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Immigration Opportunities for Clinicians and Researchers Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer Philadelphia – New York
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Immigration Opportunities Part I Understanding J-1 two year rule Who is Subject What Does it Mean to be Subject Options if Subject J-1 Waivers Research based Clinical based The O-1 Visa as a bridge to a waiver
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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
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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…
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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 Does not ‘waive’ the two years, just puts it off for awhile
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J-1 Waiver Options Waiver options Hardship Persecution No objection waiver (researchers only)
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J-1 Waiver Options: Research Federal government agency waiver based on essentiality to research: National Science Foundation Department of Energy Health & Human Services U.S. Dep’t of Veteran’s Affairs
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J-1 Waiver Options: Clinical Federal government agency waiver based on clinical service: Appalachian Regional Commission Delta Regional Authority waiver Health & Human Services Department of Veteran’s Affairs Conrad State 30 waiver
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J-1 Waiver Options: Clinical Clinical Waivers Requires at least 3 Year Commitment 3 Year Obligation Must be fulfilled in H-1B status If 3 year commitment is extended to 5 years, may be a pathway to the green card
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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
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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
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Questions?
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Part II Pathways to Permanent Residency
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Immigration Opportunities Part II: Pathways to Permanent Residency What is Permanent Residency Permanent Residency Quotas Employment Based Permanent Residency Self Petitions Employer Sponsored Adjustment of Status and Maintenance of status
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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
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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)
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How Do I Apply? Family Investment Asylum Employment DV Lottery
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Permanent Residency Quotas Annual Limit on Permanent Residency Per Country Limit – 7% Allocated by: Priority Date – place in line Preference Category
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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
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Permanent Residency Quotas, Where Are We Now? Visa Bulletin for October 2011 All Chargeability Areas Except Those Listed CHINA- mainland born INDIAMEXICO PHILIPPINES/ DOMINICAN REPUBLIC Employment Based 1stCCCCC 2ndC15JUL07 CC 3rd8DEC0508DEC0408JUN0215SEP05 5thCCCCC
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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
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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?
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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
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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
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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?
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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
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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
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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)
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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)
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Permanent Resident Status Adjustment of Status (I-485) Adjustment portability H-1B Extensions One Year Three years Spouses (cont’d)
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Issues Relating to NIV Status During Permanent Residency Process Important to Maintain NIV status Travel Extensions of Status Dependents Eligibility for OPT
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Questions?
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Contact Information Suzanne B. Seltzer, Esq. Telephone: 212-796-8840 Fax: 212-297-1799 Email: sseltzer@klaskolaw.com sseltzer@klaskolaw.com Websites: www.eb1immigration.com www.eb1immigration.com www.klaskolaw.com
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