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Immigration Workshop For International Researchers and Professors

Immigration Workshop For International Researchers and Professors. Eugene Goldstein, Esq. Law Offices of Eugene Goldstein & Associates (212) 374-1544 eglaw@aol.com www.eglaw-group.com. Choosing an Immigration Lawyer. Four Tips #1: Lawyer Must be a Member of AILA

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Immigration Workshop For International Researchers and Professors

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  1. Immigration Workshop For International Researchers and Professors Eugene Goldstein, Esq. Law Offices of Eugene Goldstein & Associates (212) 374-1544 eglaw@aol.com www.eglaw-group.com

  2. Choosing an Immigration Lawyer • Four Tips • #1: Lawyer Must be a Member of AILA • #2: Only Pay a Fixed Legal Fee • #3: Only Immigration Law • #4: Student Should Pick a Lawyer Via Reference

  3. Where to get the Right Advice? • FSA • The Appropriate Lawyer • Cheapest is not the best. • Find the specialist - don’t choose lawyers who advertise for general practice • New York City Legal Referral Service • 212-626-7373 or www.iLawyer.com • Reliable Friends • Beware of Mistaken Perception of New Laws

  4. Beware of Non-Lawyer Experts, Notarios, Travel Agents, etc. • To Report Unauthorized Practice of Law • N.Y.S. Attorney General’s Office - http://www.oag.state.ny.us/ • N.Y. County District Attorney’s Office: • 212-335-3600 • Northern Manhattan: • 212-864-7884 • To Confirm Lawyer • Unified Court System - 212-428-2800 • Lawyer licensing is by state, please check each state’s board of bar examiners online.

  5. Role of Lawyer in United States • Not a fixer-licensed to represent you. • A lawyer will take your legitimate interests and concerns and evaluate them within the context of appropriate law. • If it sounds too good to be true, leave! • Lawyer does not just fill out forms – it is about which form, what entries, minefield questions, what timing and sequence for filing – and what not to file, spot problems, avoid issues, permit visits home, employment, avoid being an overstay. • Immigration is a very complex, delicate, and interdependent system. • When error is made, it may be too late to get toothpaste back in the tube.

  6. The Various Federal Agencies: • DOS (Department of State) through its Visa Office and the U.S. Consulates issue Visas. • CBP (Custom and Border Protection) – the “Gatekeeper”, they stamp you in. • This is the first point of contact at airports or other ports of entry. • USCIS (United States Citizenship and Immigration Services) - • Decides motions to reinstate, changes of status, and employment cards – and maybe one day, green cards. • ICE (Immigration and Custom Enforcement) –The immigration police who manage SEVIS and enforce compliance. • USDOL, HHS, Social Security, DMVs

  7. Visa: The Key to Enter the U.S. This is a Travel Document Consulate Laminates into Passport Status: I-20 or Certificate from School DS 2019 from Institution I-94 Stamped at Entry Changed by USCIS While in the U.S. Note  OPT is Under F-1 Status Academic training is under J-1 status What is a Visa? What is Status?

  8. General Issues • Finding a Job • Employers CAN Discriminate Against International Researchers and Professors. • What to Say in the Job Interview? • Should I disclose that I will need to be “sponsored”? • What should I say? • Sell Yourself. • Please call my very reputable lawyer. • The employer does not need to advertise for the H-1B category.

  9. H-1B • Specialty Occupation = Professional • 4 year degree or higher • Major from degree Must Match Job Duties • Not What you Have – But What the Job Needs: • For example: Registered Nurses are not professional as job requires only a 2 year degree. • For example: Specialty or head nurse does qualify as job requires B.S. degree. • Full Time(35 hr+) vs. Part Time (must be able to support yourself)

  10. H-1B • 6 Year Limit (3+3, etc.) • 1 Year Outside U.S. Before Reenter in H-1B Cycle • Reclaim Time Spent Outside U.S. • Prove with Entry/Exit Stamps, Boarding Passes, Frequent Flier Records, Etc. • AC21 Extension if Pending Employment-Based Green Card Applications for 1 Year • Specific To Employer • Each Employer Must Petition. • One Employer/One Petition, Or • Multiple Employers/Multiple Petitions. • Use of an Agent Employer For Multiple Short-Term Jobs.

  11. H-1B Cap • 65,000 +/- • Plus 20,000 Advanced U.S. Degrees • Government Fiscal Year is 10/1 – 9/30 • DOL Permits Filing 6 months Early • File 4/1 – 4/5 • If Over Cap  Lottery • If you win the H-1B lottery – OPT extended to 10/1 H-1B start date with employment – but no F-1 travel. • If you lose – continue in school or consider alternative visa categories, or go home.

  12. H-1B Jobs Exempted from Quota • Employment at a U.S. Institution of Higher Education (Colleges or University) or a Related/Affiliated Non-Profit Entity. • Employment at a Non-Profit Research Organization, or a Federal Government Research Organization, or maybe State or Local Government Benefiting the Federal Government.

  13. Six Year Maximum • When Should H-1B Petition be Filed? • Need to travel if F-1 visa expired. • Give Up OPT Completely or Partly. • Gamble each year to capture Your H-1B When Available – Uncertainty. • Can change or add employer with a new petition and begin when filed. • Official USCIS Receipt (to complete I-9), or • FedEx/UPS Receipt

  14. Employer Files for H-1B: • Labor Condition Application – LCA • Not Labor Certification – No Newspaper Advertising • I-129 • H-Supplements (Statistics, Fee Exemption), Explanation Letter, Supporting Documents (Credentials, Employer Bona Fides) • Costs = • Filing Fee $320 • Training Fee $750 (Companies of 25 employees or less/$1,500 if 26 employees or more) – none if “cap exempt” • Fraud Detection Fee $500 by Employer • Premium Processing Fee $1,000 (optional)

  15. Change of Status While in the U.S. Consular Notice To Obtain Visa Outside the U.S. Change Status or Consular Notice

  16. Other Categories If H-1B is Unavailable or Not Appropriate: • E-1: Treaty Trader • E-2: Treaty Investor • E-3: Australian Specialty Occupation • L-1: Intracompany Transferee • O-1: Extraordinary Individual • P-1: Entertainment Group • TN: NAFTA (Mexico, Canada) • Free Trade: Chile, Singapore • A: Diplomat • G: Non-Government Diplomat • Ex: National Monetary Fund, U.N., World Bank,etc. • I: Journalist • R: Religious Worker

  17. Green Card Categories • Family-Based (I-130) • Employment-Based (I-140)

  18. Family-Based Green Card • Immediate Relative (Above the Quotas): • Marriage to Citizen (USC) • Parents of USC (Includes Under 21 Children) • Preference Categories: • Unmarried Sons and Daughters (Over 21) of USC (Age Out Provisions) • Spouses, Children and Unmarried Sons and Daughter (over 21) of LPR. • Married Sons and Daughters of USC • Siblings of Adult USC • To Adjust Status in U.S. – Remain in Lawful Status. • If Unable to Adjust Status in U.S. – Consular Process if Able.

  19. Family-Based Green Card • Relationships must be bona fide. • Relief is available for spousal abuse • VAWA Applies to Both Women and Men. • Go to hospital • Call police • Take photos of injuries • Private Agencies: • Sanctuary for Families • 24hr Hotline  (800) 621 – HOPE • NYC (212) 349 – 6009 • New York State: • New York State's 24-hour Domestic Violence Hotline:(800) 942-6906 (English) (800) 942-6908 (Spanish)

  20. Green Card Quotas • Limited Number of Places Each Year for Specific Family and Employment Categories, by Category and Country. • Place in Line Set by Petition Filing Date. • Changes Each Month – Check the Visa Bulletin Website http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. Employment Quotas • Fewer Places in E3, Therefore Delays Up to Many Years. • E2 Delays for China and India. • In Order to Adjust Status in U.S., Must Remain in Lawful Status. • If Legal in U.S. Adjust Status in U.S. • If Out of Status, Consular Process, but, May be Excluded for 3 or 10 Years If Unlawfully Present (180 day grace period) • Exempt From Unlawful Presence if D/S.

  21. Green Card Categories for Scientific Researchers and Professors • Extraordinary Ability (E1-1) • Outstanding Professors or Researchers (E1-2) • Advanced Degree Professional with Waiver of Labor Certification in the National Interest of the U.S. (E2-1) • Advanced Degree Professionals (E2-1) or Skilled Workers, Professional or Other Workers (E3-1) with Labor Certification in a Special Handling Occupation • Advanced Degree Professional (E2-1) or Skilled Worker, Professional or Other Worker (E3-1) with Labor Certification

  22. Extraordinary Ability (E1-1) • A scientist with a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of their field. (May self-petition.) Demonstrate: • Evidence of sustained national or international acclaim and recognition of achievement in the field, such as a major internationally recognized award (Criteria similar to “O-1” nonimmigrant category), OR

  23. Extraordinary Ability (E1-1) 2. At least three of the following: • Membership in an organization which requires outstanding achievement for membership, as judged by recognized national or international experts. • Published material in professional or major trade publications or other major media relating to work in the field. Peer reviews of papers. • Participation, either individually or on a panel, as a judge of the work of others in the same or in an allied field. • Evidence of original scientific or scholarly contributions of major significance to the field. • Evidence of receipt of a high salary or remuneration relative to others in the field. • No offer of employment required – but evidence of a commitment to work in the field in the U.S. must be shown.

  24. Outstanding Professors or Researchers (E1-2) • A U.S. employer must show an intent to employ in U.S. in field as a tenured or on a tenure track faculty or a permanent research basis (indefinitely – with an expectation of continued employment).

  25. Outstanding Professors or Researchers (E1-2) • Evidence of recognition as “outstanding” must include at least two of the following: 1. a. Receipt of major prizes or awards for outstanding achievement. b. Membership in associations which require achievement for membership. c. Published material in professional publications written by others about applicant’s work in the academic field – not merely citations. Peer reviews of papers. d. Participation, either individually or as part of a panel, as a judge of the work of others, e.g.: Ph.D. panels, peer review of journal papers. e. Original scientific contributions to the field. f. Authorship of scholarly books or articles (in scholarly journals with international circulation);and 2. Three years experience in research in the field. If the three years were prior to the receipt of the Ph.D., recognition of the Ph.D. research as outstanding. 3. Letters from independent third parties in the field attesting to the outstanding nature of the applicant’s work. As many letters as possible, from individuals with the greatest accomplishments.

  26. Advanced Degree Professional with Waiver of Labor Certification in the National Interest of the U.S. (E2-1) • May self-petition. • Applicant must show a U.S., or foreign degree equivalent to at least a Masters degree, or a Bachelors degree and at least 5 years of progressively more responsible experience, or a Ph.D. Evidence must include: • Official academic record • Any professional licenses • Professional organization memberships • Evidence of recognition by peers, government or professional entities

  27. Advanced Degree Professional with Waiver of Labor Certification in the National Interest of the U.S. (E2-1) • To waive the Labor Certification and job offer requirement: • Evidence that the work is on a matter or project which is in the U.S. national interest, e.g.: NIH or NSF grants, media articles showing public health significance, etc. • Evidence of the applicant’s unique, integral, and critical role or major impact upon the project, i.e.: highly specialized expertise, the loss of which would seriously and negatively impact the project; being more qualified than other people in the field, first among equals. • Letters from independent third parties, such as knowledgeable and respected academics, government or political figures supporting items 1 and 2, and demonstrating a record of high level of accomplishment.

  28. Advanced Degree Professionals (E2-1) or Skilled Workers, Professionals or Other Workers (E3-1) with Labor Certification in a Special Handling Occupation • A college or university teaching faculty member whose institution files an application for Alien Employment Certification for certification by the U.S. Department of Labor. • The application must demonstrate that the alien was selected pursuant to a competitive recruitment and selection process in which the alien was found to be “more qualified than any of the United States workers who applied for the job.”

  29. Advanced Degree Professionals (E2-1) or Skilled Workers, Professionals or Other Workers (E3-1) with Labor Certification in a Special Handling Occupation • Evidence must include: 1. A statement signed by the individual with hiring authority outlining in detail the complete recruitment procedure, including: a. Total number of applicants b. Specific, lawful job related reason why the alien is more qualified than each U.S. applicant c. Final report by the recommending body. 2. A copy of at least one advertisement in a national professional journal. 3. Evidence of all other recruitment sources, e.g.: conferences, postings, etc. 4. Statement attesting to degree of alien’s educational or professional qualifications and academic achievements. 5. Application must be filed within 18 months after a selection is made, pursuant to the competitive recruitment and selection process.

  30. Advanced Degree Professional (E2-1) or Skilled Worker, Professional or Other Worker (E3-1) with Labor Certification • Unless one of the prior categories is used, an application must be filed by an employer with the U.S. Dept. of Labor for certification that “there are not sufficient United States workers, who are able, willing, qualified and available at the time of application for a visa and admission into the United States,” at the place of employment, and the employment will not adversely affect the wage and working conditions of similarly employed U.S. workers.

  31. Advanced Degree Professional (E2-1) or Skilled Worker, Professional or Other Worker (E3-1) with Labor Certification • The employer must show: • Sufficient funds to pay the wage when the application is filed. • The wage offered equals or exceeds the prevailing wage. • The job is open to any qualified U.S. citizen or lawful permanent resident. • The job duties and requirements are those objectively required for proper performance of the job, unless justified by bona fide business necessity. • The alien did not gain his or her experience at the same job with the same employer, unless certain conditions met. • Advertisement in professional journal/2 Sunday newspapers, and posting. • Performed 3 of 10 recruitment methods for professionals. • Posting of job offer for 10 consecutive business days.

  32. QUESTIONS?

  33. Contact Information Eugene Goldstein, Esq. Law Offices of Eugene Goldstein & Associates 150 Broadway Suite 1115 New York, NY 11038 (212) 374-1544 Fax: (212) 374-1435 eglaw@aol.com www.eglaw-group.com

  34. Immigration Workshop For International Researchers and Professors Eugene Goldstein, Esq. Law Offices of Eugene Goldstein & Associates (212) 374-1544 eglaw@aol.com www.eglaw-group.com

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