immigration options for students and scholars tuesday, november 8, 2011 h. ronald klasko, esq....

Immigration OptionsImmigration Options forfor Students and Scholars Students and Scholars

Tuesday, November 8, 2011Tuesday, November 8, 2011

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

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 (AILA) 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’s firm has been regularly chosen as one of five top tier immigration firms in the U.S., and Ron has been selected as one of twelve top tier immigration lawyers in the U.S. by Chambers Global. He is the only lawyer selected as “Philadelphia Immigration Lawyer of the Year” by 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.


Issues with Prospective Employers H-1B Visas H-1B Quota Options for Dealing with H-1B Quota Quota-Exempt Employment Strategies to Enhance Chances of Getting H-1B OPT vs. H-1B Cap Gap Employment

Immigration Options for Students and Scholars

Agenda

For more information, visit www.klaskolaw.com


Other Visa Options Permanent Resident Status – Family, Investment,

Asylum, Lottery Permanent Resident Status – Employment Quotas Q & A Session

(cont’d)

Immigration Options for Students and Scholars

Agenda



Issues with Prospective Employers

Policies regarding H-1B Policies regarding green card sponsorship



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



H-1B Visas

Employer requirementsU.S. employerPay feesPost noticeKeep public examination file

(cont’d)



H-1B Visas

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

3 to 6 months 15 days or less with premium processing

(cont’d)



H-1B Visas Length of approval and extensions

3 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

(cont’d)



H-1B Visas

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

filing petition Spouses

H-4 cannot work Travel

Dual intent

(cont’d)



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-1B1

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 Cap gap employment 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?



OPT vs. H-1B

Maximize use of OPT time Tax benefit to OPT Advantage to getting H-1B quota number How to get best of both



Cap Gap Employment

Work authorization between end of OPT and October 1

Cannot travel out of country



Other Visa Options

F-1 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 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.

(cont’d)



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

Other Visa Options(cont’d)



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




Permanent Resident Status

Family Investment Asylum Employment Lottery



Spouse of U.S. citizenNo quota waitEAD and AP within 3 months

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 Apply in October www.travel.state.gov



Permanent Resident StatusEmployment

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

interest/exceptional Multiple petitions




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 First? Only? Best? Media publicity

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 May file multiple petitions

(cont’d)




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

(cont’d)




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

(cont’d)




Timing Electronic filing Varies Possibility of audit First of three steps

(cont’d)



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

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

(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)



Materials

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



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

immigration options for students and scholars tuesday, november 8, 2011 h. ronald klasko, esq....

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