March 2, 2012 Suzanne B. Seltzer, Esq. Klasko, Rulon, Stock & Seltzer, LLP New York Philadelphia 317 Madison Avenue, Suite John F. Kennedy Blvd., Floor 17 New York, NY Philadelphia, PA Post Student Years: Immigration Options

Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer, Esq. Suzanne B. Seltzer is a partner of Klasko, Rulon, Stock & Seltzer LLP. Ms. Seltzer is the Chair of the American Immigration Lawyer's Association (AILA) USCIS Benefits & Policy Liaison Committee, is a member of AILA’s InterAgency Liaison Committee, and recently completed her tenure as the Vermont Service Center (VSC) liaison and as a NAFSA Regulatory Ombudsman. 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).

Klasko, Rulon, Stock & Seltzer, LLP Hot Topics in Immigration Law Agenda H-1B Visas H-1B Requirements H-1B Alternatives Introduction to Permanent Residency Q&As

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas Basic requirements  Job Offer  Prevailing Wage  Specialty occupation  Position normally requires at least a Bachelors or higher degree in a related field  Legal/Filing fees  Maximum of 6 years  Procedure and processing times

Klasko, Rulon, Stock & Seltzer, LLP H-1B Visas Part-time or full-time Length of approval Extensions Portability Spouses and Employment Authorization Travel

Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Ups Must establish company with employer tax I.D. number Can company be owned by H-1B employee?  Must be W-2 employee  Company separate entity from owner/employee Company right of control over employee Board of Directors? Company must prove  Financial ability to pay salary  Real job to be done by H-1B  Place of business

Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Ups Other employees or owners required?  Ability to hire/fire I mportance of business plan/financial projections Prevailing Wage  CEO vs. function-descriptive position

Klasko, Rulon, Stock & Seltzer, LLP H-1B Quota What is it and what does it mean?  20,000 for US awarded advanced degrees  FY 2012 gone by October 19, 2011  FY 2011 gone by December 22, 2010  FY 2010 gone by April 2009  FY 2009 gone by April 2008  FY 2008 gone by April 2007

Klasko, Rulon, Stock & Seltzer, LLP H-1B Quota 65,000 H-1Bs  FY 2012 gone by November 22, 2011  FY 2011 gone by January 26, 2011  FY 2010 gone by December 2009  FY 2009 gone by April 2008  FY 2008 gone by April 2007  FY 2007 gone by May 2006

Klasko, Rulon, Stock & Seltzer, LLP Avoiding H-1B Quota Exemption based on employer  Universities  Non-profits affiliated with universities Increased scrutiny of affiliations  Non-profit research organizations  Government research organizations

Klasko, Rulon, Stock & Seltzer, LLP Avoiding H-1B Quota Exemption based on employee  Previously counted (in last 6 years)  Singapore/Chile  Concurrent employment

Klasko, Rulon, Stock & Seltzer, LLP Travel and Status Issues for H-1B Approvals Change of status vs. consular visa issuance  Visa - Permission to re-enter the U.S. after a trip abroad (stamp in passport)  Need visa in specific classification to re-enter in that status  Status - Permission to remain in the U.S. for a fixed period (Denoted by ‘I-94’ card and I-20 or DS-2019)  Only hold status in one classification at a time (i.e. - cannot have an F and an H)

Klasko, Rulon, Stock & Seltzer, LLP Travel and Status Issues Travel after April 1  Depart US, relinquish I-94  F visa to come back to use OPT?  What about H? What happens to petition? Maintaining status until October 1  “Cap gap” relief  OPT must be valid at time H-1B petition is filed  Extends only until Sept 30

Klasko, Rulon, Stock & Seltzer, LLP H-1B Alternatives: Ls L-1: ‘intracompany transfer’  Must have worked for petitioning company overseas for at least one year in the last three years  For execs, managers, or special knowledge  Spouse eligible for employment authorization  Maximum 7 years in L status NOTE: H & L combined – max 7 years

Klasko, Rulon, Stock & Seltzer, LLP Alternatives: Es ■ Must be national of treaty country  ■ Employing company must be owned at least 50% by treaty country nationals ■ No quota and can be extended indefinitely ■ Spouse eligible for employment authorization

Klasko, Rulon, Stock & Seltzer, LLP Alternatives: TN Citizens of Canada and Mexico Must have employer and job offer Profession must be on the NAFTA list Applicant must have qualifications as indicated on NAFTA list Must evidence non-immigrant intent

Klasko, Rulon, Stock & Seltzer, LLP Alternatives I visa – journalists O visa  Artists with distinction in field; or  Scientists with extraordinary ability E-3 – Australians only, similar to H-1B Dependent on spouse visa

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP Immigrant Versus 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)

Klasko, Rulon, Stock & Seltzer, LLP Nonimmigrant to Immigrant F-1 – attend school F-1 OPT – start work H-1B/L-1 – continue working; max 6 years total in H, 7 in L H-1B – change employer, continues to count against 6 years maximum (L trickier to change)

Klasko, Rulon, Stock & Seltzer, LLP 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?

Klasko, Rulon, Stock & Seltzer, LLP How Do I Apply? Family Investment Asylum Employment DV Lottery

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas Annual Limit on Permanent Residency Per Country Limit – 7% Allocated by:  Priority Date – place in line  Preference Category

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas Employment Based Preferences  First Preference (EB-1) Extraordinary Ability, Outstanding Researcher, Multinational Executive  Second Preference (EB-2) Advanced Degreed Professionals, including Bachelors plus 5 years exp.  Third Preference (EB-3) Skilled Worker (2+ years experience), Bachelor’s Degree  Fifth Preference (EB-5) Investment in the U.S. that creates at least 10 U.S. jobs

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas, Where Are We Now? Visa Bulletin March 2012 All Chargeability Areas Except Those Listed CHINA- mainland born INDIAMEXICO PHILIPP- INES/ DOMINICAN REPUBLIC Employment Based 1stCCCCC 2ndC01MAY10 CC 3rd15MAR0601JAN0522AUG0215MAR06 5thCCCCC

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas, Where Are We Now? “Oversubscribed” versus “Available”  Available if: Visa Bulletin indicates “C” = current Priority date earlier than posted date  Predictions from State Department for FY2012 EB-1 approvals are down almost 50% This will advance EB-2 in China or India China EB-3 will advance a little; India EB-3 not at all

Klasko, Rulon, Stock & Seltzer, LLP Employer-sponsored or self-sponsored Labor certification or extraordinary/NIW Filing multiple under different categories? Multi-Step Process  Department of Labor?  USCIS I-140  USCIS – I-485 Non-Immigrant Status? Employment Based (EB) Permanent Residency Considerations

Klasko, Rulon, Stock & Seltzer, LLP For Further Information Suzanne B. Seltzer, Esq. Klasko, Rulon, Stock & Seltzer, LLP Telephone: (New York) (Philadelphia) Websites: Blog: