1. for Scholars and Researchers Klasko, Rulon, Stock & Seltzer, LLP
Immigration Options
for Scholars and Researchers
Wednesday, February 12, 2014
William A. Stock, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia New York
1800 John F. Kennedy Blvd., Floor Madison Avenue, Suite 1518
Philadelphia, PA New York, NY

2. William A. Stock, Esq.
Bill Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for nearly 20 years.
Bill is featured in Chambers Global, Best Lawyers in America, Pennsylvania Super Lawyers, Who’s Who of Business Lawyers and other guides to prominent attorneys. He is active in the American Immigration Lawyers Association on a national level, currently serving as second vice president on the Association’s national Executive Committee, and has been Business Committee chair and Distance Learning Committee chair. He is also active in NAFSA’s Region VIII and has been a Regulatory Ombudsman for the region on scholar and faculty issues.
Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and has served as an Adjunct Faculty Member at Villanova University School of Law.

3. Immigration Options for Scholars and Researchers Agenda
H-1B Visas and Quota
J-1 Visas and Waivers
O-1 Visas
Permanent Residence Status
Q&As
For more information, visit

4. H-1B Visas Basic requirements Procedure and processing times
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

5. 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

6. 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

7. H-1B 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
For more information, visit

8. 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
Waiver
For more information, visit

9. 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

10. Avoiding Need for J-1 Waiver
(cont’d)
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
For more information, visit

11. Avoiding Need for J-1 Waiver
(cont’d)
Government financing advocacy
Must be during J status
Indirect government financing
Funds earmarked for exchange program
For more information, visit

12. Visa Options Without Needing Waiver
Anything other than H or L visa or change of status
O-1, TN-1, E-3 ok
Change of status from F-1 (or other) to H-1B ok
Labor certification and I-140 can be approved
DS230 immigrant visa application can be filed
I-485 cannot be filed
For more information, visit

13. Fulfilling Two-Year Return Requirement
Return to country of nationality or last residence?
Can fulfill sequentially
For more information, visit

14. J-1 Waiver Options No objection statement Exceptional hardship
Persecution
Interested government agency
For more information, visit

15. 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

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

17. Persecution Waiver Individualized persecution Similar to asylum
For more information, visit

18. Interested Government Agency Waivers
Research track
Usually through HHS
Peer review process – unlike CIS filings
For more information, visit

19. 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
For more information, visit

20. HHS Waivers Other Issues
(cont’d)
Other Issues
Involvement of NIH scientists familiar with the research
Impact of Fulbright funding
Timing
For more information, visit

21. Other Medical Research Waivers
Usually limited to agency contracts, grants or research programs
Examples include NSF, DOD, NASA, DOE and DOI
For more information, visit

22. 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

23. O-1 Alien of Extraordinary Ability
Factors Considered in Initial Evaluation
1st authored articles/impact factors
Citations to 1st authored work
Conference presentations
Book chapters / review articles
Peer reviewer / manuscript reviewer
For more information, visit

24. O-1 (cont’d) What’s included in the petition Processing time/issues
Reference letters
Independent referees
Addressing O-1 criteria
Corroborating documentation
Processing time/issues
Length of approval
Extensions
Spouses
For more information, visit

25. Permanent Resident Status
Family
Investment
Asylum
Lottery
Employment
For more information, visit

26. Family Spouse of U.S. citizen All other relationships 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
For more information, visit

27. Investment
$500,000 or $1,000,000
Individual investment or regional center
For more information, visit

28. Asylum Individualized fear of persecution
Race, religion, nationality, political opinion, social group, sexual persuasion
For more information, visit

29. Lottery Only specified countries One year window www.travel.state.gov
Effect of application on future visa applications
For more information, visit

30. Permanent Resident Status Employment
Employer-sponsored or self-sponsored
Labor certification or extraordinary/national interest/exceptional
Multiple petitions
For more information, visit

31. 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
For more information, visit

32. 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
(cont’d)
For more information, visit

33. Permanent Residency Quotas, Where Are We Now?
Employment
Based
All Charge-ability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
1st C
2nd
15FEB09
15NOV04
3rd
01SEP12
15SEP03
01MAY07
Other Workers*
4th
Certain Religious
Workers
5th     Targeted Employment
Areas/Regional
Centers and Pilot
Programs
Visa Bulletin for March 2014

34. 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

35. Permanent Residency 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

36. 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
(cont’d)
For more information, visit

37. 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
For more information, visit

38. Permanent Resident Status Employment
(cont’d)
Employer-Sponsored
Outstanding Researcher
EB-1
“Permanent position”
Similar to extraordinary ability
For more information, visit

39. Permanent Resident Status Employment
Evaluating Eligibility
CV Evaluation
1st listed author publications
In process; submitted; accepted; published; cited
Impact factor?
Citations
Footnote
Text
Presentations
1st listed abstracts
Oral vs. poster
(cont’d)
Book chapters
Honors and awards
Manuscript reviewer
Media
For more information, visit

40. Permanent Resident Status Employment
(cont’d)
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

41. Permanent Resident Status Employment
(cont’d)
Choosing Referees
How many?
Good C.V.’s
Prestigious institutions
Geographical diversity
One per institution
Impartiality
For more information, visit

42. 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?
Choice of attorney
For more information, visit

43. 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

44. New EB-1 Guidance Implications of Two Part Analysis
(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

45. Permanent Resident Status Employment
(cont’d)
Labor Certification Application (PERM)
Employer Sponsored
Recruitment
Prevailing wage
Legal issues
Timing
First of 3 steps
For more information, visit

46. Permanent Resident Status Employment
(cont’d)
Timing
Electronic filing
Timing varies
Possibility of audit
First of three steps
Importance of filing before end of 5th year in H-1B status
For more information, visit

47. Permanent Resident Status Employment
(cont’d)
I-140 Petition
1st step for EB-1 and national interest waiver
2nd 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

48. 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)
For more information, visit

49. 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
For more information, visit

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

51. Questions?
For more information, visit

52. For Further Information
William A. Stock, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
Telephone: (Philadelphia)
(New York)
Offices:
Philadelphia New York
1800 John F. Kennedy Boulevard 317 Madison Avenue Floor Suite 1518 Philadelphia, PA New York, NY 10017

53. online www.klaskolaw.com www.eb1immigration.com

54. 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.
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