Immigration Opportunities

for Clinicians and Researchers

Klasko, Rulon, Stock & Seltzer, LLP

Suzanne B. Seltzer

Philadelphia – New York

Suzanne B. Seltzer, Esq.

Suzanne Seltzer is a partner of Klasko, Rulon, Stock & Seltzer LLP.  Ms. Seltzer is the Chair of the American Immigration Lawyer's Association (AILA) Service Center Operations Committee, having recently completed her tenure as the USCIS Benefits & Policy Liaison.  Ms. Seltzer speaks and writes extensively on visa options for scientists and researchers. 

She is listed in Best Lawyers in America, Chambers USA, New York SuperLawyers, and the International Who's Who of Corporate Immigration Lawyers. 

A magna cum laude graduate of the University of Pennsylvania, Ms. Seltzer received her law degree from Georgetown University’s Law Center (cum laude).

Immigration OpportunitiesPart I: Pathways to

Permanent Residency

What is Permanent Residence Permanent Residence Quotas Employment Based Permanent Residence

Self Petitions Employer Sponsored

Adjustment of Status - Maintenance of status

For more information, visit www.eb1immigration.com

What is Permanent Residency?

Authorization to Live & Work Indefinitely in the United States

“Immigrant Visa” The “Green Card” or “Form I-551” Not always ‘forever’ – may be abandoned

or taken away

For more information, visit www.eb1immigration.com

Immigrant vs. Non-Immigrant Visas

Immigrant Visa Green Card/Permanent Residency

Non-Immigrant Visa (NIV) H, F, J, O, etc Limited duration Specific to employer/institution Specific to purpose (work/study/tourism)

For more information, visit www.eb1immigration.com

Nonimmigrant to Immigrant

F-1 – attend school

F-1 OPT – start work

H-1B/L-1 – continue working; max 6 years total in H status

H-1B – change employer, continues to

count against 6 years maximum

For more information, visit www.eb1immigration.com

Nonimmigrant to Immigrant

H-1B – change employer, requires new petition may start working under ‘H-1B portability’

4th Year H-1B status – start thinking about LPR

maintain NIV status until LPR

6 years in H-1B, other options? Eligible to file adjustment of status?

For more information, visit www.eb1immigration.com

J-1 Nonimmigrant to LPR

J-1 two year home requirement

O-1

waiver fulfill two years

clinical all other apply LPR

3 years H-1B

For more information, visit www.eb1immigration.com

How Do I Apply?

Family Investment Asylum Employment DV Lottery

For more information, visit www.eb1immigration.com

Permanent Residence Quotas

Annual Limit on Permanent Residence Per Country Limit – 7% Allocated by Dept of State (DOS) based on:

Priority Date – place in line Preference Category

For more information, visit www.eb1immigration.com

Permanent Residence Quotas

Employment Based Preferences First Preference (EB-1)

Extraordinary Ability Outstanding Researcher Multinational Executive

For more information, visit www.eb1immigration.com

Permanent Residence Quotas

Second Preference (EB-2) Advanced Degree Professionals

Position must require advanced degree Bachelors plus 5 yrs exp is equivalent

Aliens of Exceptional Ability In lieu of advanced degree Much lower standard than EB-1

PERM or National Interest Waiver

For more information, visit www.eb1immigration.com

Permanent Residency Quotas, Where Are We Now?Visa Bulletin for November 2012

EmploymentBased

All Charge-ability Areas Except Those

Listed

CHINA- mainland

bornINDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01SEP07 01SEP04 C C

3rd 22NOV06 15APR06 22OCT02 22NOV06 08AUG06

Other Workers* 22NOV06 01JUL03 22OCT02 22NOV06 08AUG06

4th C C C C C

Certain Religious Workers

C C C C C

5th     Targeted Employment

Areas/Regional

Centers and Pilot

Programs

C C C C C

Permanent Residency Quotas,Where Are We Now?

“Oversubscribed” versus “Available” Oversubscribed if:

Cut-off date indicated in chart Priority date must be earlier than posted date

Available if: Visa Bulletin indicates “C” = current

For more information, visit www.eb1immigration.com

Permanent Residence Quotas

Predictions from DOS for FY2013 EB-1 usage is extremely high, so numbers are

not dropping down into EB-2 EB-2 India will remain in 2006 for some time EB-2 worldwide may ‘retrogress’ towards the

end of FY2013 EB-3 will continue to move forward slowly

For more information, visit www.eb1immigration.com

Employment Based (EB) Permanent Residence

Employer-sponsored or self-sponsored Multiple petitions Multi-Step Process

PERM – filed with Department of Labor I-140 – Petition for Immigrant Worker (eligibility) I-485 – Register for Permanent Residence

(requires visa number)

For more information, visit www.eb1immigration.com

Employment Based (EB) Permanent Residence: EB-1

Extraordinary Ability/EB-1 (I-140, filing fee $580)

“One of a Few at the Top” ‘Self-Petition’ – no need for employer sponsor Factors Considered in Initial Evaluation

1st authored articles/impact factors Citations to 1st authored work Conference Presentations Peer Review/Manuscript Review Work

For more information, visit www.eb1immigration.com

EB-1 Self Petition (cont’d)

Factors considered (cont’d)

References from Independent Experts Demonstrates your reputation Translates your work to a lay adjudicator

Important to document claimsMust meet at least 3 out of 10

regulatory criteria Preparation/Processing Times

For more information, visit www.eb1immigration.com

EB-1 Employer Sponsored Outstanding Researcher/EB-1 (I-140, $580)

Similar to Extraordinary Ability Must meet 2 out of 6 regulatory criteria ‘Internationally Recognized’ as Outstanding At least 3 Years post-grad experience

Time spent towards advanced degree can count only if graduate work is recognized as outstanding

For more information, visit www.eb1immigration.com

EB-1 Employer Sponsored

Requires employer sponsor Requires permanent job offer Qualified Employers:

Academic Institutions Industry

At least 3 FT researchers Recognition in field

For more information, visit www.eb1immigration.com

New EB-1 Guidance (Kazarian)

Issued December 2010 Establishes Two-Part Analysis of EB-1

Does Petition Contain Evidence of Requisite Number of Criteria?

‘Final Merits Analysis’ – does evidence demonstrate that beneficiary is one of a very few at the top of the field?

For more information, visit www.eb1immigration.com

New EB-1 Guidance (cont’d)

Implications of Two Part Analysis ‘Final merits analysis’ is an opportunity to

second guess the criteria – more subjective adjudication

USCIS provides no clear guidelines for applying final merits analysis

Confusion among adjudicators as to the correct standards to apply

For more information, visit www.eb1immigration.com

Employment Based: EB-2 National Interest Waiver/EB-2 (I-140, $580)

Self-Petition, no employer sponsor req’d Three Prong Test

Field is of Substantial Intrinsic Merit National Impact of Your Contributions You Are “Substantially Better” Than Your Peers

Past Record of Achievement! Quota backlogs

For more information, visit www.eb1immigration.com

EB-2 Self-Petition (cont’d) Physician Shortage Area NIW – EB-2

Self-Petition 5 Yr Commitment to Federally

Designated Area State Department of Public Health must

concur Will not get green card until 5 year

service is complete

For more information, visit www.eb1immigration.com

EB-2 Employer Sponsored

Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps

2nd Step – I-140 3rd Step – I-485 or IV Consular Process

No filing fee for this step

(cont’d)

For more information, visit www.eb1immigration.com

Employment Based: Employer Sponsored

Labor Certification Application (PERM) Employer MUST Pay Costs Recruitment Prevailing wage First of 3 steps

2nd Step – I-140 3rd Step – I-485 or IV Consular Process

No filing fee for this step

(cont’d)

For more information, visit www.eb1immigration.com

Employment Based: Employer Sponsored

Special Handling (PERM) Positions that involve classroom teaching Recruitment – National Professional Journal

one print ad, or 30 day internet posting

‘Best Qualified’ Standard Must be filed within 18 months of selection

(cont’d)

For more information, visit www.eb1immigration.com

Special Handling (cont’d)

Prevailing wage First of 3 steps

2nd Step – I-140 3rd Step – I-485 or IV Consular Process

No filing fee for this step

For more information, visit www.eb1immigration.com

Permanent Resident StatusAdjustment of Status (I-485) Timing

Preference categories/quotas Priority dates Processing times

Concurrent filing (I-140/I-485) I-485 filing fee $1070, includes:

Employment authorization (I-765) Advance parole (I-131)

For more information, visit www.eb1immigration.com

Permanent Resident StatusAdjustment of Status (I-485)

Adjustment portability H-1B Extensions

One Year Three years

Spouses

(cont’d)

For more information, visit www.eb1immigration.com

Issues Relating to NIV Status

During Permanent Residency Process

Important to Maintain NIV status Travel Extensions of Status Dependents

For more information, visit www.eb1immigration.com

Immigration Opportunities

Part II: J-1 Waivers & Options

Understanding J-1 two year rule Who is Subject What Does it Mean to be Subject Options if Subject

J-1 Waivers Research based Clinical based

The O-1 Visa as a bridge to a waiverFor more information, visit www.eb1immigration.com

J-1 Visa Who is subject to 2-year return?

Exchange Visitor Skills List Right Skill? Right List?

Government Funding U.S. or Home Country Direct or Indirect

Graduate Medical Training

For more information, visit www.eb1immigration.com

What Does it Mean to be Subject?

Ineligible for Certain Visas H-1B L-1 K

Ineligible to apply for final step of Green Card I-485 IV Consular Processing But may commence initial steps…

For more information, visit www.eb1immigration.com

If Subject, are there Options?

Return home Where is home? Aggregating trips

Apply for a Waiver Obtain an O-1 Visa

Requires an employer willing to sponsor Must Demonstrate “Outstanding” in field

For more information, visit www.eb1immigration.com

J-1 Waiver Options

Waiver options Hardship Persecution No objection waiver (researchers

only)

For more information, visit www.eb1immigration.com

J-1 Waiver Options

Federal government agency waiver National Science Foundation Department of Energy Health & Human Services U.S. Dep’t of Veteran’s Affairs Appalachian Regional Commission Delta Regional Authority waiver

State 30 waiver (clinical only)

For more information, visit www.eb1immigration.com

O-1 Alien of Extraordinary Ability

Factors Considered in Initial Evaluation 1st authored articles/impact factors Citations to 1st authored work Conference presentations Book Chapters/review articles Peer reviewer/manuscript reviewer

For more information, visit www.eb1immigration.com

O-1 (cont’d)

What’s Included in the Petition Reference letters

Independent referees Addressing O-1 criteria

Corroborating Documentation

Processing time/issues Length of approval Extensions

For more information, visit www.eb1immigration.com

Materials

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

For more information, visit www.eb1immigration.com

Questions?

For more information, visit www.eb1immigration.com

Contact Information

Suzanne B. Seltzer, Esq.

Telephone: 212-796-8840

Fax: 212-297-1799

Email: sseltzer@klaskolaw.com

Websites: www.eb1immigration.com

www.klaskolaw.com

Copyright Notice

The materials contained in this PowerPoint does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Copyright © 2012 Klasko, Rulon, Stock & Seltzer, LLP.

All rights reserved.

Copyright © 2012 All rights reserved.