immigration options for international faculty and staff
DESCRIPTION
This webinar will cover:* Green Card Options Under the EB-1 (Alien of Extraordinary Ability and Outstanding Professor/Researcher Categories), EB-2 (PERM Special Handling, Schedule A: Alien of Exceptional Ability and National Interest Waivers), and EB-2 and EB-3 (PERM)* Other Green Card Options, Diversity Visa Lottery, Family-Based Options, and Immigration Through Investment* Going Beyond the 6-year H-1B cap – O-1 and Other Visa Options* Options for J-1’s Subject to the 212(e) Two-Year Home Residency RequirementThe seminar will finish with a Q&A for the audience.TRANSCRIPT
Immigration Workshop Immigration Workshop for Internationalfor International
Faculty and Staff Faculty and Staff
During the seminar: Please use your “Chat” function to ask questions
Tien-Li Loke Walsh, Esq.Tien-Li Loke Walsh, Esq.Wolfsdorf Immigration Law Group
1416 2nd StreetSanta Monica, CA 90401
© 2011 Wolfsdorf Immigration Law Group (all rights reserved) The contents of this document are proprietary and should not be duplicated or shared without express permission
from Wolfsdorf Immigration.
Immigrant Visa (“Green Card”) Immigrant Visa (“Green Card”)
OptionsOptions • Green Card Lottery (www.travel.state.gov)
• 50,000 green cards
• Registration period– October/part of November
• No application fee
• Must be eligible to participate
Green Card Lottery• Based on country of birth (not citizenship)• Countries that are NOT eligible include:
• Bangladesh, Brazil, Canada, P.R. China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and Vietnam
• Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible!
• “Cross-charge” to spouse’s country of birth?
Immigrant Visa (“Green Card”) Immigrant Visa (“Green Card”) OptionsOptions
• Family Based Immigrant Visas– Immediate Relative: spouse, parent, minor
children of U.S. citizens • Immediate benefits – work permit and travel
document within 2-3 months
• 4-6 months processing
• Conditional 2 year green card (marriage cases)
• Adult child must be 21 years old
Family Based Immigrant Visas continued...Family Based Immigrant Visas continued...
• Unmarried Adult Children of U.S. citizens (F1) (6 year backlog)
• Spouse/Children of Legal Permanent Resident (LPR) (F2A) (4-5 year backlog)
• Unmarried adult children of LPR (F2B) (9 year backlog)
• Married adult children of U.S. citizens (F3) (9 year backlog)
• Brothers and sisters of U.S. citizens (F4) (11 year backlog)
Employment Based OptionsEmployment Based Options
• EB-1– Alien of Extraordinary Ability– Outstanding Professor/Researcher
• EB-2– PERM Special Handling Labor Certification– Schedule A, Group II: Alien of Exceptional Ability– National Interest Waiver (NIW)– PERM Labor Certification
• EB-3– PERM Labor Certification
Special Handling PERM Labor Special Handling PERM Labor Certification (EB-2)Certification (EB-2)
• University/College Teachers• Memorializes competitive recruitment process• One advertisement in national professional journal
– Must list title, job duties (include teaching), minimum requirements for job
• Must file within 18 months of “selection”• Standard – “most qualified” candidate (not
“minimally qualified” candidate)
Special Handling PERM LCSpecial Handling PERM LC
• What Kind of Job Qualifies for Special Handling?– Permanent, full-time– Actual “classroom” teaching
• Team teaching one course?– Seems to be ok
• Course for credit? Not strictly required but easier to document if audited
• What about Librarians, Admissions Counselors, Advisors, etc.?
Special Handling Filing ProcessSpecial Handling Filing Process
1. Submit PERM to DOL
2. I-140 Immigrant visa petition
3. I-485 Application to Adjust Status to Permanent Residence (AOS)
– If retrogressed – can’t file AOS until priority date (PD) is current
– China and India
Employment- Based
All Chargeability Areas Except Those Listed
CHINA- mainland born
INDIA MEXICO PHILIPPINES
1st C C C C C2nd C 15MAR08 15MAR08 C C
3rd 15JAN06 08SEP04 01AUG02 15JAN06 15JAN06
Other Workers 01JAN06 22APR03 22JUL02 01JAN06 01JAN06
4th C C C C C
•Priority Date (PD) = date of filing PERM application or filing of I-140 Immigrant Visa Petition•If retrogressed – can’t file I-485 AOS until PD is current
•Visa Bulletin (www.travel.state.gov)
Special Handling PERM LCSpecial Handling PERM LC
• Common Issues/Problems– Missed 18 month window– No advertisement in national journal
• Print versus electronic ads - Update
– EB-2 retrogression for Chinese and Indian nationals
EB-12 or EB-1BEB-12 or EB-1B
• Outstanding Professor/Researcher– Employer-sponsored
• University or institute of higher learning• Private industry
– 3 full-time research positions– company must have documented achievements in
academic field
– Permanent, tenured or tenure-track• What is permanent?
– Recognized internationally as outstanding
EB-1 Outstanding EB-1 Outstanding Professor/ResearcherProfessor/Researcher
• 2 out of 6 criteria – commonly:• Major awards or prizes• Membership in association requiring outstanding
achievement• Published materials in professional publications written
by others about the alien• Participation as a judge of the work of others• Original scientific or scholarly contributions• Authorship of scholarly articles/books in the area
• 3 years experience in teaching and/or research• Research experience while working on advanced degree
must be outstanding; or• If teaching, must have full responsibility for class
EB-1 ProcessEB-1 Process
• Step 1: I-140 Immigrant visa petition
• Step 2: I-485 Application to Adjust Status to Permanent Residence (AOS)
» Within 60-90 days
- Employment Authorization Document (EAD) and Advance Parole travel document
• File concurrently or separately– Can premium process I-140 ($1,225)
EB-2 Schedule A, Group II: Alien EB-2 Schedule A, Group II: Alien of Exceptional Abilityof Exceptional Ability
• Exceptional = degree of expertise significantly above that ordinarily encountered in the sciences, arts or business
• widespread acclaim and international recognition by recognized experts in the field; and
• work in that field during the past year and the intended work in the United States will require exceptional ability
Schedule A: Group II CriteriaSchedule A: Group II Criteria• Lesser national or international prizes of awards• Membership in associations requiring outstanding achievements• Published materials or mainstream media written by others about the
alien• Participation, individually or on a panel, as the judge of the work of
others (peer review activity)• Original contributions of major significance• Authorship of books or articles• Conference presentations• Critical role for distinguished organizations or productions/events• High compensation/salary• Commercial success• Display of work at exhibitions, film festivals• Any comparable evidence
Schedule A, Group II: Alien of Schedule A, Group II: Alien of Exceptional AbilityExceptional Ability
• Requires employer sponsorship
• Process is hybrid of PERM and Outstanding Professor/Researcher and Extraordinary Ability (EB-1)– Obtain prevailing wage determination– Notice must be posted at worksite– File I-140/I-485 separately or concurrently
PERM Labor CertificationPERM Labor Certification
• EB-2 versus EB-3• If job requires
– higher degree or BA + 5 years of experience = EB-2
– The following = EB-3• Professionals with BA degree or foreign equivalent
• Skilled Workers with 2 years experience
• Other Workers
• Why does it matter?
ProcessProcess• Step 1: PERM Labor Certification process
• USCIS and DOL• Employer must conduct “good faith” recruitment efforts and
show there is no qualified U.S. worker to do the job
• Step 2: I-140 Immigrant visa petition• Step 3: I-485 Application to Adjust Status
to Permanent Residence (AOS)• If retrogressed – can’t file AOS until priority date (PD) is
current
• China and India
Employment- Based
All Chargeability Areas Except Those Listed
CHINA- mainland born
INDIA MEXICO PHILIPPINES
1st C C C C C2nd C 15MAR08 15MAR08 C C
3rd 15JAN06 08SEP04 01AUG02 15JAN06 15JAN06
Other Workers 01JAN06 22APR03 22JUL02 01JAN06 01JAN06
4th C C C C C
•Priority Date (PD) = date of filing PERM application or filing of I-140 Immigrant Visa Petition•If retrogressed – can’t file I-485 AOS until PD is current
•Visa Bulletin (www.travel.state.gov)
PERM IssuesPERM Issues
• Deciding between EB-2 and EB-3– NOT based on alien’s educational background – based
on the actual minimum requirements for job
• Tricks that don’t work:– Tailoring minimum job requirements to your
experience or education– Foreign language requirements
• Cannot use:– unauthorized employment– experience gained with sponsoring employer
Self-Petitioning OptionsSelf-Petitioning Options(EB-1A or EB-11)(EB-1A or EB-11)
• Alien of Extraordinary Ability– One-time achievement (major, international
award) or at least 3 out of 10 criteria– Self-petition or employer-sponsored– If already have O-1 under sciences, athletics,
business, education – may qualify under EB-1
Criteria: Extraordinary AbilityCriteria: Extraordinary Ability• Lesser national or international prizes of awards• Membership in associations requiring outstanding achievements• Published materials or mainstream media written by others about
the alien• Participation, individually or on a panel, as the judge of the work
of others (peer review activity)• Original contributions of major significance• Authorship of books or articles• Conference presentations• Critical role for distinguished organizations or productions/events• High compensation/salary• Commercial success• Display of work at exhibitions, film festivals• Any comparable evidence
EB-1 ProcessEB-1 Process• Step 1: I-140 Immigrant visa petition• Step 2: I-485 Application to Adjust
Status to Permanent Residence (AOS)
» Within 60-90 days - Employment Authorization Document (EAD) and
Advance Parole travel document
• File concurrently or separately– Can premium process I-140
EB-2 National Interest Waiver EB-2 National Interest Waiver (NIW)(NIW)
• Can self-petition (no employer required)
• No premium processing
• Criteria– Work has intrinsic merit– Work is national in scope– In the national interest to waive the labor
certification process• Must show that past record justifies the belief that you will
continue to serve in the national interest of the United States
National Interest WaiverNational Interest Waiver
Useful evidence includes:
• Publication of scholarly books and articles
• Participation, individually or on a panel, as the judge of the work of others (peer review activity)
• Original contributions of major significance
• National grants or funding
• Conference presentations
• Playing a critical role in scientific or research studies
• Citation record
RetrogressionRetrogression
• Options for Chinese/Indian faculty and staff– Consider filing EB-1 (Extraordinary Ability or
Outstanding Researcher)• no backlogs
– File two applications? EB-1 and EB-2
Summary of Employment-Based Summary of Employment-Based OptionsOptions
• EB-1– Alien of Extraordinary Ability (can self-petition)– Outstanding Professor/Researcher
• EB-2– Special Handling PERM– Schedule A, Group II: Alien of Exceptional Ability– NIW (can self-petition)– PERM Labor Certification
• EB-3– PERM Labor Certification
Tips to Build An EB-1 or NIW Case
• Publish or perish – international peer-reviewed journals
• Speak at national or international conferences
• Engage in peer-review activity for journals, conference committees, scientific boards
• Mainstream media coverage – do it!
Common Green Card IssuesCommon Green Card Issues
• When to Start Green Card Process• What is latest you should start?
– 4.5 years into H-1B
• Maintenance of status• Always maintain underlying status
Common Green Card IssuesCommon Green Card Issues
• What Happens to the Green Card if you Change Employers?
• Keep green card if:• I-140 approved; and
• I-485 pending for more than 180 days (approx. 6 months); and
• job is same or similar position
What Happens When You Reach What Happens When You Reach 6-year Cap?6-year Cap?
• Recapturing time spent outside the U.S.• 2 ways to extend H-1B beyond 6 years
• Green card application pending for more than 1 year
– Issued in one-year increments• I-140 approved and cannot file I-485
application because of backlogs or “retrogression”
– Issued in three-year increments
Other Nonimmigrant Visa Other Nonimmigrant Visa OptionsOptions
• TN NAFTA visas for Canadians and Mexicans– Issued for 3 years
• E-3 visas for Australian professionals– Issued for 2 years; no limit
• O-1 Alien of Extraordinary Ability– issued for 3 years; renewable indefinitely in 1
or 3 year increments
O-1 Alien of Extraordinary Ability• Sciences, education, athletics, business, arts, motion
pictures and television• Major award • Lesser national or international prizes of awards• Membership in associations requiring outstanding achievements• Published materials or mainstream media written by others about the
alien• Participation, individually or on a panel, as the judge of the work of
others• Original contributions of major significance• Authorship of books or articles• Conference presentations• Critical role for distinguished organizations or productions/events• High compensation/salary• Commercial success• Display of work at exhibitions, film festivals
Spouses and Minor ChildrenSpouses and Minor Children
• Nonimmigrant visas: – Derivative classification
• Look out for age-outs when child turns 21 years old
– No employment authorization – spouses may apply for their own work visa if they qualify
• Immigrant visas– Eligible to file I-485 AOS with principal
applicant
Options for J-1s subject to two-year Options for J-1s subject to two-year home residency requirementhome residency requirement
• Prohibited from changing to H-1B or L-1 or filing I-485 AOS (green card) until 2 year obligation is satisfied or alien obtains waiver
• May obtain the following visas even if J-1 subject:– O-1, TN, E-3, TN, F-1– Must still comply with two-year home residency
obligation
H-1B PortabilityH-1B Portability
• Can transfer H-1B to new employer at any time• Portability allows commencement of new job
upon “filing” of new petition – no need to wait for approval– Issue: gaps in between jobs
• Caution: Cap-exempt H-1B to cap-subject employer (university to private industry)– Subject to H-1B cap (never been counted)
I have my Green Card, what now?I have my Green Card, what now?
• Maintaining the green card• Physical presence requirements
• Becoming a U.S. citizen– Eligibility requirements
Hot Topics: Trends for the Future?
• Start-up Visa Act for investors and entrepreneurs
• Buy a House = Get a Green Card
• Dealing with retrogression – ending per-country limits for employment based categories– Good news for EB-2 Chinese and Indians– Bad news for everyone else
Q & APlease use your “Chat” function to ask questions
For follow-up questions:
Tien-Li Loke Walsh, [email protected]
orDaniel Manuel, Academic Services Coordinator
Wolfsdorf Immigration Law Group1-800-VISA-LAW
1416 2nd StreetSanta Monica, CA 90401