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 University’s Law Center (cum laude).

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 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 Does not ‘waive’ the two years, just puts it off for awhile 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: 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 For more information, visit

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 For more information, visit

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 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 (cont’d)  What’s 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

Questions? For more information, visit

Part II Pathways to Permanent Residency

Immigration Opportunities Part II: 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

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 (cont’d) Factors considered (cont’d)  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 (EA)? Or internationally recognized as outstanding (OR)? For more information, visit

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 For more information, visit

Employment Based: EB-2  National Interest Waiver/EB-2 (I-140, $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 Past Record of Achievement! Quota backlogs For more information, visit

EB-2 Self-Petition (cont’d)  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-140  3 rd Step – I-485 or IV Consular Process No filing fee for this step (cont’d) 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 (cont’d) For more information, visit

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

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

Questions?

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.