elise a. fialkowski, esq. klasko, rulon, stock & seltzer, llp philadelphia new york 1800 john f....

Elise A. Fialkowski, Esq. Klasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 John F. Kennedy Blvd., Floor 17 317 Madison Avenue, Suite 1518 Philadelphia, PA 19103 New York, NY 10017215.825.8600 [email protected] www.klaskolaw.com

Tuesday, October 22, 2013

Immigration OptionsImmigration Optionsfor Scholars and Researchers

Biomedical Postdoctoral Programs

Klasko, Rulon, Stock & Seltzer, LLP

Elise Fialkowski is a partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, multinational corporations, and individuals for nearly 20 years.

Elise has particular expertise in worksite enforcement and she leads our worksite compliance practice. Elise regularly counsels clients regarding I-9 compliance, E-Verify, Social Security no-match letters and H-1B Labor Condition Application (LCA) compliance. She works with employers to develop proactive compliance programs and assists employers with internal audits and training. Elise has also successfully represented companies facing I-9 and H-1B LCA audits and investigations.

Elise has long been active in AILA having served as Chair of the Philadelphia Chapter and on national committees. She currently serves on AILA’s TSC Liaison Committee and Philadelphia USCIS Liaison Committee.

Elise has been named in Pennsylvania SuperLawyers, The International Who’s Who of Corporate Immigration Lawyers and the International Who’s Who of Business Lawyers. A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill, Elise received her law degree from the Villanova University School of Law (J.D., magna cum laude, 1991).

A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill, (B.A.1987), Elise received her law degree from the Villanova University School of Law (J.D., magna cum laude, 1991).


Intro to Permanent Residency Non-Immigrant Options, Immigrant Intent, and

Timing Permanent Residency Quotas Employment Based Permanent Residency

Self Petitions Employer Sponsored

Adjustment of Status and Maintenance of Status

For more information, visit www.eb1immigration.com


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



Immigrant vs. Nonimmigrant Visas

Immigrant VisaGreen Card/Permanent Residency

Nonimmigrant Visa (NIV)H, F, J, O, etc.Limited durationSpecific to employer/institutionSpecific to purpose (work/study/tourism)May need to establish “non-immigrant” intent



Nonimmigrant to Immigrant

F-1 – attend school

F-1 OPT – start work

H-1B – continue working; Cap subject? Cap exempt?

H-1B – change employer? 6 years maximum in H status



Nonimmigrant to Immigrant

H-1B – change employer, requires new petition May start working under ‘H-1B portability’

4th Year H-1B status – start thinking about LPR

Maintain NIV status until LPR

6 years in H-1B, other options? Eligible to file adjustment of status?



Nonimmigrant Option:H-1B and the Quota

What is it and what does it mean? Who is not subject to the quota?

Universities Nonprofit institutions affiliated with universities Nonprofit or government research organization Previous H-1B under cap Concurrent employment

Cap Exempt to Cap SubjectFor more information, visit www.eb1immigration.com


Nonimmigrant OptionJ-1 Visa

Non-Immigrant Intent Subject to 2-year rule?

What does it mean to be subject?Options if subject:

Return home Apply for a Waiver Obtain an O-1 Visa



J-1 Nonimmigrant to LPRJ-1 two year home requirement

waiver fulfill two years

H-1B and/or Apply for LPR


O-1


Nonimmigrant Option:O-1 Visa

Extraordinary Ability Factors Considered in Initial Evaluation

1st authored articles / presentationsCitationsBook chapters / review articlesPeer reviewer / manuscript reviewer



O-1 Option:Alien of Extraordinary Ability

Document Intensive Petition Important option if:

Cap Subject H-1B 6 Years in H-1BJ Subject to 2 years



Moving from Non-Immigrant to Permanent Resident

Non-immigrant status does not convert to green card

Important to maintain non-immigrant status throughout green card application process

May be impediments to travel during this process



Application Pathwaysfor Permanent Residency

Family Investment Asylum Employment DV Lottery



Permanent Residency Quotas

Annual Limit on Immigrant Visas (Permanent Residency)

Per Country Limit – 7% Allocated by:

Priority Date – place in line Preference Category



Permanent Residency Quotas

Employment Based PreferencesFirst 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 DegreeFor more information, visit www.eb1immigration.com


Permanent Residency Quotas, Where Are We Now?

Vis

a B

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013 Employment

Based

All Charge-ability Areas Except Those

Listed

CHINA- mainland born

INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 08OCT08 15JUN08 C C

3rd 01OCT10 01OCT10 22SEP03 01OCT10 15DEC06

Other Workers* 01OCT10 01OCT10 22SEP03 01OCT10 15DEC06

4th C C C C C

Certain Religious Workers C C C C C

5th Targeted Employment

Areas/Regional

Centers and Pilot

Programs

C C C C C


Employment Based (EB) Permanent Residency

Employer-sponsored or self-sponsored Labor certification or outstanding researcher;

extraordinary or national interest waiver Multiple petitions Multi-Step Process



Employment Based (EB) Permanent Residency: EB-1

Extraordinary Ability/EB-1 (I-140, filing fee $580)

‘Self-Petition’ – no need for employer sponsorFactors Considered in Initial Evaluation

1st authored articles/impact factors Citations to 1st authored work Peer Review/Manuscript Review Work References from independent experts Documentation meeting regulatory Criteria

Preparation/Processing TimesFor more information, visit www.eb1immigration.com


Employment Based: EB-1

Outstanding Researcher/EB-1 (I-140, filing fee $580) Similar to Extraordinary Ability Employer sponsored petition At least 3 Years experience Permanent job offer Qualified Employers:

Academic Institutions Industry

At least 3 FT researchers Recognition in field

(cont’d)



EB-1 Two Part Analysis

Introduced in December 2010 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?

USCIS provides no clear guidelines for applying final merits analysis



Employment Based: EB-2

National Interest Waiver/EB-2 (I-140, filing fee $580)

Self-Petition, no employer sponsor requiredThree Prong Test

Field is of Substantial Intrinsic Merit National Impact of Your Contributions You Are “Substantially Better” Than Your Peers



Employment Based: Employer Sponsored

Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment

Special Handling – involves teaching Professional – minimum requirements

Prevailing wage First of 3 steps

2nd Step – I-140 3rd Step – I-485 or IV Consular Process

(cont’d)



Permanent Resident StatusAdjustment 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)



Permanent Resident StatusAdjustment of Status (I-485)

Adjustment portability H-1B Extensions

One yearThree years

Spouses

(cont’d)



Materials

Please visit www.klaskolaw.com to download this PowerPoint presentation and relevant articles.



Questions?



For Further InformationElise A. Fialkowski, Esq.


E-mail: [email protected]

Telephone: 215-825-8600 (Philadelphia)

212-796-8840 (New York)

Offices:Philadelphia New York1800 John F. Kennedy Blvd. 317 Madison AvenueFloor 17 Suite 1518Philadelphia, PA 19103 New York, NY 10017


www.klaskolaw.com

www.eb1immigration.com

www.worksite-compliance.com

www.eb5immigration.com

http://blog.klaskolaw.com

online


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 immigration-related guidance is needed.

Copyright © 2013 Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.

Copyright © 2013. All rights reserved.

elise a. fialkowski, esq. klasko, rulon, stock & seltzer, llp philadelphia new york 1800 john f....

Documents

stock seltzer

llp immigrant

immigrant h

llp elise fialkowski

llp nonimmigrant

h status

immigrant f

llp intro