsored or self-sponsored Multiple petitions Multi-Step Process PERM – filed with Department of Labor I-140 – Petition for Immigrant Worker (eligibility) I-485 – Register for Permanent Residence (requires visa number) For more information, visit

Employment Based (EB) Permanent Residence: 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 1 st authored articles/impact factors Citations to 1 st authored work Conference Presentations Peer Review/Manuscript Review Work For more information, visit

EB-1 Self Petition (contd) Factors considered (contd) References from Independent Experts Demonstrates your reputation Translates your work to a lay adjudicator Important to document claims Must meet at least 3 out of 10 regulatory criteria Preparation/Processing Times For more information, visit

EB-1 Employer Sponsored Outstanding Researcher/EB-1 (I-140, $580 ) Similar to Extraordinary Ability Must meet 2 out of 6 regulatory criteria Internationally Recognized as Outstanding At least 3 Years post-grad experience Time spent towards advanced degree can count only if graduate work is recognized as outstanding For more information, visit

EB-1 Employer Sponsored Requires employer sponsor Requires permanent job offer Qualified Employers: Academic Institutions Industry At least 3 FT researchers Recognition in field For more information, visit

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

New EB-1 Guidance (contd) 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

Employment Based: EB-2 National Interest Waiver/EB-2 (I-140, $580) Self-Petition, no employer sponsor reqd Three Prong Test Field is of Substantial Intrinsic Merit National Impact of Your Contributions You Are Substantially Better Than Your Peers Past Record of Achievement! Quota backlogs For more information, visit

EB-2 Self-Petition (contd) Physician Shortage Area NIW – EB-2 Self-Petition 5 Yr Commitment to Federally Designated Area State Department of Public Health must concur Will not get green card until 5 year service is complete For more information, visit

EB-2 Employer Sponsored Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps 2 nd Step – I rd Step – I-485 or IV Consular Process No filing fee for this step (contd) For more information, visit

Employment Based: Employer Sponsored Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps 2 nd Step – I rd Step – I-485 or IV Consular Process No filing fee for this step (contd) For more information, visit

Employment Based: Employer Sponsored Special Handling (PERM) Positions that involve classroom teaching Recruitment – National Professional Journal one print ad, or 30 day internet posting Best Qualified Standard Must be filed within 18 months of selection (contd) For more information, visit

Special Handling (contd) Prevailing wage First of 3 steps 2 nd Step – I rd Step – I-485 or IV Consular Process No filing fee for this step For more information, visit

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) For more information, visit

Permanent Resident Status Adjustment of Status (I-485) Adjustment portability H-1B Extensions One Year Three years Spouses (contd) For more information, visit

Issues Relating to NIV Status During Permanent Residency Process Important to Maintain NIV status Travel Extensions of Status Dependents For more information, visit

Immigration Opportunities Part II: 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 For more information, visit

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 For more information, visit

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… For more information, visit

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 For more information, visit

J-1 Waiver Options Waiver options Hardship Persecution No objection waiver (researchers only) For more information, visit

J-1 Waiver Options Federal government agency waiver National Science Foundation Department of Energy Health & Human Services U.S. Dept of Veterans Affairs Appalachian Regional Commission Delta Regional Authority waiver State 30 waiver (clinical only) For more information, visit

O-1 Alien of Extraordinary Ability Factors Considered in Initial Evaluation 1 st authored articles/impact factors Citations to 1 st authored work Conference presentations Book Chapters/review articles Peer reviewer/manuscript reviewer For more information, visit

O-1 (contd) Whats Included in the Petition Reference letters Independent referees Addressing O-1 criteria Corroborating Documentation Processing time/issues Length of approval Extensions For more information, visit

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

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Contact Information Suzanne B. Seltzer, Esq. Telephone: Fax: Websites:

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 © 2012 Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved. Copyright © 2012 All rights reserved.