h. ronald klasko, esq. klasko, rulon, stock & seltzer, llp philadelphia new york 1800 john f....

H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 John F. Kennedy Blvd., Floor 17 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840

[email protected] www.klaskolaw.com

Immigration OptionsImmigration Options for Scholars and Researchers

Wednesday, October 27, 2010

Klasko, Rulon, Stock & Seltzer, LLP

H. Ronald Klasko, Esq.

Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP, the first immigration law firm global partner of NAFSA: Association of International Educators. He has been providing immigration assistance and solutions to leading universities, research institutions, hospitals and individuals for over 25 years. He and his firm have assisted thousands of students, postdocs and other researchers obtain permanent resident status, J-1 waivers and other immigration benefits.

Ron is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee and its Task Force on H and L Visas. Mr. Klasko is one of only three practicing lawyers to have received the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law.

Ron has been chosen as one of twelve top tier immigration lawyers in the U.S. by Chambers Global. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers selected Ron as the “most highly regarded” immigration lawyer in the world.

Ron is a graduate of the University of Pennsylvania School of Law.


H-1B Visas and Quota J-1 Visas and Waivers O-1 Visas Permanent Residence Status Q&As

Immigration Options for Scholars and Researchers

Agenda


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


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


Options for Dealing with H-1B Quota

Quota-exempt employment Strategies to enhance chances of getting H-1B Alternative visa options Applying for permanent residence directly


Quota-Exempt Employment

Who is not subject to the quota?UniversitiesNonprofit institutions affiliated with universitiesEmployed “at” universityNonprofit or government research organizationConcurrent employmentPrevious H-1B


Travel and Status Issuesfor H-1B Approvals

Change of status vs. consular visa issuance Travel after April 1 Maintaining status until October 1

“Cap gap” work authorization


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

H-1B Extensions Beyond 6 Years


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


Avoiding Need for J-1 Waiver

Medical ResearchersWho 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



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

“Impossibility” of fulfillment argument

(cont’d)



Government financing advocacy Must be during J status Indirect government financing Funds earmarked for exchange program

(cont’d)


Visa Options Without Needing Waiver

Anything other than H or L visa or change of statusO-1, TN-1, E-3 okCanadian H-1B visa-exempt entry ok?Change of status from F-1 (or other) to H-1B okLabor certification and I-140 can be approved

DS230 immigrant visa application can be filed I-485 cannot be filed (except clinical NIW)


Fulfilling Two-Year Return Requirement

Return to country of nationality or last residence? Can fulfill sequentially


J-1 Waiver Options

No objection statement Exceptional hardship Persecution Interested government agency


No Objection Statement

Researchers only Usually not helpful if U.S. or international

organization funding Quickest and easiest waiver Attitudes of different countries


Exceptional Hardship Waiver

Hardship to U.S. citizen or LPR spouse or child

Hardship must be “exceptional” Very difficult


Persecution Waiver

Individualized persecution Similar to asylum


Interested Government Agency Waivers

Research trackUsually through HHSPeer review process – unlike CIS filingsDo not need 3 years in H-1B?


HHS Waivers Key Issues

Importance of research program Does not have to be NIH funded

Essentiality and uniqueness of foreign national Recruitment (unavailability of U.S. researchers)

Future of program and future of foreign nationalBench research (at least 30 hours per week) vs.

clinical researchExcellence of foreign national’s research


HHS Waivers

Other Issues Involvement of NIH scientists familiar with the

research Impact of Fulbright fundingTiming

(cont’d)


Other Medical Research Waivers

Usually limited to agency contracts, grants or research programs

Examples include NSF, DOD, NASA, DOE and DOI


O-1 Visas

Employer sponsored Standards Documentation Reference letters Processing time/issues Length of approval Extensions Spouses


Permanent Resident Status

Family Investment Asylum Lottery Employment


Spouse of U.S. citizenNo quota waitEAD and AP within 3 monthsTravel may result in loss of status unless H-1B

All other relationshipsLong quota waitNo interim benefits

Family


Investment

$500,000 or $1,000,000 Individual investment or regional center


Asylum

Individualized fear of persecution Race, religion, nationality, political opinion,

social group, sexual persuasion


Lottery

Only specified countries One year window www.travel.state.gov Effect of application on future visa applications


Permanent Resident StatusEmployment

Employer-sponsored or self-sponsored Labor certification or extraordinary/national

interest/exceptional Multiple petitions



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

(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

(cont’d)



Self-SponsoredExtraordinary 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

(cont’d)



National Interest Waiver EB-2 Standard

Exceptional ability or advanced degree National priority National impact

Extensive documentation required Reference letters critical

(cont’d)



Employer-SponsoredOutstanding Researcher

EB-1 “Permanent position” Similar to extraordinary ability

(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

(cont’d)

Book chapters Honors and awards Manuscript reviewer Media



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

(cont’d)



Choosing Referees How many? Good C.V.’s Prestigious institutions Geographical diversity

One per institution

Impartiality

(cont’d)



Other Factors Not a peer review process Importance of job title? Importance of employer sponsorship? File now, or wait? Choice of attorney

(cont’d)



Labor Certification Application (PERM) Employer Sponsored Recruitment Prevailing wage Legal issues Timing First of 3 steps

(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

(cont’d)



I-140 Petition 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

(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)

(cont’d)



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

(cont’d)


Questions ?


For Further Information

H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP

E-mail: [email protected]

Telephone: 215-825-8600 (Philadelphia)

212-796-8840 (New York)

Website: www.klaskolaw.com

Blog: http://blog.klaskolaw.com

h. ronald klasko, esq. klasko, rulon, stock & seltzer, llp philadelphia new york 1800 john f....

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