immigration options immigration options for post docs february 12, 2009 h. ronald klasko, esq....
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Immigration OptionsImmigration Options
for Post Docs
February 12, 2009
H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLPKlasko, 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 is the first immigration law firm global partner of NAFSA: Association of International Educators. 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.
Klasko, Rulon, Stock & Seltzer, LLP
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
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Quota-Exempt Employment
Who is not subject to the quota?UniversitiesNonprofit institutions affiliated with universitiesEmployed “at” universityNonprofit or government research organizationConcurrent employmentPrevious H-1B
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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
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Who is subject to 2-year return? What does it mean to be subject? Options if subject:
Return homeWhere is home?Aggregating trips?
O-1 Waiver
J-1 Visas (cont’d)
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Waiver options No objection waiver HardshipPersecutionFederal government agency waiver
J-1 Visas (cont’d)
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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
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Permanent Resident Status
Family Investment Asylum Employment Lottery
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Spouse of U.S. citizenNo quota waitEAD and AP within 3 months
All other relationshipsLong quota waitNo interim benefits
Family
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Investment
$500,000 or $1,000,000 Individual investment or regional center
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Asylum
Individualized fear of persecution Race, religion, nationality, political opinion,
social group, sexual persuasion
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Lottery
Only specified countries One year window www.travel.state.gov
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Permanent Resident StatusEmployment
Employer-sponsored or self-sponsored Labor certification or extraordinary/national
interest/exceptional Multiple petitions
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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
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Permanent Resident StatusEmployment (cont’d)
National Interest Waiver EB-2 Standard
Exceptional ability or advanced degree National priority National impact
Extensive documentation required Reference letters critical
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Permanent Resident StatusEmployment (cont’d)
Employer-SponsoredOutstanding Researcher
EB-1 “Permanent position” Similar to extraordinary ability
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Permanent Resident StatusEmployment (cont’d)
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
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Permanent Resident StatusEmployment (cont’d)
Choosing Referees How many? Good C.V.’s Prestigious institutions Geographical diversity
One per institution
Impartiality
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Permanent Resident StatusEmployment (cont’d)
Other Factors Not a peer review process Importance of job title? Importance of employer sponsorship? File now, or wait?
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Permanent Resident StatusEmployment (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
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Permanent Resident StatusEmployment (cont’d)
Timing Electronic filing 8 months? Possibility of audit First of three steps Importance of filing before end of 5th year in H-1B
status
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Permanent Resident StatusEmployment (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
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Permanent Resident StatusEmployment (cont’d)
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
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Permanent Resident StatusEmployment (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
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Permanent Resident StatusEmployment (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)
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Permanent Resident StatusEmployment (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
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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
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Questions ?
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For Further Information
H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP
215-825-8600 (Philadelphia)
212-796-8840 (New York)
www.klaskolaw.com