immigration options immigration options for students and scholars tuesday, february 22, 2011 william...

Immigration OptionsImmigration Options for Students and Scholars

Tuesday, February 22, 2011

William A. Stock, Esq.Klasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 John F. Kennedy 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

William A. Stock, Esq.

Bill Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 15 years.

Bill is featured in Chambers Global, Best Lawyers in America, and other guides to prominent attorneys. He is a leader in the American Immigration Lawyers Association on a national level, and in 2000 he received AILA’s Joseph Minsky Award, given to the lawyer under age 35 who has made the most outstanding contributions to the field of immigration law.

Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and currently is an Adjunct Faculty Member at Villanova University School of Law.


H-1B Visas H-1B Quota Options for Dealing with H-1B Quota Quota-Exempt Employment Strategies to Enhance Chances of Getting H-1B Other Visa Options Permanent Resident Status – Family, Investment,

Asylum, Lottery

Immigration Options for Students and Scholars

Agenda


Permanent Resident Status – Employment Quotas Q & A Session

(cont’d)

Immigration Options for Students and Scholars

Agenda


Basic requirementsJob Offer

Part-time or full-time

Bachelors 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

field

Prevailing 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 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?


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 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)


Questions?


For Further Information

William A. Stock, 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 immigration options for students and scholars tuesday, february 22, 2011 william...

Documents

stock seltzer

bill stock

b visas klasko

b petition

scholarsagenda klasko

date klasko

b visash

dolfile h