1. Immigration Options for Post-Docs and Scientists Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer Philadelphia - New York

2. Immigration Opportunities Agenda  H-1B Quota  J-1 Waivers  The O-1 Visa  Permanent Residence Status  Q&As

3. H-1b Quota  What is it and what does it mean?  Who is not subject to the quota? Universities Nonprofit institutions affiliated with universities Employed “at” university Nonprofit or government research organization Previous H-1B under cap Concurrent employment  Cap Exempt to Cap Subject

4. 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

5. 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…

6. 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

7. J-1 Waiver Options  Waiver options Hardship Persecution No objection waiver Federal government agency waiver  Health & Human Services  National Science Foundation  Department of Energy  Other IGA

8. O-1 – Alien of Extraordinary Ability  Factors Considered in Initial Evaluation 1 st authored articles/impact factors Citations to 1 st authored work Conference presentations Book Chapters/review articles Peer reviewer/manuscript reviewer

9. O-1 (cont’d)  What’s Included in the Petition 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  Immigrant Visa 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 INDIAMEXICOPHILIPPINES 1 st CCCCC 2 nd C01NOV07 CC 3 rd 22DEC0522AUG0422JUL0222DEC05 Other Workers* 15NOV0522APR0315JUN0215NOV05 4 th CCCCC Certain Religious Workers CCCCC 5 th Targeted Employment Areas/Regional Centers and Pilot Programs CCCCC

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  1 st authored articles/impact factors  Citations to 1 st 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  Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps  2 nd Step – I-140  3 rd Step – I-485 or IV Consular Process No filing fee for this step (cont’d)

24. 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)

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

26. Issues Relating to NIV Status During Permanent Residency Process  Travel  Extensions of Status  Dependents  Eligibility for OPT

27. Questions Any Questions?

28. Contact Information Suzanne B. Seltzer, Esq. Telephone: 212-796-8840 Fax: 212-297-1799 Email: sseltzer@klaskolaw.com sseltzer@klaskolaw.com Websites: www.klaskolaw.com www.klaskolaw.com www.eb1immigration.com www.eb5immigration.com