Immigration Workshop for International Scholars, Faculty & Staff

Transcription

1 Immigration Workshop for International Scholars, Faculty & Staff During the seminar: Please use your Chat function to ask questions Cliff Rosenthal, Esq. Wolfsdorf Immigration Law Group VISA-LAW Santa Monica Office nd Street Santa Monica, CA New York Office 641 Lexington Ave, 15 th Floor New York, NY 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.

2 Immigrant Visa ( Green Card ) Options Green Card Lottery ( 50,000 green cards Registration period October/part of November No application fee Must be eligible to participate

3 Green Card Lottery Based on country of birth (not citizenship) Countries that have NOT been eligible include: 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 Cross-charge to spouse s country of birth?

4 Immigrant Visa ( Green Card ) Options 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 6-8 month processing Conditional 2 year green card (marriage cases) Adult child must be 21 years old

5 Family Based Immigrant Visas continued... Unmarried Adult Children of U.S. citizens (F1) (7 year backlog) Spouse/Children of Legal Permanent Resident (LPR) (F2A) (2-3 year backlog) Unmarried adult children of LPR (F2B) (8 year backlog) Married adult children of U.S. citizens (F3) (9 year backlog) Brothers and sisters of U.S. citizens (F4) (11-12 year backlog)

6 Employment 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

7 Special Handling PERM Labor Certification (EB-2) University/College Teachers Memorializes competitive recruitment process One print 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)

8 Special 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.?

9 Special 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

10 August 2012 Visa Bulletin Employment- Based All Chargeabil ity Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd 01JAN09 U U 01JAN09 01JAN09 3rd 08SEP06 08NOV05 01OCT02 08SEP06 15JUN06 Other Workers 08SEP06 15JUN03 01OCT02 08SEP06 08JUN06 4th C C C C C Certain Religious C C C C C Workers 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 (

11 Special Handling PERM LC Common Issues/Problems Missed 18 month window Print advertisement in national journal? Web based journals? EB-2 retrogression for Chinese and Indian nationals

12 EB-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

13 EB-1 Outstanding Professor/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

14 EB-1 Process Step 1: I-140 Immigrant visa petition Step 2: I-485 Application to Adjust Status to Permanent Residence (AOS)» Within days - Employment Authorization Document (EAD) and Advance Parole travel document File concurrently or separately Can premium process I-140 ($1,225)

15 Current Trends Life after the Kazarian decision Two part test: 1. Meeting 2 out of 6 regulatory criteria 2. Final merits determination is alien recognized internationally as outstanding in the field?

16 EB-2 Schedule A, Group II: Alien of 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

17 Schedule 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

18 Schedule A, Group II: Alien of Exceptional 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

19 PERM 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?

20 Process 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

21 August 2012 Visa Bulletin Employment- Based All Chargeabil ity Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd 01JAN09 U U 01JAN09 01JAN09 3rd 08SEP06 08NOV05 01OCT02 08SEP06 15JUN06 Other Workers 08SEP06 15JUN03 01OCT02 08SEP06 08JUN06 4th C C C C C Certain Religious C C C C C Workers 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 (

22 PERM 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

23 Self-Petitioning Options (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

24 Criteria: 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

25 EB-1 Process Step 1: I-140 Immigrant visa petition Step 2: I-485 Application to Adjust Status to Permanent Residence (AOS)» Within days - Employment Authorization Document (EAD) and Advance Parole travel document File concurrently or separately Can premium process I-140

26 Current Trends Life after the Kazarian decision Two part test: 1. Meeting 3 out of 10 regulatory criteria 2. Final merits determination Does alien have sustained national or international acclaim? Have achievements been recognized indicating that alien is one of that small percentage who has risen to the top of the field?

27 EB-2 National Interest Waiver (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

28 National 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

29 Retrogression 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

30 Summary of Employment-Based Options 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

31 Tips to Build Your Case Publish or perish international peerreviewed journals Speak at national or international conferences Engage in peer-review activity for journals, conference committees, scientific boards Mainstream media coverage do it!

32 Common 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

33 Common 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

34 What Happens When You Reach 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

35 Other Nonimmigrant Visa Options 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

36 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

37 Spouses 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

38 Options for J-1s subject to two-year home residency requirement Prohibited from changing to H-1B or L-1 until 2 year obligation is satisfied or alien obtains waiver May obtain the following visas: O-1, TN, E-3, TN, F-1 Must still comply with two-year home residency obligation

39 H-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) Timing issue limited situations Concurrent employment

40 I have my Green Card, what now? Maintaining the green card Physical presence requirements Becoming a U.S. citizen Eligibility requirements Pros and cons

41 Q & A Please use your Chat function to ask questions Send your CV to us for an assessment of your options For follow-up questions: Cliff Rosenthal, Esq. crosenthal@wolfsdorf.com Wolfsdorf Immigration Law Group VISA-LAW Los Angeles Office nd Street Santa Monica, CA New York Office 641 Lexington Ave, 15 th Floor New York, NY 10022