Immigration Options for Scholars and Researchers Friday, October 1, 2010

1. Immigration Optionsfor Scholars and ResearchersFriday, October 1, 2010 H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 John F. Kennedy Blvd., Floor 17 317 Madison Ave., Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840rklasko@klaskolaw.comwww.klaskolaw.com

2. H. Ronald Klasko, Esq. • Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP, the first immigration law firm global partner of NAFSA: Association of International Educators. He has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations and individuals for over 25 years. • Ron is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee, its Task Force on H and L Visas and Business Immigration Committee. Mr. Klasko is one of only three recipients of the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law. • Ron has been chosen as one of twelve top tier immigration lawyers in the U.S. by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers selected Ron as the “most highly regarded” business immigration lawyer in the world. He is a frequent author and lecturer on business-related immigration 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.

3. Immigration Options for Scholars and ResearchersAgenda • H-1B Visas and Quota • J-1 Visas and Waivers • O-1 Visas • Permanent Residence Status • Q&As

4. H-1B Visas • Basic requirements • Job Offer • Prevailing Wage • Bachelors or higher degree • Specialty occupation • Procedure and processing times • Specialty occupation issues • Part-time or full-time • Length of approval • Extensions • Portability • Spouses • Travel

5. H-1B Quota • What is it, and what does it mean? • Separate quota for US-educated advanced degree holders • Separate options for Canada, Mexico, Australia, Chile and Singapore • Prospects for change • Timing • April 1 filing date • October 1 start date

6. 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

7. Quota-Exempt Employment • Who is not subject to the quota? • Universities • Nonprofit institutions affiliated with universities • Employed “at” university • Nonprofit or government research organization • Concurrent employment • Previous H-1B

8. Travel and Status Issuesfor H-1B Approvals • Change of status vs. consular visa issuance • Travel after April 1 • Maintaining status until October 1

9. J-1 Visas • 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

10. Avoiding Need for J-1 Waiver • Medical Researchers • Who decides if 2 year return requirement? • CIS – not DOS • Visa, DS 2019, advisory opinion not determinative • Only subject if • Skills list • Government financing • Graduate medical education or training

11. Avoiding Need for J-1 Waiver (cont’d) • Skills list advocacy • Country of citizenship or country of last residence • Country of last residence vs. country of last permanent residence • Proving different skills list category • Effect of new country of citizenship • “Impossibility” of fulfillment argument

12. Avoiding Need for J-1 Waiver (cont’d) • Government financing advocacy • Must be during J status • Indirect government financing • Funds earmarked for exchange program

13. Visa Options Without Needing Waiver • Anything other than H or L visa or change of status • O-1, TN-1, E-3 ok • Canadian doctor H-1B visa-exempt entry ok? • Change of status from F-1 (or other) to H-1B ok • Labor certification and I-140 can be approved • DS230 can be filed • I-485 cannot be filed (except clinical NIW)

14. Fulfilling Two-Year Return Requirement • Return to country of nationality or last residence? • Can fulfill sequentially

15. J-1 Waiver Options • No objection statement • Exceptional hardship • Persecution • Interested government agency

16. No Objection Statement • Researchers only • Usually not helpful if U.S. or international organization funding • Quickest and easiest waiver • Attitudes of different countries

17. Exceptional Hardship Waiver • Hardship to U.S. citizen or LPR spouse or child • Hardship must be “exceptional” • Very difficult

18. Persecution Waiver • Individualized persecution • Similar to asylum

19. Interested Government Agency Waivers • Research track • Usually through HHS • Peer review process – unlike CIS filings • Do not need 3 years in H-1B?

20. HHS Waivers • Key Issues • Importance of research program • Does not have to be NIH funded • Essentiality and uniqueness of foreign national • Recruitment (unavailability of U.S. researchers) • Future of program and future of foreign national • Bench research (at least 30 hours per week) vs. clinical research • Excellence of foreign national’s research

21. HHS Waivers (cont’d) • Other Issues • Involvement of NIH scientists familiar with the research • Reconsideration of denials • Impact of Fulbright funding • Timing

22. Other Medical Research Waivers • Usually limited to agency contracts, grants or research programs • Examples include DOD, NASA, DOE and DOI

23. O-1 Visas • Employer sponsored • Standards • Documentation • Reference letters • Processing time/issues • Length of approval • Extensions • Spouses

24. Permanent Resident Status • Family • Investment • Asylum • Employment

25. Family • Spouse of U.S. citizen • No quota wait • EAD and AP within 3 months • Travel may result in loss of status unless H-1B • All other relationships • Long quota wait • No interim benefits

26. Investment • $500,000 or $1,000,000 • Individual investment or regional center

27. Asylum • Individualized fear of persecution • Race, religion, nationality, political opinion, social group, sexual persuasion

28. Lottery • Only specified countries • One year window • www.travel.state.gov • Effect of application on future visa applications

29. Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions Permanent Resident StatusEmployment

30. Quotas Visa Bulletin (www.travel.state.gov) Per country of birth, per preference category, per fiscal year Filing date is “priority date” EB-1 (extraordinary ability, outstanding researcher) No quota wait Permanent Resident StatusEmployment (cont’d)

31. Quotas EB-2 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 Permanent Resident StatusEmployment (cont’d)

32. Self-Sponsored Extraordinary 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 Permanent Resident StatusEmployment (cont’d)

33. National Interest Waiver EB-2 Standard Exceptional ability or advanced degree National priority National impact Extensive documentation required Reference letters critical Permanent Resident StatusEmployment (cont’d)

34. Employer-Sponsored Outstanding Researcher EB-1 “Permanent position” Similar to extraordinary ability Permanent Resident StatusEmployment (cont’d)

35. Permanent Resident StatusEmployment • 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 (cont’d)

36. Permanent Resident StatusEmployment • Choosing Referees • How many? • Good C.V.’s • Prestigious institutions • Geographical diversity • One per institution • Impartiality (cont’d)

37. Permanent Resident StatusEmployment • Other Factors • Not a peer review process • Importance of job title? • Importance of employer sponsorship? • File now, or wait? (cont’d)

38. Labor Certification Application (PERM) Employer Sponsored Recruitment Prevailing wage Legal issues Timing First of 3 steps Permanent Resident StatusEmployment (cont’d)

39. Timing Electronic filing 10 months? Possibility of audit First of three steps Importance of filing before end of 5th year in H-1B status Permanent Resident StatusEmployment (cont’d)

40. 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 Permanent Resident StatusEmployment (cont’d)

41. 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) Permanent Resident StatusEmployment (cont’d)

42. 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 Permanent Resident StatusEmployment (cont’d)

43. Questions ?

44. For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP E-mail: rklasko@klaskolaw.com Telephone: 215-825-8600 (Philadelphia) 212-796-8840 (New York) Websites:www.klaskolaw.com www.worsite-compliance.com www.eb5immigration.com Blog:http://blog.klaskolaw.com