1. Immigration Issues For Post-Doctoral Researchers
Carina Hansen
Director, International Students and Scholars
Office of International Affairs
Amanda Giandinoto
Immigration Specialist
College of Medicine
Alexandra Phillips
College of Engineering
Mark J. Hedien
Associate General Counsel
Office of Legal Affairs
June 7, 2017

2. DISCLAIMER
Nothing in this presentation is intended to provide legal advice. Immigration cases require examination of issues specific to each individual situation. If you have questions specific to your personal situation, you should seek the advice of an immigration attorney.

3. Brief Glossary: Government Agencies
DHS: Department of Homeland Security. Cabinet-level agency that includes USCIS, ICE, and CBP -- components that used to make up the Immigration & Naturalization Service (INS).
USCIS: United States Citizenship & Immigration Services. Responsible for adjudication of petitions and applications for immigration benefits (e.g., I-140, I-129, I-485).
ICE: Immigration & Customs Enforcement. Responsible for interior enforcement (removal\deportation), I-9 enforcement, and for operation of the Student and Exchange Visitor Information System (“SEVIS”) for F-1 students and J-1 Exchange visitors.
CBP: Customs & Border Protection. Responsible for securing borders and controlling entry of individuals into the U.S.
DOL: United States Department of Labor. Responsible for adjudication of applications for permanent alien labor certification (ETA-9089), labor condition applications for H-1b and E- 3 nonimmigrant workers (ETA-9035), and prevailing wage determinations (ETA-9141).
State: United States Department of State. Responsible for issuing visas overseas for entrance to U.S. and administration of the J-1 exchange program, although ICE administers SEVIS component.
ODH: Ohio Department of Health. Responsible for setting criteria for issuance of recommendation letters to U.S. Dept. of State in physician J-1 waiver cases and for setting criteria for issuance of letters indicating whether a physician’s service for 5 years in an underserved area is in the “public interest” for purposes of a Physician-NIW I-140 petition.

4. Brief Glossary: Forms
ETA-9141: application for prevailing wage determination filed with DOL. Always pre-requisite to ETA If using safe harbor process, also a pre-requisite to ETA-9035.
ETA-9035: labor condition application for nonimmigrant worker filed with DOL. Employer asks DOL to certify that H-1b or E-3 employment won’t adversely affect working conditions of U.S. workers. Prerequisite to I-129 for H-1bs and E-3s (but not O-1s).
ETA-9089: application for permanent alien labor certification. Employer asks DOL to certify that there are no available U.S. workers for a position being offered on a permanent basis to an alien. (No “minimally qualified” U.S. workers for most cases; no “equally qualified” U. S. workers in cases involving college and university teaching positions.) Pre-requisite to the filing of most I-140s.
I-129: petition for a nonimmigrant alien worker filed with USCIS. This is an employer’s request to USCIS to classify an alien in a temporary nonimmigrant status permitting the alien to work for the employer for a limited duration (e.g., H-1b, E-3, O-1).
I-140: immigrant petition for alien worker filed with USCIS. This is employer’s request to USCIS to classify an alien in a preference category that would eventually permit the alien to apply for permanent residence.
I-485: application to adjust status to permanent residence – or the “green card” application. This is the alien’s actual application to become a permanent resident. The alien’s spouse and children under 21 may file I-485s with the principal alien. The I-485 may be filed only when: (1) the priority date based on the alien’s country of birth and preference category is current; and (2) there is an approved or pending I-140.
I-765: application for temporary employment authorization (“EAD”).
I-131: application for temporary travel authorization (“advance parole”).
I-907: request for premium processing. (Payment of $1225 to U.S. government to make faster decision on certain types of I-129s and I-140s.)

5. A Few Basics
Decisions in employment-based immigration cases are primarily the employer’s responsibility and handling of cases will be guided by the employer.
NO ONE at OSU may sign an immigration form on behalf of the university without first consulting Legal Affairs or OIA (e.g., Form I-129, I-140, ETA-9089, or G-28.)

6. Official Government Processing Times
Current Government Processing Times (official USCIS posted times based on March 31, 2017 update -- most recent available). Processing time after case submitted to government:
I-129 H-1b (non-premium): 4 months.
I-140 (non-premium): 7-9 months (depending on category).
I-485: 8 months (note: I-485 processing times can be much, much longer depending on country of birth\citizenship and security checks).
I-765/I-131 (adjustment applicant): 2.5 months.
Prevailing Wage (DOL): 96 days.
Permanent Labor Certification: 71 days.

7. Nonimmigrant Statuses For Temporary Stay
F-1 International Students. (Includes individuals with OPT and STEM OPT.)
J-1 International Exchange Visitors. (Many post-docs and visiting scholars.)
H-1b Temporary Workers in a specialty occupation.
O-1 Aliens of Extraordinary Ability (very high standard).
E-3 (Australia), TN (Canada and Mexico).

8. Nonimmigrant Intent
Many statuses, including F-1, J-1, and B1\B2, require the alien to intend to return to a foreign residence. Starting the permanent residence (“green card”) process (I-130, I-140, I-485, labor certification) is an indication that the alien no longer has this intent. A few examples of problems that may arise:
Starting the permanent residence process may hinder or eliminate ability to obtain F-1, J-1, or B1\B2 visas in the future or to extend those statuses.
Starting the permanent residence process shortly after entry into the US in F-1, J-1, B1\B2 status or shortly after a change to F-1, J-1, or B1\B2 status may constitute evidence that an alien misrepresented intent.

9. Nonimmigrant Intent (Cont’d)
H-1b status has “dual intent.” Starting the permanent residence process has no impact on ability to get H-1b visa, change to H-1b status, extend H-1b status, or enter the United States in H-1b status. H-1bs may even leave and return to U.S. with pending I-485 without advance parole, if leaving and coming back to same employment.
O-1s have modified version of “dual intent.” Starting the permanent residence process (labor certification, I-130, I-140) typically does not impact ability to obtain O-1 visa, enter U.S. in O-1 status, or to extend O-1 status. However, O-1s must have advance parole to leave U.S. and return while I-485 is pending (or I-485 is abandoned).
It is always safest to start the permanent residence process from H-1b or O-1 status.
E-3 and TN nonimmigrants do not specifically have dual intent, but guidance indicates that beginning permanent residence process, or even having approved I-140 does not automatically negate nonimmigrant intent. (Consult with attorney about risks.)

10. Nonimmigrant Intent (Cont’d)
Is it possible to go directly from F-1 or J-1 status to permanent residence?
Yes. However:
Beginning this process immediately after entry to U.S. or change of status to F-1 or J-1 may raise questions about intent at the time of entry or change of status;
Should not travel internationally without advance parole;
Understand that denial of permanent residence case may result in inability to enter U.S. as an F-1, J-1, or B1\B2 in the future.
J-1s may need waiver of 2-year home residence requirement first.

11. F-1 Students
All OSU F-1 matters are handled by the Office of International Affairs.
Admitted for full course of study in the United States.
Permitted to engage in 20 hours per week of on-campus employment (full-time during holiday periods). This would include GRAs and GTAs, for example.
Any work over 20 hours per week is a status violation that may require student to leave the United States. There is no “minimal” violation and no reinstatement for unauthorized employment. Consequences are severe.

12. F-1 Post-Graduation Employment
Optional practical training (OPT) employment authorization may be obtained for 12 months after graduation for work “directly related” to major area of study. (Relatedness is under increasing scrutiny.)
An additional 24 months of OPT may be granted to those with a STEM degree working for an e-verify employer (like OSU). Requires employer to complete new Form I-983.

13. J-1 Exchange Visitors
All OSU sponsored J-1 matters are handled by OIA. Most common J-1 categories here are Research Scholars and Short Term Scholars.
J-1 scholars must conduct work in the manner and place specified to OIA and, in turn, to the U.S. Department of State specified in Form DS Notify OIA of changes.
Funding can come from wide range of different sources (even personal funds); no prevailing wage; must prove only minimum level of support; health insurance.
Program length depends on category. (E.g., five year maximum for Research Scholar, then 24-month repeat bar.)

14. J-1 2-year rule – 212(e)
Many J-1s are required to return home for 2 years prior to obtaining an H-1b visa, obtaining a green card, or being able to change nonimmigrant status in the U.S.
2-year rule may apply due to home country skills list, funding source (e.g., Fulbright), or due to post-graduate medical training in J-1 status for physicians.
2-year rule may be waived based on no-objection letter from home country for certain cases (e.g., skills list); exceptional hardship to U.S. citizen or permanent resident spouse or child; persecution in home country; and a few other more complex waiver categories.
J-1 physicians are not eligible for standard no-objection waiver. Different types of waivers may be available to physicians – highly complex topic.

15. J-1 2-year rule (cont’d)
Can receive O-1, E-3, or TN visa even if subject to 2-year rule.
Canadians are visa exempt, and can enter the U.S. in H-1b status even if subject to 2-year rule (but can’t get green card).
Under current interpretation, may serve 2 years in home country in aggregate (i.e., not required to do it all at one time).
Must generally spend 2 years in country of residence when DS-2019 was issued (e.g., 2 years in EU overall not good enough for citizen of Belgium).

16. H-1b Temporary Workers All OSU sponsored H-1bs are handled by OIA.
Position must require at least a bachelor’s degree in a specialty occupation (not just any bachelor’s degree).
Requires payment of prevailing wage and approval of Labor Condition Application (LCA) by U.S. Department of Labor (DOL).
Filed on Form I-129.

17. What is an “Internal Wage?”
For an H-1b, an employer may either request DOL to determine the prevailing wage for a position, or may make its own determination based on guidelines provided by DOL. (Permanent labor certification requires DOL determination.)
DOL is now taking up to 3 months to issue a prevailing wage.
Only upon recommendation from OIA, a unit may use an “internal” determination (done by OIA, not the unit).
Maybe safe for higher-paid positions (e.g., faculty), but can be very difficult to predict DOL determinations for some positions (e.g., post-docs).
If done wrong, employer may be exposed to liability for fines or back wages.

18. How long can someone be an H-1b?
H-1b Duration
How long can someone be an H-1b?
An individual can be in H-1b status for a maximum of 6 years. Then must spend 1 year out of U.S. before another 6 years is available. Time spent outside U.S. (“recapture time”) does not count towards six year total. Exceptions to 6 year limit (very generally):
Approved I-140 and priority date is not current; or
Labor certification or I-140 filed more than 365 days prior to requested post-6th year start date (and no final denial of labor certification and I-140).
(Note: I-140 or labor certification can be for different employer than filing H-1b petition. If risk of previous employer withdrawal, speak to attorney.)

19. Premium Processing
Premium processing is an additional $1225 fee paid to the Department of Homeland Security to request that the government issue an initial response in certain cases (e.g. I-129 or I-140) in 15 days.
At OSU, the employee may not pay for premium processing. OSU pays for the OSU side of the case.
USCIS suspended premium processing for H-1bs on April 3. Official non-premium processing time is currently about 4 months.
Premium processing still available for O-1s and I-140s.
Current H-1bs may start work with new employer upon filing of new H-1b petition (need not wait for approval).

20. Expedite Criteria
Employer may request that H-1b petition be “expedited.” This is an entirely discretionary decision made by USCIS, based on: severe financial loss to company or ​person​;​ emergency situation;​ humanitarian reasons;​ nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​ Department of Defense or ​n​ational ​i​nterest ​s​ituation; USCIS error; or​ compelling interest of USCIS.​
Some cases being approved in as little as 1-2 months even without expedite requests, but no guarantee that this will happen. However, processing times do seem to be coming down.

21. H-4 Employment Authorization
If an H-1b has an approved I-140 filed on his/her behalf, the H-4 spouse may apply for employment authorization. The H-4 employment authorization will be limited to the validity period of H-4 status (usually the same as the H-1b validity). H-4 EADs will not receive automatic employment authorization extensions upon filing of extension application. Speculation that current administration may end H-4 employment authorization.

22. O-1 Aliens of Extraordinary Ability
Handled by The Office of Legal Affairs or attorney appointed by the Ohio Attorney General’s Office.
Filed on Form I-129.
Alien must have “sustained national or international acclaim” and have risen to the very top of field.
Not quite as hard as it sounds but not easy; time intensive to prepare and file.
3 years initially; indefinite extensions 1 year at a time after that.

23. Other Statuses Seen at OSU
E-3 for Australian citizens. Similar to H-1b, but granted for two years at a time; spouse can obtain employment authorization.
TN for Canadian or Mexican citizen working in a professional position on NAFTA schedule. Canadians are visa exempt and usually apply at the border.

24. PERMANENT RESIDENCE (“GREEN CARD”)
Normally Three Steps:
Prove no U.S. workers ready, able, and willing to take job. (Labor Certification – filed with DOL by employer on Form ETA-9089.)
Petition for Immigrant Worker to classify alien in appropriate employment-based immigration category (filed with USCIS by employer on Form I-140).
If priority date is current, alien and family members apply for permanent residence and temporary employment and travel authorization (filed with USCIS by alien on Forms I-485, I-765, and I-131). Priority dates are often an issue for those born in India and China.

25. Permanent Residence Process at OSU
ALL permanent residence filings on behalf of OSU are handled by the Office of Legal Affairs or by an attorney appointed by the Ohio Attorney General’s Office. This includes any case where someone at OSU is signing a form on behalf of the University. (Including EB-1b “Outstanding Researcher” cases.)
It does not matter if the alien is willing to pay for the outside attorney. At OSU, the alien is not permitted to pay for the OSU side of the permanent residence process.
The Office of Legal Affairs is free to units (units must pay out-pocket costs such as filing fees and advertising for labor certifications). If outside counsel is hired, units must pay attorney fees.

26. Is there anything an alien employee can do on her own. Yes
Is there anything an alien employee can do on her own? Yes. A foreign national employee is always free to pursue an I-140 self-petition at his\her own expense with counsel of his\her choice in the EB-1a Extraordinary Ability category or the EB-2 National Interest Waiver (“NIW”) category. In such cases, the foreign national employee will be signing the I-140 him or herself and not asking someone at OSU to sign it. These are the only two self-petitioning categories available. OSU may not pay fees or costs associated with these filings.

27. What positions qualify for green card sponsorship at OSU?
“Permanent” full-time positions: indefinite duration with a continued expectation of long term employment.
Examples: Tenure-Track, Research-Track, and Clinical Track Faculty; full-time Lecturers; regular research staff positions (e.g., Research Scientist, Research Associate, Research Specialist); regular full-time staff positions.
Positions that typically do not qualify: Postdoctoral Researcher or Postdoctoral Fellow; Visiting Faculty or Visiting Scholar; Medical Resident or Fellow; part-time Lecturer; Adjunct Faculty.

28. Most Common Cases Filed At OSU
Labor certification-based advanced degree professional category. (For teaching cases, must prove that alien was “best qualified” after national recruitment and selection process. For non-teaching cases must prove no “minimally qualified” U.S. workers.)
Outstanding Professor or Researcher (“EB-1b”). Must prove beneficiary is internationally recognized as outstanding in academic field. Often filed for faculty or research staff. Success often depends on publication record and level of independent citation to research. Labor certification not required for this category.

29. My advisor wants to promote me (F-1 or J-1 post-doc) to Research Associate and file an outstanding researcher case, so I can file an I-485 and get an employment card, so the unit doesn’t have to file an H-1b for me. Will this work?
Maybe. It may take several months to prepare the outstanding researcher case before filing. (Regardless of whether prepared by Legal Affairs or outside counsel.) USCIS may take 3 months (or more) to issue EAD card.
Remember, the intent to hire has to be long term, and Department Chair (or similar individual) will have to sign I-140.
No guarantee I-140 will be approved.
Do you need waiver of J-1 2-year rule?
Priority dates might not be current for India\China even in 1st preference now.

30. PERMANENT RESIDENCE How long does it take?
Labor certification prevailing wage: 3-4 months. (No internal wage for permanent labor certification.)
Labor certification: Currently about 3 months. (Historically much longer.)
I-140: 15 days to 15 months. (High degree of variability depending on category and premium processing.) 1st preference or NIW I-140s may take several months to prepare before filing.
I-485: months. (Depends on whether filed with I-140, duration of background checks, etc.)
Some people may have to wait more than 10 years between I-140 approval and I-485 filing.
For most cases, plan on months to get green card from time when intake materials are complete.

31. Can I switch jobs during the green card process?
This is a nuanced question. Some basic guidelines follow. Yes, if:
I-140 approved;
I-485 pending more than 180 days;
Moving to position in same or similar occupation as listed in the I-140.
Don’t forget to file I-485 Supplement J.
Can be a complex issue: talk to attorney, particularly if switching before 180 days, concerned about I-140 withdrawal, different type of job.

32. POST-DOC SPECIFIC ISSUES
“Permanent” job offer is required for EB-1b “Outstanding Researcher\Professor” petitions and labor certification based petitions.
Post-doctoral research positions do not qualify as “permanent.” (Permanent: a position of indefinite duration with a continued expectation of long-term employment.)
A post-doc usually only has two options available: (1) a 1st preference “extraordinary ability” self-petition, or (2) a 2nd preference national interest waiver self-petition.

33. POST-DOC SPECIFIC CONSIDERATIONS
EB-1a cases are often difficult for post-docs, since a USCIS examiner may ask whether someone can really be “extraordinary” while holding “only” a post-doctoral research position.
A waiver of the 2-year home residency requirement (if applicable) is necessary before the I-485s may be filed.
A National Interest Waiver petition is often a very good option. For those born in India or China, this type of petition still leaves a long wait time; however, an approved 2nd preference I-140 still offers potential post-6th year H-1b extensions.