immigration options after f-1 or j-1 status h. ronald klasko, esq. klasko, rulon, stock &...

Immigration Options

after F-1 or J-1 Status

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

Philadelphia New York1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840

[email protected] www.klaskolaw.com

Klasko, Rulon, Stock & Seltzer, LLP

H. Ronald Klasko, Esq.

Ron Klasko has been providing immigration assistance and solutions to leading universities, hospitals, and research institutions for over 25 years. Ron is a past National President of the American Immigration Lawyers Association. He has been a member of the AILA Board of Governors since 1980.

His firm is the only immigration law firm global partner advocate of NAFSA: Association of International Educators. The firm has been selected as one of six top tier immigration firms in the United States for two consecutive years by the prestigious Chambers Global: The World's Leading Lawyers for Business (Chambers and Partners). This publication noted the firm as the “strongest in the country” when it comes to representing clients in the university research and medical sectors and recognized Ron as “a leading national practitioner who really does it all” who is “literally on the cutting edge” when it comes to immigration policy and legislative issues.

Ron has been selected as one of twelve top tier immigration lawyers in the US by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 edition selected Ron as the “most highly regarded” business immigration lawyer in the world.

Ron is a frequent author and lecturer on hospital and university-related immigration law topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School. Ron is a graduate of the University of Pennsylvania School of Law.


Immigration Options for Students and Scholars

Agenda

H-1B Visas H-1B Quota Options for Dealing with H-1B Quota Quota-Exempt Employment Strategies to Enhance Chances of Getting H-1B Travel and Status Issues for H-1B Approvals Other Visa Options


Immigration Options for Students and Scholars

Agenda (cont’d)

Permanent Resident Status Quotas EB-5 Travel Issues Q & A


H-1B Visas

Basic requirementsJob Offer

Part-time or full-timeBachelors or higher degree

Determine U.S. equivalence of foreign degree Combination of education and experience

Specialty occupation Job requires bachelors or higher degree in

specific fieldPrevailing wage


H-1B Visas (cont’d)

Employer requirementsU.S. employerPay feesPost noticeKeep public examination file



Procedure and processing timeFile Labor Condition Application with DOLFile H-1B petition with CISChange of status or consular visa issuanceProcessing time

3 to 5 months 15 days or less with premium processing ($1000)



Length of approval and extensions3 year initial approval and 3 year extension6 year maximum – any combination of

employersExtensions 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



H-1B portabilityPresent or prior H-1BCommence employment upon new employer

filing petition Spouses

H-4 cannot work Travel

Dual intent


H-1B Quota What is it, and what does it mean?

65,000 visas

Separate quota for US-educated advanced degree holders 20,000 visas

Separate options for Canada, Mexico, Australia, Chile and Singapore TN-1, E-3, H-1B

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


Strategies to Enhance Chances of Getting H-1B

Obtaining masters degree Filing multiple years Filing first day Using previously-obtained degree Combination of education and experience Start your own business

Apply as H-1B employee


Travel and Status Issues for H-1B Approvals

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

“Cap gap” relief


Other Visa Options F-1

OPT 12 months or 29 months

Going back to school Advantages of Masters or PhD

Working overseas for U.S. employer Entering U.S. as B-1 Eligibility for L-1 after one year

Look at spouse’s status Spouse of J,E and L can work


Other Visa Options (cont’d)

E-1 Treaty Trader Substantial import or export Treaty country nationality Executive, supervisor, essential skill employee

E-2 Treaty Investor Substantial investment

No exact amount Treaty country nationality Investor or employee (executive, supervisory or essential skill)

L-1 Intracompany Transferee Related company (equity ownership) One year employment overseas Managerial or specialized knowledge

Overseas and U.S.


H-3Corporate traineeTraining not available overseasFormal training program requiredProductive employment incidental to training Training will qualify for position abroad



H-2BNumerical quota and timing issues

Can be skilled position but must be temporary Seasonal, peak-load, intermittent or one-time

occurrence No U.S. workers available



O-1 Visas Employer sponsored Standards

National or international reputation

Documentation Reference letters Length of approval

3 years Unlimited one year extensions

Spouses O-3 cannot be employed



J-1 Visas Trainee, researcher, scholar 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



Waiver options No objection waiver HardshipPersecutionFederal government agency waiver



EB-5$500,000 or $1,000,000 investment Individual investment or government-approved

regional center

Other Options


Permanent Resident Status

Family Investment Asylum Employment Lottery


Quotas

Per country of birth, per preference category, per fiscal year

Filing date is “priority date” EB-1 (extraordinary ability, outstanding

researcher, multinational manager) No quota wait


Quotas (cont’d)

EB-2 (national interest waiver and labor certification) 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


Permanent Resident StatusEmployment

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

interest/exceptional Multiple petitions


Permanent Resident StatusEmployment (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



National Interest Waiver EB-2 Standard

Exceptional ability or advanced degree National priority National impact

Extensive documentation required Reference letters critical May file multiple petitions



Employer-SponsoredOutstanding Researcher

EB-1 “Permanent position” Similar to extraordinary ability

Multinational Manager EB-1 Same as L-1 except must be manager or executive

overseas



Labor Certification Application (PERM) EB-2 or EB-3 Employer must:

Pay attorney fees and advertising costs Define “minimum requirements” Engage in required recruitment (approximately 4-5 months) Interview U.S. worker applicants Prove unavailability of qualified, interested, and available

U.S. worker Pay prevailing wage



Timing Electronic filing 2 to 5 months Possibility of audit First of three steps



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



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)



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


EB-5

$500,000 or $1,000,000 Own business or regional center New business or expand existing business Create 10 jobs Lawful source of funds


Travel Issues

Potential Problems Intent to return – F & J vs. H &O Visa interview delays Security clearances Technology Alert List 222(g)

Possible solutions Don’t travel Canada/Mexico Advance Parole


Questions ?


For Further Information

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

[email protected]

215-825-8600 (Philadelphia)

212-796-8840 (New York)

www.klaskolaw.com

immigration options after f-1 or j-1 status h. ronald klasko, esq. klasko, rulon, stock &...

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