pathways to permanent residency
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Pathways to Permanent Residency. Elizabeth Leibach, Director, Northern Kentucky University, ISSS Ted Farrell Immigration Law, PLLC. Introduction to Permanent Residency. Intermediate step Intention to remain (implications for frequent travel abroad) Rights and Due Process - PowerPoint PPT PresentationTRANSCRIPT
Pathways to Permanent Pathways to Permanent ResidencyResidency
• Elizabeth Leibach, Director, Northern Kentucky University, ISSS
• Ted Farrell Immigration Law, PLLC
Introduction to Permanent Introduction to Permanent ResidencyResidency
• Intermediate step• Intention to remain (implications for frequent travel abroad) • Rights and Due Process• Laws are codified in Immigration and
Nationality Act (201 and 204 are the most important sections)
General IntroductionGeneral Introduction
The INA 201 through 204 sections:
1. Establish the worldwide level of immigrant visas
2. Who is entitled
3. The priorities for distribution
General IntroductionGeneral Introduction
• Benefits• Right to Work without further authorization • Right to Public Benefits (limited now)• Right to Financial Aid•Right to Citizenship after a period of time
• Pathways to LPR Status• Family-Based• Employment-Based
• First Preference• Second Preference• Third Preference
• Humanitarian• Asylum• Refugee• Diversity Visa Lottery
Three Pathways
General Introduction General Introduction Process Overview
• Apply to USCIS for approval.
• If approved, receive a priority date
• Wait until the date becomes current (note: this depends on visa type and country)
• If visa is granted, applicant adjusts status from non-immigrant to immigrant (or via consulate)
• Priority Dates (Visa Bulletin available at www.travel.state.gov)
• Overall limit is 480,000 per year• Additional Stipulation that no more than 20,000
persons per country can enter in a year
Priority Dates
• US Department of Homeland Security• US Citizenship & Immigration Services• US Customs and Border Patrol• US Immigration and Customs Enforcement
• US Department of State• US Department of Labor• US Employer• Employee or “Alien”• International Student Office (ISSS)
Parties Involved in LPR Process
• Form I-797 Request for Evidence • Form I-797Approval Notice for I-140 (change of status)• Form I-797 Approval Notice for I-140 (consular
processing)• Form I-797 Approval Notice for I-485• I-551 Stamp (affixed in passport)• Resident Alien Card (“green card”)• Advanced Parole (Travel Document)• Employment Authorization Document (EAD)
Documents of Status or Evidence of Filings
• ETA 9089 (Permanent Labor Application)• I-140 Petition for Immigrant Worker• I-130 Petition for Immediate Relative Petition• I-485 Application to Adjust Status to Permanent
Resident• I-765 Application for Employment Authorization• I-131 Application for Travel Document
• (Advanced Parole is the most common but can be used for Reentry permit for permanent residents seeking to re-enter after a period of absence)
Forms
Common Types Family-Based
Marriage
1) Alien Fiancé
2) If Approved, granted Conditional Residence (valid just 2 years)
3) Can be tricky to remove conditions
Unlimited for Immediate Relatives of U.S. citizens
i. parents
ii. Fiancé
iii. Spouse
iv. minor children
Issues for Students adjusting Status with parents or relatives (Aging Out)
Common Types Family-Based
Limited for these categories:
i. Unmarried Sons and Daughter of Citizens
ii. Spouses and Children, and Unmarried Sons
& Daughters of Permanent Residents
iii. Married Sons and Daughters of Citizens
iv. Brothers and Sisters of Adult Citizens
Dependents and Other Family Relationship
1) Pure Luck
2) 13.6 million apply, 100,000 people
win, the first 55,000 get the visas
3) Need an Affidavit of Support (must show that the person will not become a public charge)
Diversity Lottery
Common University Types Employment-Based(1)FIRST Preference (EB-1): Aliens with Extraordinary Ability, Outstanding Professors and Researchers, and Certain Multinational Executives and Managers.
(2) SECOND Preference (EB-2): Members of the Professions Holding Advanced Degrees and Aliens of Exceptional Ability in the Sciences, Arts, or Business.
a) Special Handling
b) Advanced Degree holder
c) National Interest Waiver (self-petition)
•
Basics of EB-1
Outstanding Researcher Basics Must show recognition internationally in the academic
field AND three years of experience (post-PhD with some exceptions)
Subjective process but there is legal precedent and legal arguments that can help guide you
Preponderance of Evidence is the standard (not beyond reasonable doubt)
Immigration regulations specify that the foreign national must present evidence of meeting two of the following categories [8 CFR 204.5(i)(3)(i)]
•
SECOND Preference (EB-2)
Special HandlingTeaching Faculty selected within 18 months of filing
the petitionRequires a national PRINT publicationEmployee must have the terminal degree and
experience at the time of selection (not the time of hire) unless the Ad says ABD
No additional ads and the standard is higher. You only need to show that the alien was the most qualified for the position at the time of hire.
SECOND Preference (EB-2)
Advanced Degree Holder Can file for Staff or Faculty (non-tenure as well) Requires a new recruitment process (not a “real”
search but for the purposes of ruling out any minimally qualified candidates)
Re-recruitment efforts must take place within 180 day window but not filed earlier than 30 days after the first Ad is placed
If experience is required, the employee cannot gain experience with the petitioning employer in the job offered unless you can make a convincing case that it’s a “Business Necessity”
Less Common Types Employment-Based
THIRD Preference (EB-3): Professionals and Skilled Workers (requiring two or more years of specific education training, or experience) and Other (Unskilled) Workers. Professionals are defined as a person
holding a position which requires a minimum of a bachelor’s degree
These are complex with longer visa wait times May want to consider outside counsel
Eligibility and Inadmissibility Eligibility and Inadmissibility ConsiderationsConsiderations
The consultation may involve the following:The consultation may involve the following:• Determination of international’s subjectivity to
212(e)• Determination regarding “indefinite nature” of
position • Discussions with legal counsel internal/external• Determination regarding appropriate preference
category• Determination of time remaining on H-1B (will
you be able to maintain work authorization while the case is pending).
Eligible for Adjusting Status
LPR Processes and Procedures Questions to Ask before filing
Who submits on behalf of the university (you, department hiring official, human resource department)
What information do I need? How will I obtain that information?
Department may work with the international to submit the materials but its good to have both parties involved.
I-140 is Employer’s responsibilityI-140 is Employer’s responsibilityI-485 is the Employee’s responsibilityI-485 is the Employee’s responsibility
Critical Concerns on the I-485Critical Concerns on the I-485 a) What if I’m asked tough questionsa) What if I’m asked tough questions that are unclear or ambiguous on thethat are unclear or ambiguous on the I-485?I-485? b) What are the problems on the I-485?b) What are the problems on the I-485?
Who’s Responsible
Internal ConsiderationsInternal Considerations
Internal and Legal Policies on campusInternal and Legal Policies on campus
Using Outside CounselUsing Outside Counsel
Internal Policies on campusInternal Policies on campus
Written policy is bestWritten policy is bestInvolve Human Resource & Legal Involve Human Resource & Legal DepartmentDepartmentDetermine the scope of your work Determine the scope of your work
• filing nonefiling none• filing allfiling all• filing somefiling some• difficult cases onlydifficult cases only
Considerations for Outside CounselConsiderations for Outside Counsel
Weighing the university size, staffWeighing the university size, staff knowledge and trainingknowledge and trainingLegal ResponsibilityLegal ResponsibilityNon-attorney employee purview (who can Non-attorney employee purview (who can sign)sign)University is not the applicant with Family-University is not the applicant with Family-based petitionsbased petitionsWorking with Outside Counsel (How do I Working with Outside Counsel (How do I find good counsel?)find good counsel?)
Questions???