immigration options immigration options for medical researchers h. ronald klasko, esq. klasko,...

Immigration OptionsImmigration Options

for Medical Researchers

H. Ronald Klasko, Esq.Klasko, 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, which is the first immigration law firm global partner of NAFSA: Association of International Educators, is authorized counsel for the University of Texas system. The firm has been selected as one of six top tier immigration firms in the United States for three 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 and 2008 editions selected Ron as the “most highly regarded” 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.


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? 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


Quota-Exempt Employment

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


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


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

J-1 Visas


Obtaining a J-1 Waiver

GeneralChoosing between research track and clinical

track

Research track Usually through HHS Peer review process – unlike CIS filings Do 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 DOD, NASA, DOE and DOI


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

O-1 Visas


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


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



Employer-SponsoredOutstanding Researcher

EB-1 “Permanent position” Similar to extraordinary ability



Evaluating Eligibility 1st listed author publications Impact factor? Citations Presentations

1st listed abstracts Book chapters Honors and awards Manuscripts reviewer Importance/narrowness of field of expertise Referees



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

One per institution

Impartiality



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



Labor Certification Application (PERM) EB-2 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


Special HandlingLabor Certification (PERM)

Employer-sponsored Must be “some classroom teaching” Nationwide competitive recruitment

At least one print ad

“Selected” within last 18 months EB-2


Special HandlingLabor Certification (PERM)

Can apply to attendings and other clinicians if “some classroom teaching” Can be very small percentage Can be teaching of residents in a classroom

Choice if selection more than 18 months ago “Reselection”

One national print ad

Regular recruitment Most qualified standard still applies

(cont’d)



Timing Electronic filing 10 months? Possibility of audit First of three steps Importance of filing before end of 5th year in H-1B

status



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



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



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


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 immigration options for medical researchers h. ronald klasko, esq. klasko,...

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