Immigrant Visa Options for PostDocs Presented by: David H. Nachman, Esq. and

1. Immigrant Visa Options for PostDocs Presented by: David H. Nachman, Esq. and Victoria Donoghue, Esq.

2. Overview Path to Permanent Residence for Researchers & Post Docs • F Visas (students) • J Visas (research scholars) • H-1B Visas (employees) • Employment Based Permanent Residence

3. THE J-1 VISA • Exchange Visitors - Students • Research Scholars

4. J -1 Sponsors • Every exchange alien must enter the US to participate in a designated Exchange-Visitor program • Categories of Exchange-Visitor programs: • Students/student interns • Short-term scholars • Trainees/interns • Professors • Research Scholars • Specialists • Other

5. Period of stay • Post-doctoral training- 18 months • College and university professors and research scholars- 5 yrs from the program begin date in SEVIS

6. J Visas and 2 Year Foreign Residency Requirement • Ineligible for an H visa or permanent residence until after he has spent 2 yrs in home country • Who is subject to this? - skills list - US or home government funding - Exchange visitors who come to the US to received graduate medical education or training

7. Waivers of 2 Year Home Residency requirement • Interested governmental agency waiver • Exceptional hardship waiver • “no objection” waiver • Advisable to seek an advisory opinion from the DOL before applying for a waiver

8. H-1B Visas • The position must be in a specialty occupation: - highly specialized knowledge; AND - attainment of a BA or higher in the specialty occupation

9. Period of Stay • Two three year periods of stay • Extensions only in some cases where a permanent residence petition is pending

10. Two Important H-1B Concepts • Concurrent H-1Bs permitted • H-1Bs are portable

11. O Visas • Aliens of extraordinary ability in the sciences, arts, education, business, or athletics • Must intend to work in their area of extraordinary ability or achievement • No numerical cap

12. Duration of Stay • An initial period of 3 years is permitted • Extensions of stay granted in increments of up to 1 year

13. Employment Based Permanent Residence Requirements: • Full-time employment • Attainment of DOL Labor Certification • Ability to pay • Availability of Immigrant visa number

14. 1st Preference (EB1)- NO labor cert required • Outstanding Professors & Researchers • Aliens of Extraordinary Ability - Top of their field

15. EB-1 Extraordinary Ability • Extraordinary ability in the field of Science, education, business or athletics • must demonstrate sustained national or international acclaim and recognition by providing evidence of: • Receipt of a major, internationally recognized award, such as the Nobel Prize; OR • At least three of the following: • receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field; • membership in associations which require outstanding achievements of their members

16. Extraordinary Ability (Con’t) • Published material about the alien in professional publications relating to the alien’s work; • Evidence of the alien’s original scientific, scholarly, artistic, athletic or business-related contribution of major significance; • Evidence of the alien’s authorship of scholarly articles; • Evidence that the alien has performed in a critical role for organizations that have a distinguished reputation; • Evidence that the alien has commanded a high salary or other significantly high remuneration for services in relation to others in the field.

17. Outstanding Researchers and Professors • Teaching positions must be tenured or tenure track appointments, while research positions must be permanent. • Universities or other institutions of higher learning can offer teaching or research positions; private employers can offer only research positions, and must demonstrate that they employ at least three full-time researchers.

18. Outstanding Researchers and Professors (Cont’d) • Petitions in this category needs evidence any two of the following six groups: • 1. Receipt of major prizes or awards in the academic field. • 2. Membership in associations which require outstanding achievements of their members. • 3. Published material in professional publications written by others about the beneficiary’s work in the academic field. • 4. Participation as a judge of the work of others in the field. • 5. Original scientific or scholarly research contributions. • 6. Authorship of scholarly books or articles in the academic field.

19. 2nd Preference (EB2)- Labor Cert usually required • Schedule A, Group II • National Interest Waiver • PERM Labor Certification Application • Advanced Degree Professional - Job requires a degree beyond a BA

20. National Interest Waiver (NIW) • EB2 classification but no labor cert required • Legal Test: • Substantial Intrinsic Merit- the work substantially benefits the national economy, cultural or educational interests, or welfare of the US • Benefit is national in scope • Benefit derived from the alien’s participation in the field considerably outweighs the inherent national interest in protecting US workers (looks at alien’s standing in the field)

21. 3rd Preference- Labor Certification Required • Must have a BA - a professional not qualifying for EB2 • Must possess at least 2 years of experience. • Must prove there are no US Workers who can take the job. Special PERM Requirements for Professors/Teachers.

22. Questions? Please feel free to contact our office for more information at: info@visaserve.com 201-670-0006 ext. 100 http://www.visaserve.com