1. Klasko, Rulon, Stock & Seltzer, LLP
Immigration Options for Scholars and Researchers Tuesday, April 26, 2011
H. Ronald Klasko, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia New York
1800 JFK Blvd., Floor Madison Ave., Suite 1518
Philadelphia, PA New York, NY

2. H. Ronald Klasko, Esq.
Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP, the first immigration law firm global partner of NAFSA: Association of International Educators. He has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 25 years.
Ron is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee, its Task Force on H and L Visas and Business Immigration Committee. Mr. Klasko is one of only two recipients of the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law.
Ron has been chosen as one of twelve top tier immigration lawyers in the U.S. by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers selected Ron as the “most highly regarded” business immigration lawyer in the world. He is a frequent author and lecturer on business-related immigration 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.

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

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

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

6. 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

7. 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

8. Travel and Status Issues for H-1B Approvals
Change of status vs. consular visa issuance
Travel after April 1
Maintaining status until October 1

9. 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

10. 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

11. 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
“Impossibility” of fulfillment argument

12. Avoiding Need for J-1 Waiver
(cont’d)
Government financing advocacy
Must be during J status
Indirect government financing
Funds earmarked for exchange program

13. Visa Options Without Needing Waiver
Anything other than H or L visa or change of status
O-1, TN-1, E-3 ok
Canadian doctor H-1B visa-exempt entry ok?
Change of status from F-1 (or other) to H-1B ok
Labor certification and I-140 can be approved
DS230 can be filed
I-485 cannot be filed (except clinical NIW)

14. Fulfilling Two-Year Return Requirement
Return to country of nationality or last residence?
Can fulfill sequentially

15. J-1 Waiver Options No objection statement Exceptional hardship
Persecution
Interested government agency

16. No Objection Statement
Researchers only
Usually not helpful if U.S. or international organization funding
Quickest and easiest waiver
Attitudes of different countries

17. Exceptional Hardship Waiver
Hardship to U.S. citizen or LPR spouse or child
Hardship must be “exceptional”
Very difficult

18. Persecution Waiver
Individualized persecution
Similar to asylum

19. Interested Government Agency Waivers
Research track
Usually through HHS
Peer review process – unlike CIS filings
Do not need 3 years in H-1B?

20. 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

21. HHS Waivers Other Issues
(cont’d)
Other Issues
Involvement of NIH scientists familiar with the research
Reconsideration of denials
Impact of Fulbright funding
Timing

22. Other Medical Research Waivers
Usually limited to agency contracts, grants or research programs
Examples include DOD, NASA, DOE and DOI

23. O-1 Visas Employer sponsored Standards Documentation Reference letters
Processing time/issues
Length of approval
Extensions
Spouses

24. Permanent Residence
Employer-sponsored, family-sponsored or self-sponsored
Quotas/timing issues
Impact on visa status
Impact on family
Impact on travel

25. Permanent Resident Status
Family
Investment
Asylum
Lottery
Employment

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

27. Investment
$500,000 or $1,000,000
Individual investment or regional center

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

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

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

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

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)

33. 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)

34. 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

35. Permanent Resident Status Employment
(cont’d)
Employer-Sponsored
Outstanding Researcher
EB-1
“Permanent position”
Similar to extraordinary ability

36. EB-1 for Researchers 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
Book chapters
Honors and awards
Manuscript reviewer
Media

37. EB-1 for Researchers Evaluating Eligibility Evaluation Outside of CV
(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

38. 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?

39. Permanent Resident Status Employment
(cont’d)
Labor Certification Application (PERM)
Employer Sponsored
Recruitment
Prevailing wage
Legal issues
Timing
First of 3 steps

40. Permanent Resident Status Employment
(cont’d)
Timing
Electronic filing
10 months?
Possibility of audit
First of three steps
Importance of filing before end of 5th year in H-1B status

41. 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

42. 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)

43. 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

44. Questions ?

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