1. Immigration Opportunities for Clinicians and Researchers
Klasko, Rulon, Stock & Seltzer, LLP
Suzanne B. Seltzer
Philadelphia – New York

2. Immigration Opportunities Agenda
Understanding J-1 two year rule
J-1 Waivers
The O-1 Visa
Permanent Residence Status
Q&As

3. J-1 Visa Who is subject to 2-year return? Exchange Visitor Skills List
Right Skill?
Right List?
Government Funding
U.S. or Home Country
Direct or Indirect
Graduate Medical Training

4. What Does it Mean to be Subject?
Ineligible for Certain Visas
H-1B
L-1 K
Ineligible to apply for final step of Green Card
I-485
IV Consular Processing
But may commence initial steps…

5. If Subject, are there Options?
Return home
Where is home?
Aggregating trips
Apply for a Waiver
Obtain an O-1 Visa
Requires an employer willing to sponsor
Must Demonstrate “Outstanding” in field

6. J-1 Waiver Options Waiver options Hardship Persecution
No objection waiver (researchers only)

7. J-1 Waiver Options Federal government agency waiver
National Science Foundation
Department of Energy
Health & Human Services
U.S. Dep’t of Veteran’s Affairs
Appalachian Regional Commission
Delta Regional Authority waiver
State 30 waiver (clinical only)

8. 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

9. 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

10. 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

11. Immigrant vs. Non-Immigrant Visas
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)

12. How Do I Apply?
Family
Investment
Asylum
Employment
DV Lottery

13. Permanent Residency Quotas
Annual Limit on Permanent Residency
Per Country Limit – 7%
Allocated by:
Priority Date – place in line
Preference Category

14. Permanent Residency Quotas
Employment Based Preferences
First Preference (EB-1)
Extraordinary Ability, Outstanding Researcher, Multinational Executive
Second Preference (EB-2)
Nat’l Interest Waivers, Advanced Degreed Professionals, Bachelors plus 5 years exp.
Third Preference (EB-3)
Skilled Worker (2+ years experience), Bachelor’s Degree

15. Permanent Residency Quotas, Where Are We Now?
Visa Bulletin for November 2011
Employment
Based
All Charge-ability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
1st C
2nd
01NOV07
3rd
22DEC05
22AUG04
22JUL02
Other Workers*
15NOV05
22APR03
15JUN02
4th
Certain Religious
Workers
5th     Targeted Employment
Areas/Regional
Centers and Pilot
Programs

16. 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

17. Employment Based (EB) Permanent Residency
Employer-sponsored or self-sponsored
Labor certification or extraordinary/national interest/exceptional
Multiple petitions
Multi-Step Process
Non-Immigrant Status?

18. Employment Based (EB) Permanent Residency: EB-1
Extraordinary Ability/EB-1 (I-140, filing fee $580)
“One of a Few at the Top”
‘Self-Petition’ – no need for employer sponsor
Factors Considered in Initial Evaluation
1st authored articles/impact factors
Citations to 1st authored work
Conference Presentations
Peer Review/Manuscript Review Work
References from independent Experts
Documenting Regulatory Criteria
Preparation/Processing Times

19. Employment Based: EB-1 cont’d
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

20. 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?

21. New EB-1 Guidance (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

22. Employment Based: EB-2 National Interest Waiver/EB-2
(I-140, filing fee $580)
Self-Petition, no employer sponsor req’d
Three Prong Test
Field is of Substantial Intrinsic Merit
National Impact of Your Contributions
You Are “Substantially Better” Than Your Peers
Preparation/Processing Times
India/China backlog

23. Employment Based: Employer Sponsored
(cont’d)
Labor Certification Application (PERM)
Employer MUST Pay Costs
Recruitment
Prevailing wage
First of 3 steps
2nd Step – I-140
3rd Step – I-485 or IV Consular Process
No filing fee for this step

24. Employment Based: Employer Sponsored
(cont’d)
Special Handling (PERM)
Positions that involve classroom teaching
Recruitment – National Professional Journal
one print ad, or
30 day internet posting
‘Best Qualified’ Standard
Must be filed within 18 months of selection

25. Special Handling (cont’d)
Prevailing wage
First of 3 steps
2nd Step – I-140
3rd Step – I-485 or IV Consular Process
No filing fee for this step

26. Permanent Resident Status Adjustment of Status (I-485)
Timing
Preference categories/quotas
Priority dates
Processing times
Concurrent filing (I-140/I-485)
I-485 filing fee $1070, includes:
Employment authorization (I-765)
Advance parole (I-131)

27. Permanent Resident Status Adjustment of Status (I-485)
(cont’d)
Adjustment portability
H-1B Extensions
One Year
Three years
Spouses

28. Issues Relating to NIV Status During Permanent Residency Process
Important to Maintain NIV status
Travel
Extensions of Status
Dependents
Eligibility for OPT

29. Questions?

30. Contact Information
Suzanne B. Seltzer, Esq.
Telephone:
Fax:
Websites: