Immigration Options for Scholars and Researchers Thursday, November 12, 2015 Andrew J. Zeltner, Esq. Klasko Immigration Law Partners, LLP Philadelphia New York Chicago

Klasko Immigration Law Partners, LLP Andrew J. Zeltner, Esq. Andrew Zeltner is an Associate in the Firm’s Philadelphia office and focuses his practice on both business and family- based immigration. Drew received his law degree from the Quinnipiac University School of Law. Drew is currently admitted to practice in New York and is a member of the American Immigration Lawyers Association. He also has particular experience in complex corporate immigration issues including labor certifications, L-1 petitions and EB-1 filings.

Klasko Immigration Law Partners, LLP Immigration Options for Scholars and Researchers Agenda H-1B Visas and Quota J-1 Visas and Waivers O-1 Visas Permanent Residence Status Q & A Session For more information, visit

Klasko Immigration Law Partners, 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 For more information, visit

Klasko Immigration Law Partners, LLP H-1B Quota What is it, and what does it mean? Separate quota for US-educated advanced degree holders Separate options for Canada, Mexico, Australia, Chile and Singapore Prospects for change Timing  April 1 filing date  October 1 start date For more information, visit

Klasko Immigration Law Partners, LLP Options for Dealing with H-1B Quota Quota-exempt employment Strategies to enhance chances of getting H-1B Alternative visa options Applying for permanent residence directly For more information, visit

Klasko Immigration Law Partners, 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 For more information, visit

Klasko Immigration Law Partners, LLP Travel and Status Issues for H-1B Approvals Change of status vs. consular visa issuance Travel after April 1 Maintaining status until October 1 For more information, visit

Klasko Immigration Law Partners, LLP J-1 Visas 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 visa  Waiver For more information, visit

Klasko Immigration Law Partners, LLP Avoiding Need for J-1 Waiver Medical Researchers  Who decides if 2 year return requirement? CIS – not DOS Visa, DS 2019, advisory opinion not determinative  Only subject if Skills list Government financing Graduate medical education or training For more information, visit

Klasko Immigration Law Partners, LLP Avoiding Need for J-1 Waiver  Skills list advocacy Country of citizenship or country of last residence  Country of last residence vs. country of last permanent residence Proving different skills list category Effect of new country of citizenship (cont’d) For more information, visit

Klasko Immigration Law Partners, LLP Visa Options Without Needing Waiver Anything other than H or L visa or change of status  O-1, TN-1, E-3 ok  Labor certification and I-140 can be approved I-485 cannot be filed (except clinical NIW) For more information, visit

Klasko Immigration Law Partners, LLP Fulfilling Two-Year Return Requirement Return to country of nationality or last residence? Can fulfill sequentially For more information, visit

Klasko Immigration Law Partners, LLP J-1 Waiver Options No objection statement Exceptional hardship Persecution Interested government agency For more information, visit

Klasko Immigration Law Partners, LLP No Objection Statement Researchers only Usually not helpful if U.S. or international organization funding Quickest and easiest waiver Attitudes of different countries For more information, visit

Klasko Immigration Law Partners, LLP Exceptional Hardship Waiver Hardship to U.S. citizen or LPR spouse or child Hardship must be “exceptional” Very difficult For more information, visit

Klasko Immigration Law Partners, LLP Persecution Waiver Individualized persecution Similar to asylum For more information, visit

Klasko Immigration Law Partners, LLP Interested Government Agency Waivers Research track  Usually through HHS  Peer review process – unlike CIS filings For more information, visit

Klasko Immigration Law Partners, 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 vs. clinical research  Excellence of foreign national’s research For more information, visit

Klasko Immigration Law Partners, LLP HHS Waivers Other Issues  Involvement of NIH scientists familiar with the research  Impact of Fulbright funding  Timing For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Other Medical Research Waivers Usually limited to agency contracts, grants or research programs Examples include DOD, NASA, DOE and DOI For more information, visit

Klasko Immigration Law Partners, LLP O-1 Visas Employer sponsored Standards Documentation Reference letters Processing time/issues Length of approval Extensions Spouses For more information, visit

Klasko Immigration Law Partners, LLP Permanent Residence Employer-sponsored, family-sponsored or self- sponsored Quotas/timing issues Impact on visa status Impact on family Impact on travel For more information, visit

Klasko Immigration Law Partners, LLP Permanent Resident Status Family Investment Asylum Lottery Employment For more information, visit

Klasko Immigration Law Partners, 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 For more information, visit

Klasko Immigration Law Partners, LLP Investment $500,000 or $1,000,000 Individual investment or regional center For more information, visit

Klasko Immigration Law Partners, LLP Asylum Individualized fear of persecution Race, religion, nationality, political opinion, social group, sexual persuasion For more information, visit

Klasko Immigration Law Partners, LLP Lottery Only specified countries One year window Effect of application on future visa applications For more information, visit

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions For more information, visit

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment 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 For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment Quotas  EB-2 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 For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Residency Quotas, Where Are We Now? Visa Bulletin for December 2015 Employment Based All Charge- ability Areas Except Those Listed CHINA- mainland born INDIAMEXICOPHILIPPINES 1 st CCCCC 2 nd C01FEB1201JUN07CC 3 rd 01SEP1515APR1222APR0401SEP1501AUG07 Other Workers 01SEP1501AUG0622APR0401SEP1501AUG07 4 th CCCCC Certain Religious Workers CCCCC 5 th Targeted Employment Areas/Regional Centers and Pilot Programs C15DEC13CCC

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment 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 For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment  National Interest Waiver EB-2 Standard  Exceptional ability or advanced degree  National priority  National impact Extensive documentation required Reference letters critical For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment For more information, visit Outstanding Researcher/EB-1 (I-140, filing fee $580)  Similar to Extraordinary Ability  Requires employer sponsor  At least 3 Years experience  Permanent job offer  Qualified Employers: Academic Institutions Industry  At least 3 FT researchers  Recognition in field (cont’d)

Klasko Immigration Law Partners, LLP EB-1 for Researchers Evaluating Eligibility CV Evaluation  1 st listed author publications In process; submitted; accepted; published; cited  Impact factor?  Citations Footnote Text  Presentations 1 st listed abstracts Oral vs. poster  Book chapters  Honors and awards  Manuscript reviewer  Media For more information, visit

Klasko Immigration Law Partners, LLP EB-1 for Researchers Evaluating Eligibility Evaluation Outside of CV  Importance/narrowness of field of expertise  Ability to explain importance  Significant contributions to field First, only, best, new discovery? Impact on field and other researchers New? Old? Sustained?  Referees For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP 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

Klasko Immigration Law Partners, LLP New EB-1 Guidance 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 (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment Other Factors  Not a peer review process  Importance of job title?  Importance of employer sponsorship?  File now, or wait? For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment Labor Certification Application (PERM)  Employer sponsored – employer must pay  Recruitment  Prevailing wage  Legal issues  Timing  First of 3 steps For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment Timing  Electronic filing  4 months?  Possibility of audit  First of three steps  Importance of filing before end of 5 th year in H-1B status For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment 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 For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment 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) For more information, visit (cont’d)

Klasko Immigration Law Partners, LLP Permanent Resident Status Employment 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 For more information, visit (cont’d)

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Klasko Immigration Law Partners, LLP DISCLAIMER / 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 © 2015 Klasko Immigration Law Partners, LLP. All rights reserved. Copyright © All rights reserved.