Immigration Options
for Post-Docs and Scientists
Klasko, Rulon, Stock & Seltzer, LLP
Suzanne B. Seltzer
Philadelphia - New York
Immigration Opportunities
Agenda
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H-1B Quota
J-1 Waivers
The O-1 Visa
Permanent Residence Status
Q&As
H-1b Quota
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What is it and what does it mean?
Who is not subject to the quota?
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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
J-1 Visa
 Who

is subject to 2-year return?
Exchange Visitor Skills List
 Right
Skill?
 Right List?
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Government Funding
 U.S.
or Home Country
 Direct or Indirect
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Graduate Medical Training
What Does it Mean to be Subject
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Ineligible for Certain Visas
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H-1B
L-1
K
Ineligible to apply for final step of Green
Card
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I-485
IV Consular Processing
But may commence initial steps…
If Subject, Are there Options?
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Return home
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Where is home?
Aggregating trips
Apply for a Waiver
 Obtain an O-1 Visa
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Requires an employer willing to sponsor
Must Demonstrate “Outstanding” in field
J-1 Waiver Options
 Waiver
options
Hardship
 Persecution
 No objection waiver
 Federal government agency waiver
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 Health
& Human Services
 National Science Foundation
 Department of Energy
 Other IGA
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
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O-1 (cont’d)
 What’s
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Included in the Petition
Reference letters
 Independent
referees
 Addressing O-1 criteria
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Corroborating Documentation
 Processing
time/issues
 Length of approval
 Extensions
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
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Immigrant Visa
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Green Card/Permanent Residency
Non-Immigrant Visa (NIV)
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H, F, J, O, etc
Limited duration
Specific to employer/institution
Specific to purpose (work/study/tourism)
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:
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Priority Date – place in line
Preference Category
Permanent Residency Quotas
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Employment Based Preferences
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First Preference (EB-1)
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Second Preference (EB-2)
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Extraordinary Ability, Outstanding Researcher,
Multinational Executive
Nat’l Interest Waivers, Advanced Degreed Professionals,
Bachelors plus 5 years exp.
Third Preference (EB-3)
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Skilled Worker (2+ years experience), Bachelor’s
Degree
Permanent Residency Quotas,
Where Are We Now?
Visa Bulletin for November 2011
All Chargeability Areas
Except Those
Listed
CHINAmainland
born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
01NOV07
01NOV07
C
C
3rd
22DEC05
22AUG04
22JUL02
22DEC05
22DEC05
Other Workers*
15NOV05
22APR03
15JUN02
15NOV05
15NOV05
4th
C
C
C
C
C
Certain Religious
Workers
C
C
C
C
C
C
C
C
C
C
Employment
Based
5th
Targeted Employment
Areas/Regional
Centers and Pilot
Programs
Permanent Residency Quotas,
Where are We Now?
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“Oversubscribed” versus “Available”
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Available if:
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Visa Bulletin indicates “C” = current
Priority date earlier than posted date
Predictions from State Department for FY2012
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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
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
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“One of a Few at the Top”
‘Self-Petition’ – no need for employer sponsor
Factors Considered in Initial Evaluation
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(I-140, filing fee $580)
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
Employment Based: EB-1 (cont’d)
Outstanding Researcher/EB-1
(I-140, filing fee
$580)
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Similar to Extraordinary Ability
Requires employer sponsor
At least 3 Years experience
Permanent job offer
Qualified Employers:
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Academic Institutions
Industry
 At least 3 FT researchers
 Recognition in field
New EB-1 Guidance (Kazarian)
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Issued December 2010
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Establishes Two-Part Analysis of EB-1
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Does Petition Contain Evidence of Requisite
Number of Criteria?
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‘Final Merits Analysis’ – does evidence
demonstrate that beneficiary is one of a very
few at the top of the field?
New EB-1 Guidance (cont’d)
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Implications of Two Part Analysis
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‘Final merits analysis’ is an opportunity to
second guess the criteria – more subjective
adjudication
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USCIS provides no clear guidelines for applying
final merits analysis
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Confusion among adjudicators as to the correct
standards to apply
Employment Based: EB-2
National Interest Waiver/EB-2
(I-140, filing fee
$580)
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Self-Petition, no employer sponsor req’d
Three Prong Test
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Field is of Substantial Intrinsic Merit
National Impact of Your Contributions
You Are “Substantially Better” Than Your Peers
Preparation/Processing Times
India/China backlog
Employment Based:
Employer Sponsored
(cont’d)
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Labor Certification Application (PERM)
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Employer MUST Pay Costs
Recruitment
Prevailing wage
First of 3 steps
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2nd Step – I-140
3rd Step – I-485 or IV Consular Process
No filing fee for this step
Permanent Resident Status
Adjustment of Status (I-485)
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Timing
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Preference categories/quotas
Priority dates
Processing times
Concurrent filing (I-140/I-485)
 I-485 filing fee $1070, includes:
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Employment authorization (I-765)
Advance parole (I-131)
Permanent Resident Status
Adjustment of Status (I-485)
(cont’d)
Adjustment portability
 H-1B Extensions
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One Year
Three years
Spouses
Issues Relating to NIV Status
During Permanent Residency Process
Travel
 Extensions of Status
 Dependents
 Eligibility for OPT
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Questions
Any Questions?
Contact Information
Suzanne B. Seltzer, Esq.
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Telephone:
212-796-8840
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Fax:
212-297-1799
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Email:
[email protected]
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Websites:
www.klaskolaw.com
www.eb1immigration.com
www.eb5immigration.com