Immigration Options
for Scholars and Researchers
February 17, 2016
William A. Stock, Esq.
Klasko Immigration Law Partners, LLP
Philadelphia
 New
York  Chicago
www.klaskolaw.com
William A. Stock, Esq.

Bill Stock is a founding partner of Klasko Immigration Law Partners, 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 President-Elect 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.
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
H-1B Visas

Basic requirements

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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Fulfilling Two-Year
Return Requirement


Return to country of nationality or last residence?
Can fulfill sequentially
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
J-1 Waiver Options




No objection statement
Exceptional hardship
Persecution
Interested government agency
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Exceptional Hardship Waiver



Hardship to U.S. citizen or LPR spouse or child
Hardship must be “exceptional”
Very difficult
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Persecution Waiver


Individualized persecution
Similar to asylum
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Interested Government
Agency Waivers

Research track
 Usually
through HHS
 Peer review process – unlike CIS filings
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
HHS Waivers

Key Issues
 Importance

Does not have to be NIH funded
 Essentiality

of research program
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
HHS Waivers
(cont’d)

Other Issues
 Involvement
of NIH scientists familiar with the
research
 Impact of Fulbright funding
 Timing
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
O-1

What’s included in the petition
 Reference


letters
Independent referees
Addressing O-1 criteria
 Corroborating




(cont’d)
documentation
Processing time/issues
Length of approval
Extensions
Spouses
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Permanent Resident Status





Family
Investment
Asylum
Lottery
Employment
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Family

Spouse of U.S. citizen
 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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Investment


$500,000 or $1,000,000
Individual investment or regional center
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Asylum


Individualized fear of persecution
Race, religion, nationality, political opinion,
social group, sexual persuasion
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Lottery




Only specified countries
One year window
www.travel.state.gov
Effect of application on future visa applications
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Permanent Resident Status
Employment



Employer-sponsored or self-sponsored
Labor certification or extraordinary/national
interest/exceptional
Multiple petitions
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Permanent Resident Status
Employment
(cont’d)

Quotas
 Visa
Bulletin (www.travel.state.gov)
 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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Permanent Resident Status
Employment

(cont’d)
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
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Visa Bulletin for February 2016
Permanent Residency Quotas,
Where Are We Now?
All Chargeability Areas
Except Those
Listed
CHINAmainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
01MAR12
01AUG08
C
C
3rd
01OCT15
01OCT12
15JUN04
01OCT15
08JAN08
Other Workers*
01OCT15
22DEC06
15JUN04
01OCT15
08JAN08
4th
C
C
C
C
C
Certain Religious
Workers
C
C
C
C
C
C
15JAN14
C
C
C
Employment
Based
5th
Targeted Employment
Areas/Regional
Centers and Pilot
Programs
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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

For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
(cont’d)
Permanent Resident Status
Employment
 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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
(cont’d)
Permanent Resident Status
Employment
(cont’d)

Employer-Sponsored
 Outstanding
Researcher
EB-1
 “Permanent position”
 Similar to extraordinary ability

For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Permanent Resident Status
Employment

(cont’d)
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
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
 Book
chapters
 Honors and awards
 Manuscript reviewer
 Media
Permanent Resident Status
Employment

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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
(cont’d)
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Permanent Resident Status
Employment

I-140 Petition
(cont’d)
 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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Permanent Resident Status
Employment

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 www.eb1immigration.com
Klasko Immigration Law Partners, LLP
(cont’d)
Materials
Please visit www.klaskolaw.com to download this
PowerPoint presentation and relevant articles.
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
Questions?
For more information, visit www.eb1immigration.com
Klasko Immigration Law Partners, LLP
For Further Information
William A. Stock, Esq.
[email protected]
215.825.8600
Klasko Immigration Law Partners, LLP
Philadelphia
Klasko Immigration Law Partners, LLP

New York

Chicago
online
www.klaskolaw.com
www.eb1immigration.com
www.worksite-compliance.com
www.eb5immigration.com
http://blog.klaskolaw.com
Klasko Immigration Law Partners, LLP
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 immigrationrelated guidance is needed.

Copyright © 2016 Klasko Immigration Law Partners, LLP.
All rights reserved.
Klasko Immigration Law Partners, LLP
Copyright © 2016. All rights reserved.