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Immigration Considerations for a Post-Dartmouth World

Immigration Considerations for a Post-Dartmouth World. Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer, Esq. Philadelphia - New York. Agenda. H-1B Visas & Alternatives J-1 Issues Am I Subject? If yes, What are my Options? Options for Permanent Residence Q&As. H-1B Visas.

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Immigration Considerations for a Post-Dartmouth World

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  1. Immigration Considerationsfor a Post-Dartmouth World Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer, Esq. Philadelphia - New York

  2. Agenda • H-1B Visas & Alternatives • J-1 Issues • Am I Subject? • If yes, What are my Options? • Options for Permanent Residence • Q&As

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

  4. H-1B Quota What is it and what does it mean? • 65,000 H-1bs • FY2009 still going…! • FY2008 gone by April 3, 2007 • FY2007 gone by May 2006 • FY2006 gone by August 2005 • FY2005 gone by October 2004 • 20,000 for US awarded advanced degrees • FY2009 gone • FY2008 gone by April 30, 2007 • FY2007 gone by August 2006 • FY2006 gone by January 2006

  5. Avoiding H-1b Quota • Exemption based on employer • Universities • Non-profit affiliated with universities • Non-profit or gov’t research organization • Or place of employment, law says “at” • Exemption based on employee • Previously counted • Singapore/Chile • Concurrent employment

  6. Can’t avoid the quota, planning strategies? • Filing April 1 for Oct 1 start date • Going from quota exempt to quota subject • Portability? • Concurrent employment? • Working “at” University or non-profit

  7. Alternatives to H-1b • Alternative Visa Options • O-1 • E-3 (Australians) • TN (Canadian/Mexicans) • J-1 • E visas (treaty between home & US) • L visas (work for company overseas, transfer to US) • I visa (journalists – disseminate news abroad)

  8. More alternatives… • Alternative Visa Options (cont’d) • EAD through spouse’s status • J-2 • E • L-2 • I-485

  9. J-1: Am I Subject? • Who is subject to 2-year return? • Exchange Visitor Skills List • Right Skill? • Right List? • Receipt of Government Funding • ECFMG Sponsored for GME

  10. What does it mean to be subject? • What Can’t I do? • No H Visa • No L Visa • No K Visa • No Immigration Visa (final step of green card) • What Can I do? • Go Home • Apply for Visa other than H or L • Obtain a Waiver

  11. J-1 Waiver Options • Waiver options • Hardship • Persecution • Federal government agency waiver • State 30 waiver (clinical only) • No objection waiver

  12. What is Permanent Residency? • Authorization to Live & Work Indefinitely in the United States • “Immigrant Visa” • The “Green Card” or “Form I-551” • Not always ‘forever’ – may be abandoned or taken away

  13. Immigrant Versus Non-Immigrant Visas • Immigrant Visa • Green Card/Permanent Residency • Non-Immigrant Visa (NIV) • H, F, J, O, etc • Limited duration • Specific to employer/institution • Specific to purpose (work/study/tourism)

  14. Permanent Residency Quotas • Annual Limit on Permanent Residency • Per Country Limit – 7% • Allocated by: • Priority Date – place in line • Preference Category

  15. How Do I Apply? • Family • Investment • Asylum • Employment

  16. Permanent Residency Quotas • Employment Based Preferences • First Preference (EB-1) • Extraordinary Ability, Outstanding Researcher, Multinational Executive • Second Preference (EB-2) • Nat’l Interest Waivers, Advanced Degreed Professionals, Bachelors plus 5 years exp. • Third Preference (EB-3) • Skilled Worker (2+ years experience), Bachelor’s Degree

  17. Permanent Residency Quotas, Where Are We Now? Visa Bulletin for October 2009

  18. Permanent Residency Quotas,Where are We Now? • “Oversubscribed” versus “Available” • Available if: • Visa Bulletin indicates “C” = current • Priority date earlier than posted date • Current Situation (October 2009) • EB-3 • China – June 1, 2001 • India - April 15, 2001 • Mexico – June 1, 2001 • All Other – June 1, 2001

  19. Permanent Residency Quotas,Where are We Now? • Current Situation • EB-2 • China – March 22, 2005 • India – January 22, 2005 • “all other” – Current • EB-1 • Current

  20. Employment Based (EB) Permanent Residency • Employer-sponsored or self-sponsored • Labor certification or extraordinary/national interest/exceptional • Multiple petitions • Multi-Step Process • Non-Immigrant Status?

  21. Employment Based (EB) Permanent Residency: Self-Petitions Extraordinary Ability/EB-1 (I-140, filing fee $475) • “One of a Few at the Top” • Factors Considered in Initial Evaluation • 1st authored articles/impact factors • Citations to 1st authored work • Conference Presentations • Peer Review/Manuscript Review Work • References from independent Experts • Documenting Regulatory Criteria • Preparation/Processing Times

  22. I-140 Self-Petitions (cont’d) National Interest Waiver/EB-2 (I-140, filing fee $475) • Three Prong Test • Field is of Substantial Intrinsic Merit • National Impact of Your Contributions • You Are “Substantially Better” Than Your Peers

  23. Employment Based (EB) Permanent Residency: Employer-Sponsored Outstanding Researcher/EB-1(I-140, filing fee $475) • Similar to Extraordinary Ability • At least 3 Years experience • Qualified Employers: • Academic Institutions • Industry • at least 3 FT researchers • Recognition in field

  24. Employment Based (EB) Permanent Residency: Employer-Sponsored • Labor Certification Application (PERM) • Employer Sponsored • Employer MUST Pay Costs • Recruitment • Prevailing wage • Timing • First of 3 steps • No filing fee for this step

  25. Permanent Resident StatusAdjustment of Status (I-485) • Timing • Preference categories/quotas • Priority dates • Processing times • Concurrent filing (I-140/I-485) • I-485 filing fee $1010, includes: • Employment authorization (I-765) • Advance parole (I-131)

  26. Permanent Resident StatusAdjustment of Status (I-485) • Adjustment portability • H-1B Extensions • One Year • Three years • Spouses

  27. Issues Relating to NIV Status During Permanent Residency Process • Travel • Extensions of Status • Dependents • Eligibility for OPT

  28. Contact Information Suzanne B. Seltzer, Esq. • Telephone: 212-796-8846 • Fax: 212-297-1799 • Email: sseltzer@klaskolaw.com • Websites: • www.klaskolaw.com • http://blog.klaskolaw.com • www.eb5immigration.com • www.worksite-compliance.com

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