Immigration Forum. by Maureen O Sullivan Kaplan, O Sullivan & Friedman November 14, 2008 Harvard Medical School Campus

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1 Immigration Forum by Maureen O Sullivan Kaplan, O Sullivan & Friedman November 14, 2008 Harvard Medical School Campus

2 Immigration All people who come to the U.S. are divided into: Non-immigrants Immigrants

3 Non-immigrants Visas A-V Eg. F Students J Exchange Visitors H-1B Professionals in specialty occupation O-1 Persons of extraordinary ability All categories subject to limitations Can change from one category to another only in in-status If subject to J-1 two-year foreign residence requirement, cannot change status, but may get O-1 visa.

4 H-1B Limited to 65,000 per year (plus 20,000 for U.S. Master) Some employers are exempt from 65,000 cap Eg. Institutions of higher education Non-profits affiliated with institutions of higher education (eg. Teaching hospitals) Subject to cap with first non-exempt H-1B only Apply 4/1/09 for H-1B to begin 10/1/09 if employer not cap exempt 6 year limit unless in green card process (specific requirements)

5 Immigrants Immigrant = lawful permanent resident = person with green card Basic Routes: Family-based immigration Employment-based immigration DV lottery Asylum and Refugees Special programs

6 Family-based Immigration Categories: Immediate relatives of U.S. citizens (parents, spouse, children) No quota for immediate relatives Other family members subject to quotas

7 Family-based Immigration Must fit within one of preferences below: 1st: Unmarried sons and daughters of U.S. citizens 2nd: 2A: spouses and minor children of LPRs 2B: adult unmarried children of LPR 3rd: married sons and daughters of USCs 4th: brothers and sisters of USCs

8 Family-based Immigration Process: 1) Anchor relative files petition (I-130) with CIS Priority date is the date I-130 filed 2) Await visa availability under quota 3) When visa is current apply for: Adjustment of Status (if in U.S. and eligible); or Appointment at U.S. Consulate (if abroad)

9 Visa Bulletin Visa Bulletin for November 2008 Family-based Immigration All Chargeability Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINE 1st 01MAY02 01MAY02 01MAY02 15SEP92 01MAY93 2A 08FEB04 08FEB04 08FEB04 15JUL01 08FEB04 2B 15JAN00 15JAN00 15JAN00 22APR92 15JUN97 3rd 01JUL00 01JUL00 01JUL00 15SEP92 08MAY91 4th 15NOV97 08JUN97 22JUL97 22JAN95 22MAR86

10 Employment-based Immigration Preferences: 1st: Priority workers: extraordinary ability or outstanding professors or researchers 2nd: Master s degree professionals with labor certification or NIW (EB-2) 3rd: Bachelor s degree professionals and skilled workers (EB-3)

11 Employment-based Immigration Preferences (cont.): Other workers with jobs requiring less than 2 years experience 4th: Religious workers 5th: Employment creation

12 Labor Certification Process to prove no U.S. workers ready, willing, qualified and available for the job Required for EB2 and EB3 (unless NIW or exceptional ability) Must advertise in 6 places for professional job Employer must pay for labor certification

13 Labor Certification Specific time requirements Minimum 60 days for advertising File PERM on-line Await decision or audit Audit (18 month delay) to review recruitment process

14 Employment-based Immigration Shorter routes to green card without labor certification: Extraordinary ability Outstanding professor or researcher National Interest Waiver

15 EB1 Extraordinary ability in sciences, arts, education, e Evidence must show sustained national or international acclaim Major international prize or three of the following: Prizes or awards Membership in association that requires outstanding achievement Articles about the applicant Participation as judge of the work of others

16 EB1 Original scientific scholarly contributions to the field (eg. patents) Authorship of scholarly articles Display of work at exhibitions Leading role in distinguished organizations High salary Commercial success No offer of employment needed (no PERM)

17 Outstanding Professor or Researcher Evidence must show recognized internationally as outstanding Two of the following: Prizes or awards Membership in associations which require outstanding achievement Articles about the applicant Participation as judge of work of others Original scientific or scholarly contributions (eg. patents) Authorship of scholarly articles

18 Outstanding Professor or Researcher Three years experience Offer of employment required (no PERM) Permanent research position (tenure track/indefinite) Employer, if private, must employ at least 3 full-time researchers

19 National Interest Waiver For advanced degree or exceptional ability in sciences, art, or business (EB2) but standard significantly higher Need to show: Substantial intrinsic merit Benefit national in scope National interest would be adversely effected if labor certification required (unique skills outweigh need to protect U.S. labor)

20 Employment-based Immigration Process: 1) Employer files application for Labor Certification (PERM) Priority date is date PERM filed, or I-140 if no PERM 2) Employer files visa petition (I-140) within 180 days of labor certification 3) Await visa availability under quota 4) When visa current apply for: adjustment of status (if in U.S. and eligible); or appointment at U.S. Consulate (if abroad)

21 Visa Bulletin for November 2008 Employment-based immigration All Chargeability Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd C 01JUN04 01JUN03 C C 3rd 01MAY05 01FEB02 01OCT01 01SEP02 01MAY05 Other Workers 15JAN03 15JAN03 15JAN03 15JAN03 15JAN03 4th C C C C C

22 Grounds of Inadmissibility Substantive reasons for refusal of visa or admission Health grounds Criminal records Security concerns Immigration violations Fraud Apply at time of adjustment or visa appointment

23 AC21/Portability Allows person with approved labor certification and pending green card to change jobs: Must have adjustment application (I-485) pending for at least 180 days New job must be in similar occupational category as job on labor certification May port to self-employment I-140 must be approved

24 AC21/Portability Problem Areas in Employment-Based Immigration: Employer must show ability to pay wage Employee must maintain status Limited relief under 245(k) Employee should maintain H-1B status or EAD If EAD and no H-1B, need advance parole to travel

25 Family Members Most categories of family and employment immigration include spouses and children under 21 Some children who turn 21 in the process still qualify as derivatives

26 DV Lottery For countries of low immigration Submit application on-line (between Thursday, October 2, 2008, and noon, Monday, December 1, 2008 If chosen, apply for adjustment (if in U.S. and eligible) or visa appointment if abroad October 1 September 20 of fiscal year after selection, includes family

27 DV Lottery Natives from the following countries are not eligible for the DV Lottery: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam

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