Immigration Options Immigration Options for Medical Researchers H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17 th Floor317 Madison Ave., Suite 1518 Philadelphia, PA New York, NY

Klasko, Rulon, Stock & Seltzer, LLP H. Ronald Klasko, Esq. Ron Klasko has been providing immigration assistance and solutions to leading universities, hospitals, and research institutions for over 25 years. Ron is a past National President of the American Immigration Lawyers Association. He has been a member of the AILA Board of Governors since His firm, which is the first immigration law firm global partner of NAFSA: Association of International Educators, is authorized counsel for the University of Texas system. The firm has been selected as one of six top tier immigration firms in the United States for three consecutive years by the prestigious Chambers Global: The World's Leading Lawyers for Business (Chambers and Partners). This publication noted the firm as the “strongest in the country” when it comes to representing clients in the university research and medical sectors and recognized Ron as “a leading national practitioner who really does it all” who is “literally on the cutting edge” when it comes to immigration policy and legislative issues. Ron has been selected as one of twelve top tier immigration lawyers in the US by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 and 2008 editions selected Ron as the “most highly regarded” immigration lawyer in the world. Ron is a frequent author and lecturer on hospital and university-related immigration law 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.

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas Basic requirements  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

Klasko, Rulon, Stock & Seltzer, LLP H-1B Quota What is it, and what does it mean?  65,000 visas Separate quota for US-educated advanced degree holders  20,000 visas Separate options for Canada, Mexico, Australia, Chile and Singapore  TN-1, E-3, H-1B1 Prospects for change Timing  April 1 filing date  October 1 start date

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas Length of approval and extensions  3 year initial approval and 3 year extension  6 year maximum – any combination of employers  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

Klasko, Rulon, Stock & Seltzer, LLP 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 J-1 Visas

Klasko, Rulon, Stock & Seltzer, LLP Obtaining a J-1 Waiver General  Choosing between research track and clinical track  Research track Usually through HHS Peer review process – unlike CIS filings Do not need 3 years in H-1B?

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP HHS Waivers Other Issues  Involvement of NIH scientists familiar with the research  Impact of Fulbright funding  Timing (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Other Medical Research Waivers Usually limited to agency contracts, grants or research programs Examples include DOD, NASA, DOE and DOI

Klasko, Rulon, Stock & Seltzer, LLP Employer sponsored Standards  National or international reputation Documentation Reference letters Length of approval  3 years  Unlimited one year extensions Spouses  O-3 cannot be employed O-1 Visas

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Family Investment Asylum Lottery Employment

Klasko, Rulon, Stock & Seltzer, LLP Spouse of U.S. citizen  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 Family

Klasko, Rulon, Stock & Seltzer, LLP Investment $500,000 or $1,000,000 Individual investment or regional center

Klasko, Rulon, Stock & Seltzer, LLP Asylum Individualized fear of persecution Race, religion, nationality, political opinion, social group, sexual persuasion

Klasko, Rulon, Stock & Seltzer, LLP Lottery Only specified countries One year window Effect of application on future visa applications

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) 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

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) Employer-Sponsored  Outstanding Researcher EB-1 “Permanent position” Similar to extraordinary ability

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) Evaluating Eligibility  1 st listed author publications  Impact factor?  Citations  Presentations 1 st listed abstracts  Book chapters  Honors and awards  Manuscripts reviewer  Importance/narrowness of field of expertise  Referees

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) Choosing Referees  How many?  Good C.V.’s  Prestigious institutions  Geographical diversity One per institution  Impartiality

Klasko, Rulon, Stock & Seltzer, LLP 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?

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d)  Labor Certification Application (PERM) EB-2 Employer must:  Pay attorney fees and advertising costs  Define “minimum requirements”  Engage in required recruitment (approximately 4-5 months)  Interview U.S. worker applicants  Prove unavailability of qualified, interested, and available U.S. worker  Pay prevailing wage

Klasko, Rulon, Stock & Seltzer, LLP Special Handling Labor Certification (PERM) Employer-sponsored Must be “some classroom teaching” Nationwide competitive recruitment  At least one print ad “Selected” within last 18 months EB-2

Klasko, Rulon, Stock & Seltzer, LLP Special Handling Labor Certification (PERM) Can apply to attendings and other clinicians if “some classroom teaching”  Can be very small percentage  Can be teaching of residents in a classroom Choice if selection more than 18 months ago  “Reselection” One national print ad  Regular recruitment Most qualified standard still applies (cont’d)

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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) Quotas  Visa Bulletin (  Per country of birth, per preference category, per fiscal year  Filing date is “priority date”  EB-1 (extraordinary ability, outstanding researcher)  No quota wait

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) Quotas  EB-2 (national interest waiver and labor certification) 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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment (cont’d) I-140 Petition  1 st step for EB-1 and national interest waiver  2 nd 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

Klasko, Rulon, Stock & Seltzer, LLP 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)

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP Travel Issues Potential Problems  Intent to return – F & J vs. H &O  Visa interview delays  Security clearances  Technology Alert List  222(g) Possible solutions  Don’t travel  Canada/Mexico  Advance Parole

Klasko, Rulon, Stock & Seltzer, LLP Questions ?

Klasko, Rulon, Stock & Seltzer, LLP For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP (Philadelphia) (New York)