Immigration Workshop for International Faculty and Staff During the seminar: Please use your “Chat” function to ask questions Tien-Li Loke Walsh, Esq. Wolfsdorf Immigration Law Group VISA-LAW nd Street Santa Monica, CA © 2011 Wolfsdorf Immigration Law Group (all rights reserved) The contents of this document are proprietary and should not be duplicated or shared without express permission from Wolfsdorf Immigration.

Immigrant Visa (“Green Card”) Options Green Card Lottery ( 50,000 green cards Registration period –October/part of November No application fee Must be eligible to participate

Green Card Lottery Based on country of birth (not citizenship) Countries that are NOT eligible include: Bangladesh, Brazil, Canada, P.R. China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and Vietnam Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible! “Cross-charge” to spouse’s country of birth?

Immigrant Visa (“Green Card”) Options Family Based Immigrant Visas –Immediate Relative: spouse, parent, minor children of U.S. citizens Immediate benefits – work permit and travel document within 2-3 months 4-6 months processing Conditional 2 year green card (marriage cases) Adult child must be 21 years old

Family Based Immigrant Visas continued... Unmarried Adult Children of U.S. citizens (F1) (6 year backlog) Spouse/Children of Legal Permanent Resident (LPR) (F2A) (4-5 year backlog) Unmarried adult children of LPR (F2B) (9 year backlog) Married adult children of U.S. citizens (F3) (9 year backlog) Brothers and sisters of U.S. citizens (F4) (11 year backlog)

Employment Based Options EB-1 –Alien of Extraordinary Ability –Outstanding Professor/Researcher EB-2 –PERM Special Handling Labor Certification –Schedule A, Group II: Alien of Exceptional Ability –National Interest Waiver (NIW) –PERM Labor Certification EB-3 –PERM Labor Certification

Special Handling PERM Labor Certification (EB-2) University/College Teachers Memorializes competitive recruitment process One advertisement in national professional journal –Must list title, job duties (include teaching), minimum requirements for job Must file within 18 months of “selection” Standard – “most qualified” candidate (not “minimally qualified” candidate)

Special Handling PERM LC What Kind of Job Qualifies for Special Handling? –Permanent, full-time –Actual “classroom” teaching Team teaching one course? –Seems to be ok Course for credit? Not strictly required but easier to document if audited What about Librarians, Admissions Counselors, Advisors, etc.?

Special Handling Filing Process 1.Submit PERM to DOL 2.I-140 Immigrant visa petition 3.I-485 Application to Adjust Status to Permanent Residence (AOS) –If retrogressed – can’t file AOS until priority date (PD) is current –China and India 

Employment- Based All Chargeabilit y Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1stCCCCC 2ndC15MAR08 CC 3rd15JAN0608SEP0401AUG0215JAN06 Other Workers01JAN0622APR0322JUL0201JAN06 4thCCCCC Priority Date (PD) = date of filing PERM application or filing of I-140 Immigrant Visa Petition If retrogressed – can’t file I-485 AOS until PD is current Visa Bulletin (

Special Handling PERM LC Common Issues/Problems –Missed 18 month window –No advertisement in national journal Print versus electronic ads - Update –EB-2 retrogression for Chinese and Indian nationals

EB-12 or EB-1B Outstanding Professor/Researcher –Employer-sponsored University or institute of higher learning Private industry –3 full-time research positions –company must have documented achievements in academic field –Permanent, tenured or tenure-track What is permanent? –Recognized internationally as outstanding

EB-1 Outstanding Professor/Researcher 2 out of 6 criteria – commonly: Major awards or prizes Membership in association requiring outstanding achievement Published materials in professional publications written by others about the alien Participation as a judge of the work of others Original scientific or scholarly contributions Authorship of scholarly articles/books in the area 3 years experience in teaching and/or research Research experience while working on advanced degree must be outstanding; or If teaching, must have full responsibility for class

EB-1 Process Step 1: I-140 Immigrant visa petition Step 2: I-485 Application to Adjust Status to Permanent Residence (AOS) »Within days - Employment Authorization Document (EAD) and Advance Parole travel document File concurrently or separately –Can premium process I-140 ($1,225)

EB-2 Schedule A, Group II: Alien of Exceptional Ability Exceptional = degree of expertise significantly above that ordinarily encountered in the sciences, arts or business widespread acclaim and international recognition by recognized experts in the field; and work in that field during the past year and the intended work in the United States will require exceptional ability

Schedule A: Group II Criteria Lesser national or international prizes of awards Membership in associations requiring outstanding achievements Published materials or mainstream media written by others about the alien Participation, individually or on a panel, as the judge of the work of others (peer review activity) Original contributions of major significance Authorship of books or articles Conference presentations Critical role for distinguished organizations or productions/events High compensation/salary Commercial success Display of work at exhibitions, film festivals Any comparable evidence

Schedule A, Group II: Alien of Exceptional Ability Requires employer sponsorship Process is hybrid of PERM and Outstanding Professor/Researcher and Extraordinary Ability (EB-1) –Obtain prevailing wage determination –Notice must be posted at worksite –File I-140/I-485 separately or concurrently

PERM Labor Certification EB-2 versus EB-3 If job requires –higher degree or BA + 5 years of experience = EB-2 –The following = EB-3 Professionals with BA degree or foreign equivalent Skilled Workers with 2 years experience Other Workers Why does it matter?

Process Step 1: PERM Labor Certification process USCIS and DOL Employer must conduct “good faith” recruitment efforts and show there is no qualified U.S. worker to do the job Step 2: I-140 Immigrant visa petition Step 3: I-485 Application to Adjust Status to Permanent Residence (AOS) If retrogressed – can’t file AOS until priority date (PD) is current China and India 

Employment- Based All Chargeabilit y Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1stCCCCC 2ndC15MAR08 CC 3rd15JAN0608SEP0401AUG0215JAN06 Other Workers01JAN0622APR0322JUL0201JAN06 4thCCCCC Priority Date (PD) = date of filing PERM application or filing of I-140 Immigrant Visa Petition If retrogressed – can’t file I-485 AOS until PD is current Visa Bulletin (

PERM Issues Deciding between EB-2 and EB-3 –NOT based on alien’s educational background – based on the actual minimum requirements for job Tricks that don’t work: –Tailoring minimum job requirements to your experience or education –Foreign language requirements Cannot use: –unauthorized employment –experience gained with sponsoring employer

Self-Petitioning Options (EB-1A or EB-11) Alien of Extraordinary Ability –One-time achievement (major, international award) or at least 3 out of 10 criteria –Self-petition or employer-sponsored –If already have O-1 under sciences, athletics, business, education – may qualify under EB-1

Criteria: Extraordinary Ability Lesser national or international prizes of awards Membership in associations requiring outstanding achievements Published materials or mainstream media written by others about the alien Participation, individually or on a panel, as the judge of the work of others (peer review activity) Original contributions of major significance Authorship of books or articles Conference presentations Critical role for distinguished organizations or productions/events High compensation/salary Commercial success Display of work at exhibitions, film festivals Any comparable evidence

EB-1 Process Step 1: I-140 Immigrant visa petition Step 2: I-485 Application to Adjust Status to Permanent Residence (AOS) »Within days - Employment Authorization Document (EAD) and Advance Parole travel document File concurrently or separately –Can premium process I-140

EB-2 National Interest Waiver (NIW) Can self-petition (no employer required) No premium processing Criteria –Work has intrinsic merit –Work is national in scope –In the national interest to waive the labor certification process Must show that past record justifies the belief that you will continue to serve in the national interest of the United States

National Interest Waiver Useful evidence includes: Publication of scholarly books and articles Participation, individually or on a panel, as the judge of the work of others (peer review activity) Original contributions of major significance National grants or funding Conference presentations Playing a critical role in scientific or research studies Citation record

Retrogression Options for Chinese/Indian faculty and staff –Consider filing EB-1 (Extraordinary Ability or Outstanding Researcher) no backlogs –File two applications? EB-1 and EB-2

Summary of Employment-Based Options EB-1 –Alien of Extraordinary Ability (can self-petition) –Outstanding Professor/Researcher EB-2 –Special Handling PERM –Schedule A, Group II: Alien of Exceptional Ability –NIW (can self-petition) –PERM Labor Certification EB-3 –PERM Labor Certification

Tips to Build An EB-1 or NIW Case Publish or perish – international peer- reviewed journals Speak at national or international conferences Engage in peer-review activity for journals, conference committees, scientific boards Mainstream media coverage – do it!

Common Green Card Issues When to Start Green Card Process What is latest you should start? –4.5 years into H-1B Maintenance of status Always maintain underlying status

Common Green Card Issues What Happens to the Green Card if you Change Employers? Keep green card if: I-140 approved; and I-485 pending for more than 180 days (approx. 6 months); and job is same or similar position

What Happens When You Reach 6-year Cap? Recapturing time spent outside the U.S. 2 ways to extend H-1B beyond 6 years Green card application pending for more than 1 year –Issued in one-year increments I-140 approved and cannot file I-485 application because of backlogs or “retrogression” –Issued in three-year increments

Other Nonimmigrant Visa Options TN NAFTA visas for Canadians and Mexicans –Issued for 3 years E-3 visas for Australian professionals –Issued for 2 years; no limit O-1 Alien of Extraordinary Ability –issued for 3 years; renewable indefinitely in 1 or 3 year increments

O-1 Alien of Extraordinary Ability Sciences, education, athletics, business, arts, motion pictures and television Major award Lesser national or international prizes of awards Membership in associations requiring outstanding achievements Published materials or mainstream media written by others about the alien Participation, individually or on a panel, as the judge of the work of others Original contributions of major significance Authorship of books or articles Conference presentations Critical role for distinguished organizations or productions/events High compensation/salary Commercial success Display of work at exhibitions, film festivals

Spouses and Minor Children Nonimmigrant visas: –Derivative classification Look out for age-outs when child turns 21 years old –No employment authorization – spouses may apply for their own work visa if they qualify Immigrant visas –Eligible to file I-485 AOS with principal applicant

Options for J-1s subject to two-year home residency requirement Prohibited from changing to H-1B or L-1 or filing I-485 AOS (green card) until 2 year obligation is satisfied or alien obtains waiver May obtain the following visas even if J-1 subject: –O-1, TN, E-3, TN, F-1 –Must still comply with two-year home residency obligation

H-1B Portability Can transfer H-1B to new employer at any time Portability allows commencement of new job upon “filing” of new petition – no need to wait for approval –Issue: gaps in between jobs Caution: Cap-exempt H-1B to cap-subject employer (university to private industry) –Subject to H-1B cap (never been counted)

I have my Green Card, what now? Maintaining the green card Physical presence requirements Becoming a U.S. citizen –Eligibility requirements

Hot Topics: Trends for the Future? Start-up Visa Act for investors and entrepreneurs Buy a House = Get a Green Card Dealing with retrogression – ending per- country limits for employment based categories –Good news for EB-2 Chinese and Indians –Bad news for everyone else

Q & A Please use your “Chat” function to ask questions For follow-up questions: Tien-Li Loke Walsh, Esq. or Daniel Manuel, Academic Services Coordinator Wolfsdorf Immigration Law Group VISA-LAW nd Street Santa Monica, CA 90401