Immigration Seminar Transitioning to Permanent Residence (Immigrant Visa Options) 16030 Ventura Boulevard, Suite 300, Encino, CA 91436 T 818.435.3500 F 818.435.3535 [email protected] www.SostrinImmigration.com Overview • Permanent Residence – – – – – PERM Labor Certification Extraordinary Ability (EB-11) Outstanding Professors/Researchers (EB-12) National Interest Waivers (NIW) (EB-2) J-1 Waivers • Immigration Planning • Q&A Overview • All non-U.S. citizens and non-permanent residents require a visa to enter the U.S. • Most nonimmigrant visas require employer sponsorship • Employer may sponsor an employee for permanent residence (“green card”) • Under some circumstances, foreign national may self-sponsor for permanent residence Common Nonimmigrant Visas • • • • • • • F-1 Optional Practical Training (OPT) J-1 Exchange Visitor H-1B Specialty Occupation E-3 (Australians) E-2 Treaty Investor TN (Mexicans or Canadians) O-1 Extraordinary Ability Immigrant Visas • Immigrant visa is path to permanent residence • Options depend on job, employee’s qualifications, employer’s involvement • Each case is analyzed individually to determine the best strategy • Only two options for self-sponsorship (EB-11 and NIW) Immigrant Visas (PERM) • PERM Labor Certification process: – Test of local labor market for available U.S. workers, able, willing and qualified for the job – Recruitment conducted before applying to DOL – If no able, willing and qualified U.S. workers, DOL will certify PERM application – If U.S. worker applies for the job and meets the minimum requirements, application may not be filed/may be denied Immigrant Visas (PERM) • Employer’s responsibilities: – Establish minimum requirements (educational, training, experiential) for the job – Recruit for a minimally qualified U.S. worker – Offer to pay prevailing wage – Pay legal fees and recruitment costs • Employee may not participate in recruitment Immigrant Visas (PERM) • Recruitment for professional positions: – Takes at least 2+ months – Two print ads in Sunday paper (may post ad in professional journal instead of 1 Sunday ad) – 30-day job order with State Workforce Agency – Employer must post notice for 10 days or provide to CBA – Three (3) additional venues from DOL list Immigrant Visas (PERM) • Three (3) additional venues, including: – – – – – – – – – – Job fairs Employer’s website Job search website other than the employer’s On-campus recruiting Trade or professional organizations Private employment firms Employee referral program with incentives Campus placement offices Local or ethnic newspapers Radio and television advertising Immigrant Visas (PERM) • All recruitment must be done 30-180 days prior to filing with DOL • All potentially qualified U.S. applicants must be interviewed to determine whether qualified • U.S. applicants: U.S. citizens, permanent residents, refugees or asylees • Non-U.S. applicants do not have to be considered Immigrant Visas (PERM) • 30 days after recruitment completed, may file application with DOL • Application filed electronically • DOL may audit the case (request hard copies of recruitment) • Employer must maintain DOL Compliance File for 5 years from date of filing PERM Immigrant Visas (PERM) • After PERM approved, may file immigrant visa petition (I-140) • Employer must show ability to pay worker’s wage (annual report, tax return, audited financial statements, and/or confirmation letter) • Employee must document meeting job requirements (education, training, experience) Immigrant Visas (PERM) • If no visa retrogression, beneficiary may file Adjustment of Status Application (I-485) • Visa retrogression: – Backlog in immigrant visa availability for certain categories (EB-3 for all countries; EB-2 for China and India) – Not eligible to file I-485 until priority date (PD) becomes current – PD established when PERM filed Immigrant Visas (PERM) • Filing fees: – PERM: no fee – I-140: $580 (premium processing available) – I-485: $1,070 per applicant (premium processing not available) • Processing periods: – PERM: 8-9 months if no audit – I-140: 6-12 months (15 days if premium) – I-485: 6-12 months if no security check delays Immigrant Visas (Special Recruitment PERM) • Special Recruitment PERM requirements: – Available to university/college teachers only – Job must have classroom teaching component – Must file PERM within 18 months of selection for the job – Job must be advertised in print ad in national journal (online ad will suffice) Immigrant Visas (Special Recruitment PERM) • DOL will certify application if: – University conducted competitive recruitment and selection process; and – Foreign worker is more qualified than any U.S. worker who applied for the job • Employer must post notice for 10 days or provide to CBA • Employer must pay prevailing wage Immigrant Visas (EB-11) • Immigrant Visa as Scientist of Extraordinary Ability (EB-11) requirements: – Demonstrate “sustained national or international acclaim and recognition for achievements” – Show that beneficiary has risen to the top of the field • May be sponsored by employer or self Immigrant Visas (EB-11) • Similar legal standard to O-1 visa • How to demonstrate “sustained acclaim:” – Evidence of a one-time achievement (a major, internationally recognized award); or – Evidence of at least 3 regulatory criteria • Must show that alien will work in the field of extraordinary ability Extraordinary Ability (EB-11) • One-time achievement: – Nobel Prize – Fields Medal – Abel Prize – Other comparable achievement • Do not have to prove three criteria if have one-time achievement Immigrant Visas (EB-11) • Must meet at least 3 of the following: Nationally or internationally recognized prizes or awards Membership in associations that require outstanding achievements Published material about the beneficiary or beneficiary’s work Participation as a judge of the work of others Original scientific or scholarly contributions of major significance Authorship of scholarly articles Performing in a critical/leading role for organizations with distinguished reputation – Evidence of a high salary or other remuneration for services – Display of work at exhibitions or showcases – Evidence of commercial success – – – – – – – Extraordinary Ability (EB-11) • Nationally or internationally recognized prizes or awards – Student-level awards, scholarships, travel awards will not suffice – Awards from national or international professional associations are acceptable – Must show selection criteria for winning award – Research grants are challenged, but mayqualify Extraordinary Ability (EB-11) • Membership in associations that require outstanding achievements – Memberships that only require payment of dues will not suffice – Membership in National Academy of Sciences meets the standard – Get letters from the organizations confirming standards for membership Extraordinary Ability (EB-11) • Published material about the beneficiary or beneficiary’s work – Citations alone will not suffice – Quotes from or discussion of beneficiary’s work, press about beneficiary, other media will qualify – Must establish a connection between beneficiary and published material – Press does not have to voice acclaim Extraordinary Ability (EB-11) • Participation as a judge of the work of others • Service as editor or reviewer for academic journals, evaluator of grant applications will qualify • Obtain documentary confirmation (e.g., letters from journals, listing of editorial board members, etc.) Extraordinary Ability (EB-11) • Original scientific or scholarly contributions of major significance – Strong expert reference letters are critical – Other ways to show originality and significance of contributions: • Citations by other scholars • Publication in high-impact journals • Requests for reprints Extraordinary Ability (EB-11) • Authorship of scholarly articles – First- and second-author articles are important – Articles published in high-impact journals – Are articles cited by other scientists? – Do publications in conference proceedings count? – How many publications is enough? Extraordinary Ability (EB-11) • Performing in a critical/leading role for organizations with distinguished reputation – Must demonstrate position of essentiality or leadership (e.g., Department Chair, Dean, PI) – Must perform critical/leading role for an organization of distinguished reputation Extraordinary Ability (EB-11) • Evidence of a high salary or other remuneration for services – Look up Department of Labor data at http://www.flcdatacenter.com/OesWizardStart. aspx – Does not always apply to academic researchers – High salary in the home country could qualify Extraordinary Ability (EB-11) • Display of work at exhibitions or showcases – Criterion intended for performing artists – Scientific/scholarly presentations are similar to artistic exhibitions – The use of “comparable” evidence Extraordinary Ability (EB-11) • Evidence of commercial success – Patents must be successful – Confirmation of earnings – Confirmation of renown – press, etc. • Comparable evidence – rarely used – When to use – How to use Extraordinary Ability (EB-11) • Kazarian v. USCIS – Prohibited USCIS from adding new legal requirements – Introduced “final merits” concept • USCIS’s Interpretation of Kazarian – Two-step analysis – Better or worse? Extraordinary Ability (EB-11) • • • • • High legal standard Strong evidence = success May file I-485 concurrently Premium processing available No visa retrogression Immigrant Visas (EB-12) • Outstanding Professor or Researcher Immigrant Visa requirements: – Available to professors & researchers only – Must be sponsored by an employer (no selfsponsorship) – Sponsor may be a private research entity (with at least three researchers on staff) – Must demonstrate international recognition as outstanding in the field Immigrant Visas (EB-12) • Additional requirements: – Must have at least 3 years of teaching/research experience – Job must be tenured, tenure-track, or permanent (will require letter from employer) – Must meet at least 2 regulatory criteria to prove international recognition as outstanding Immigrant Visas (EB-12) • Must meet at least 2 of the following: – Major prizes or awards for outstanding achievement – Membership in professional associations that require outstanding achievements – Published material about beneficiary’s work – Participation as a judge of the work of others – Original scientific or scholarly contributions – Authorship of scholarly books or articles • May file I-485 concurrently • Premium processing available • No visa retrogression Immigrant Visas (NIW) • National Interest Waiver requirements: – Work must be of intrinsic merit; – Benefit to U.S. must be national in scope; and – National interest will be adversely affected if labor certification were required. • EB-2 immigrant classification (subject to retrogression for China and India) National Interest Waiver (NIW) • Must have advanced degree or exceptional ability (do not have to demonstrate both) • Government funding is important • Working with/for government agency • May file I-485 concurrently if visa number available • No premium processing available National Interest Waiver (NIW) • Myths about NIW: – NIW waives the two-year foreign residence requirement – NIW (EB-2) is “easier” than EB-1 – Having an advanced degree or exceptional ability is sufficient to qualify – All scientists qualify for the NIW J-1 Waiver • If subject to 2-year home residence requirement, J-1 holder: • Must return home for 2 years before eligible for H or L visas, or permanent residence • May not change status in the U.S. • May be eligible for other visas (J-2, O-1, TN, F-1, E-1, E-2, E-3) by applying abroad J-1 Waiver • J-1 holder may be subject to 2-year requirement because of: – Skills List (available at http://travel.state.gov/visa/temp/types/types_ 4514.html) – Government funding (U.S. or home country) – Graduate medical training (medical residency or fellowship) J-1 Waiver • If “subject,” J-1 holder may: – Fulfill 2-year requirement in home country (country of citizenship or last permanent residence); – Obtain another nonimmigrant status and stay in the U.S. (note: 2-year requirement will still apply); or – Obtain a waiver of 2-year requirement J-1 Waiver • Waivers of 2-year requirement: – No-Objection Waiver (not available if “subject” because of GME) – Interested Government Agency Waiver (e.g., Department of Health & Human Services, National Science Foundation, Department of Energy, Department of Defense, etc.) – Hardship Waiver – Persecution Waiver • Special considerations for Fulbright scholars J-1 Waiver • Processing periods: – No-Objection/IGA/Hardship/Persec. (1-6 mos.) – DOS (4 – 8 weeks) – USCIS (4 – 12 weeks) • Filing fee: – DOS case number: $215 – Some agencies/Embassies charge additional fee Immigration Planning • • • • • • Work with counsel and pick the right path Do not file prematurely Have a compelling “angle” to your case Present strong documentary evidence Explain your evidence to examiner Expert reference letters are key Immigration Planning • • • • • • • • • • Understand the big picture Determine your immigration, professional and personal goals Know how long processes take Establish a timeline & know your priorities Make a plan with your attorney/advisor Have a contingency plan Applying for permanent residence too early may result in a denial Applying for permanent residence too late may result in a gap in status Plan your immigration options in advance Maintain nonimmigrant status Presenter Alexander Dgebuadze ([email protected]) is a partner at Sostrin Immigration Lawyers, LLP in Los Angeles CA, a law firm dedicated to practicing exclusively U.S. immigration and nationality law. He focuses on business immigration law matters and represents healthcare, academic, automotive, banking, legal services, bioscience and high-technology clients. Mr. Dgebuadze has served on various regional and national committees of American Immigration Lawyers Association (AILA), has written extensively on advanced immigration law topics, and, most recently, served as a contributing editor for AILA’s Guide to Labor Certification (2011) and labor certification chapter editor for Kuzban’s Immigration Law Sourcebook (2012). Mr. Dgebuadze is listed in The International Who’s Who of Corporate Immigration Lawyers. Sostrin Immigration Lawyers, LLP Sostrin Immigration Lawyers, LLP is an immigration law firm headed by partners Rita Sostrin and Alexander Dgebuadze. The firm’s principals are recognized experts in niche business immigration law areas, including immigration of individuals of extraordinary ability, healthcare professionals, artists and entertainers, and personnel requiring permanent employment sponsorship through the Department of Labor laws and regulations. Our firm is also committed to offering guidance in family-based immigration matters and United States citizenship. We welcome you to contact us with your immigration law inquiries at [email protected]. © by Sostrin Immigration Lawyers, LLP. All rights reserved
© Copyright 2024 ExpyDoc
![Part 3: POL[ICE] IN MY HEAD - Undocumented and Uninsured](http://s1.expydoc.com/store/data/006442086_1-219beb06e97d0036c3a4131df502d172-250x500.png)
