Pathways to Permanent Residency

1. Pathways to Permanent Residency • Elizabeth Leibach, Director, Northern Kentucky • University, ISSS • Ted Farrell Immigration Law, PLLC

2. Introduction to Permanent Residency • 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)

3. General Introduction The INA 201 through 204 sections: • Establish the worldwide level of immigrant visas • Who is entitled 3. The priorities for distribution

5. General 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

6. Three Pathways • Pathways to LPR Status • Family-Based • Employment-Based • First Preference • Second Preference • Third Preference • Humanitarian • Asylum • Refugee • Diversity Visa Lottery

7. 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)

8. Priority Dates • 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

10. Parties Involved in LPR Process • 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)

11. Documents of Status or Evidence of Filings • 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)

12. Forms • 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)

13. (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. 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

14. Common Types Family-Based 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)

15. Dependents and Other Family Relationship 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

16. Diversity Lottery 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)

17. (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. Common University Types Employment-Based • 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)

18. 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)] Basics of EB-1

19. SECOND Preference (EB-2) • Special Handling • Teaching Faculty selected within 18 months of filing the petition • Requires a national PRINT publication • Employee 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.

20. 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”

21. 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

22. Eligibility and Inadmissibility Considerations

23. Eligible for Adjusting Status 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).

24. LPR Processes and ProceduresQuestions 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.

25. Who’s Responsible I-140 is Employer’s responsibilityI-485 is the Employee’s responsibility Critical Concerns on the I-485 a) What if I’m asked tough questions that are unclear or ambiguous on the I-485? b) What are the problems on the I-485?

26. Internal ConsiderationsInternal and Legal Policies on campusUsing Outside Counsel

27. Internal Policies on campus • Written policy is best • Involve Human Resource & Legal Department • Determine the scope of your work • filing none • filing all • filing some • difficult cases only

28. Considerations for Outside Counsel • Weighing the university size, staff • knowledge and training • Legal Responsibility • Non-attorney employee purview (who can sign) • University is not the applicant with Family-based petitions • Working with Outside Counsel (How do I find good counsel?)

29. Questions???