LEAVY, FRANK, & DELANEY LLC 3 Bethesda Metro Center, Suite

LEAVY, FRANK, & DELANEY LLC 3 Bethesda Metro Center, Suite 505 Bethesda, Maryland 20814 (P) 301.656.2102 (F) 301.656.4728 [email protected] www.leavyfrank.com Immigration Presentation for International Postdocs, Research Scientists and University Professors

News and Important Info Backlogs for India and China H-Visa availability Bi-Specialization I-140 timeline updates Premium Processing Update Current Bills in Congress

VISAS Two Types of Visas: Non-Immigrant Visas Immigrant Visas (Employment, Family)

Non-Immigrant Visas Visas are lettered (A, B, C.) Each visa has its own requirements, timelines, availability Your I-94 indicates how long you can stay in the US Status can be changed and/or extended by USCIS Visa stamp is for re-entry to the US after travel Visa stamp is not determinative of status

Immigrant Visas Two Main Categories: Family Based Spouse, Parent, Child, Sibling Employment Based Through Employer (OR, PERM) Self-Sponsored (EA, NIW)

NON-IMMIGRANT VISAS

J-Visas Most cases 5 year max - maybe 7 years 212(e) - 2 year home residency requirement Subject if you receive money from U.S. government, your government, or international organization OR on Skills list OR Graduate Medical Education

212(e) Waivers Four types of Waivers: No-Objection: statement from your home-country AND organization if receive US gov’t funding or Int’l org. funding IGA: Employer to sponsor you through an interested govt agency Hardship to US Citizen Spouse or Child - Must be extreme (economic hardship or family separation not enough) Persecution: face persecution if sent back to home country

H-1b Visa Requirements: You must have a bachelors degree or higher and the position must require someone with a bachelors degree in a specific or related field (that matches your degree) Cap Exemptions: University, Gov’t Research Organization, Related Non-Profit Also - Working for private company BUT physically housed at exempt org. Have H-1b at exempt organization and, while maintaining that H, receive new part time H at a for profit company H-1b is dual intent and can be maintained up until the day you get GC Otherwise need alternatives: O-Visa, TN VISA, E-Visa

H-Visa Availability Only 65,000 per year (plus 20,000 for Master’s Cap). For this fiscal year (Oct. 1, 2010 through Sept. 30, 2011) there are approximately 46,800 and 17,200 Masters Cap cases that have been approved or are still pending with USCIS, leaving 18,200 regular and 2,800 Masters Cap visa left. Next year able to apply on April 1, 2011 for a New H-Visa to start on October 1, 2011 The above applies to CAP SUBJECT H-VISAS ONLY

O-Visa The O-1 visa is a temporary work visa available to those foreign nationals who have "extraordinary ability in the sciences, arts, education, business or athletics" which "have been demonstrated by sustained national or international acclaim." The person entering the US must be coming to work in their field of ability, but the position need not require the services of a person of extraordinary ability. As with the H-Visa, a scientist on the O-Visa is being sponsored by the employer. Unlike the H-Visa, there is no maximum amount of time a person can remain on an O-Visa, nor is there a cap issue. A Waiver is not required to obtain O-Visa status if the applicant has J-Visa with a two year home residence requirement The O Visa is Dual-Intent

TN Visa TN Visa is available to Canadian and Mexican citizens for certain professional positions Initial TN can be requested for 3 years. Can be subsequently renewed for three years Not Dual intent

E-Visa To qualify for an E-2 investor visa, the applicant must "develop and direct operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital." As a foreign citizen, you may be issued an E-2 nonimmigrant visa if all of the following requirements are met: You are from a country which is eligible for an E-2 Visa and at least 50% of the company stock must be owned by you; You will invest or have invested substantial capital which is at risk, meaning subject to potential loss if the business does not succeed, in a bona fide enterprise in the United States.

IMMIGRANT VISAS

Employment Based IV 140,000 total Immigrant Visas Divided into five categories: EB-1: Extraordinary Ability, Outstanding Researcher, Multi-National Executive (28.6% of total) EB-2: National Interest Waiver, Advanced Degree or Exceptional Ability PERM (28.6%) EB-3: Professional PERM (28.6%) EB-4: Special Immigrants (7.1%) EB-5: Employment Creation (7.1%)

Bi-Specialization I-140’s: East coast and South - Texas, West Coast and Mid-West - Nebraska H-1b and other Temp. Visas East Coast and South - Vermont West Coast and Mid-West - California All I-765 and I-131 renewals filed based upon address of applicant, not based upon where application was originally filed New lockboxes and other filing addresses. Be careful if filing individual applications

I-140 Timelines May only file I-140 in two places: Texas Service Center – 4 months Nebraska Service Center – 4 months Generally our experience is that these cases are taking slightly longer than this If not, after pass timeline by 60 days can contact USCIS to check on case

Premium Processing Still Available for I-129’s (H-1B, O-1) Now available for CERTAIN I-140’s EB-1A, Extraordinary Ability EB-1B, Outstanding Professor/Researcher EB-2 (Not National Interest Waiver) EB-3 (affected by Immigrant Visa backlogs)

Extraordinary Ability A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence or a one-time achievement (that is, a major, international recognized award), OR at least three of the following: Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or field Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought; Evidence of the alien’s participation, either individually or on a panel, as a judge of work of others in the same or an allied field of specification for which classification is sought; Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

Extraordinary Con’t Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media; Evidence of the display of the alien’s work in the field at exhibitions; Evidence that the alien has performed in a leading or critical role for organizations or establishments 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; or Evidence of commercial successes in the performing arts. If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. NO OFFER OF EMPLOYMENT IS NEEDED, however, the petition must be accompanied by evidence that the alien is coming to the United States to continue work in the area of expertise.

National Interest Waiver Preliminary Requirement - Must have an Advanced Degree or Exceptional Ability Advanced Degree - Any degree above bachelor’s degree (or a bachelor’s degree plus 5 years experience). Exceptional Ability - list of criteria show that you meet 3 NIW Standards: Show that your work has Substantial Intrinsic Merit Show that the benefit of work is national in scope Show that you would serve the National Interst to a substantially greater degree than a U.S. Citizen with minimum qualifications

Employment Sponsored Outstanding Researcher (EB-1): No Advertising 6 criteria, show you meet 2, 3 years experience Employer must show at least 3 full time employees and Position is “Permanent” (includes tenure, tenure track, at-will, etc.) PERM Employer advertises the position to see if any qualified US Citizen or PR apply File with DOL. Upon certification, then file with USCIS

FINALIZING YOUR GREEN CARD

Where Can you file? In the United States: File I-485, Adjustment of Status Overseas: Sent to NVC, then US Consulate in your Home Country

What Does Retrogression Mean? Date must be current at time of filing AND at time of approval Currently, if you are from India or China you CANNOT file an I-485 based upon your EB2. If you file an I-485 based upon the EB-1 and the EB-1 is denied, the I485 will be denied even if the EB-2 is still pending.

RetrogressionBacklogs EB-1 (Extraordinary Ability, Outstanding Professor or Researcher): Visa numbers are current for everyone and are expected to remain so for both countries. EB-2 (National Interest Waiver, PERM): China backlogged to June 8, 2006 India backlogged to May 8, 2006 EB-3 (Professional PERM): All countries backlogged 4/22/05 China 12/08/03 India 1/22/02 Mexico 7/1/02

Congressional Bills Many potential bills. Unlikely to see Comprehensive Immigration Reform (CIR) this year. Potential for “Piecemeal” Reform Most likely changes: Recapture unused Family and Employment visas from previous years Remove per country limits for Employment based Immigrant Visas