Immigration for Professors and Researchers

Transcription

1 Immigration for Professors and Researchers Debra J.. Dowd, Esq. LelairRyan, A Professional orporation 2012 LelairRyan, A Professional orporation

2 Today s presenter and some notes... Debra Dowd Richmond Welcome. With the high number of attendees, please note all lines have been muted for the event. Q&A can be posted at the right of your screen, but any questions (time permitting) will be addressed at the end of the event. If using Q&A please send to both the host and the presenter. You can send direct questions (including request for copy of slides) to seminars@leclairryan.com with Immigration in the subject for reply after the event. We have also applied for HRI credit please send an to seminars@leclairryan.com if you are interested in the ertificate of Attendance. Thank you.

3 The New olossus -Emma Lazarus Not like the brazen giant of Greek fame, With conquering limbs astride from land to land; Here at our sea-washed, sunset gates shall stand A mighty woman with a torch, whose flame Is the imprisoned lightning, and her name Mother of Exiles. From her beacon-hand Glows world-wide welcome; her mild eyes command The air-bridged harbor that twin cities frame. Keep, ancient lands, your storied pomp! cries she With silent lips. Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me. I lift my lamp beside the golden door!

4 Goals of US Immigration System Encourage Investment Best and Brightest Arts, Sciences, Business and Athletics Family Unity Workforce Shortages

5 Immigrants v. Non-Immigrants Green ard Permanent Family Based Petitions Employment Based Petitions No limitation on activities, length of stay Alphabet Soup Temporary Tourism, Education & Employment Based Limitations on activities, length of stay

6 IMMIGRATION SPONSORSHIP

7 Government Regulation Department of Homeland Security US itizenship & Immigration Services US Immigration & ustoms Enforcement Directorate of Border & Transportation Security Department of Labor State Workforce Agencies Department of State National Visa enter onsular Posts Department of Justice Executive Office of Immigration Review

8 NONIMMIGRANT (TEMPORARY) VISAS

9 Non-Immigrant Education Based Visas Education Visas F-1 Academic Student M-1 Vocational Student J-1 Student ategory

10 Non-Immigrant Employment-Based Visas Employer- Specific Visas ommonly Used H-1B Visa O-1 Visa TN Visa J-1 Visa E-1/2 Visa L-1A/B Visa

11 IMMIGRANT (PERMANENT) EMPLOYMENT-BASED VISAS

12 The Roads to Green ard 1. Family-Based Petition 2. Employment-Based Petition 3. Self-Petition 4. Asylum/Refugee 5. Special Legislation

13 Family-Based Preferences Immediate Relatives Spouses, minor children, and parents of US First Preference Unmarried sons and daughters of US Second Preference Spouses, unmarried sons/daughters of LPR Third Preference Married sons and daughters of US Fourth Preference Brothers and sisters of US

14 Family-Based Petition PETITION File with IS Filed / Approved Petition conveys NO immigration benefits Qualifying Relationships: US may sponsor Mother, Father, Spouse, Minor and Adult hild (including married), Siblings LPR may sponsor Spouse, Unmarried Minor and Adult hildren Processing Time: 6 months to 1 year ADJUSTMENT OF STATUS ONSULAR PROESSING File with IS Principal Applicant and Derivative Family members each file their own AOS package. Applicant is in a period of authorized stay once AOS Application is accepted for processing and remains in a period of authorized stay while application remains in process May only file when case is current (may have a gap of years between the Petition and AOS stages) Government will only process when case is current Work Authorization Travel Permission Processing Time: 6 months to 1 year

15 Visa Bulletin December 2012 Family All hargeability Areas Except Those Listed HINAmainland born INDIA MEXIO PHILIPPINES F1 01DE05 01DE05 01DE05 01JUL93 08OT97 F2A 22AUG10 22AUG10 22AUG10 01AUG10 22AUG10 F2B 15NAV04 15NAV04 15NOV04 01NOV92 22MAR02 F3 08JUN02 08JUN02 08JUN02 01MAR93 01AUG92 F4 01APR01 01APR01 01APR01 22JUL96 22MAR89

16 Employment-Based Preferences EB-1 Priority Workers Extraordinary Ability Outstanding Professors and Researchers Multinational Executive and Managers EB-2 Advanced Degree or Exceptional Ability/NIW Professionals holding Advanced Degrees Exceptional Ability in the sciences, arts, business, or athletics EB-3 Professionals, Skilled Workers & Other Workers EB-4 Special Immigrants EB-5 Employment reation (Investment)

17 Employment-Based IV Process Labor ertification Test US Market to ensure that there are no qualified US Workers ready, willing, and able to accept the job position. We work with the Employer and target Employee to identify in detail the target job duties and requirements and the target Employee s education, work experience, skills and abilities. We then prepare an appropriate Application, advertise the job, counsel the Employer through the recruitment efforts, and finalize the process. Once final, we submit the case to the U.S. Department of Labor. Petition A Petition Package is filed with the USIS. The USIS will review the Petition Package to ensure: The Employer has the financial ability to pay the offered wage at the time the case commenced (filing of labor certification). The Employee has the skills, qualifications, and experience necessary to perform the job. W A I T I N G P E R I O D Adjustment of Status/onsular An Application Package is filed with the USIS. At this stage, the Applicant may also apply for employment authorization and travel permission. The principal Applicant s spouse and children may also seek legal permanent resident status, employment authorization and travel permission. Note: travel permission is not recommended in all cases.

18 Visa Bulletin December 2012 Targeted Employment Areas/ Regional enters 5th ertain Religious Workers 4th 15AUG06 22DE06 01NOV02 01JUL03 22DE06 Other Workers 15AUG06 22DE06 01NOV02 01JUL06 22DE06 3rd 01SEP04 22OT07 2nd 1st PHILIPPINES MEXIO INDIA HINAmainland born All hargeability Areas Except Those Listed Employment- Based

19 Alien Labor ertification The purpose of the alien employment certification process is to protect the U.S. workforce Will be issued only if the DOL determines there is an insufficient supply of available, willing and qualified U.S. Workers for the particular job involved

20 Required Recruitment For PERM For all job positions other than Special Handling Internal posting for ten consecutive business days Place job order with state employment agency for 30 days Use of any and all in-house media (intranet, internal postings, etc.) Two print advertisements (Sundays) in the newspaper of general circulation for area of employment.

21 Additional Required Recruitment If the job is for a professional job (one which requires at least a bachelor s degree or higher), must undertake three additional recruitment steps from a list of ten approved by the DOL: Job fairs Employer s Website Job search website On-campus recruiting Trade/professional organization Employee referral program ampus placement office Local or ethnic newspapers Private employment firms Radio/television ads

22 Special Handling Rules for ollege and University Teachers Teachers: ollege and university teachers have the benefit of special handling rules. Under the special handling rules, teachers enjoy a more lenient selection standard than all other occupations ( best qualified versus no qualified U.S. workers ). The case must be filed within 18 months from the date the individual was selected. Generally you may consider the date of the offer letter as the selection date. Schools should consider a notice provision on the 18 month rule. The process does require one national print or on-line advertisement.

23 Required Recruitment For PERM Special Handling ases ases involving post-secondary teachers are considered Special Handling cases. The recruitment required for Special Handling cases is as follows: Internal posting for ten consecutive business days A single print or on-line ad in a national journal or publication relevant to the field

24 an I Avoid Labor ertification? Only a small number of employment-based immigration cases can avoid the labor certification requirement: Extraordinary Ability Petition Outstanding Researcher/Professor Petition Multi-National Manager/Executive National Interest Waiver Petition

25 Extraordinary Ability Self-Petition No Job Offer/Labor ertification Required Extraordinary Ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor

26 Extraordinary Ability Proof Sustained national or international acclaim and evidence that his or her achievements have been recognized in the field of expertise. Major internationally recognized award OR At least three other items

27 Extraordinary Ability Other Proof Lesser nationally or internationally recognized prizes/awards Membership in associations which require outstanding achievements Published material about the applicant Applicant s participation as the judge of others Original scientific, scholarly, etc., contributions of major significance Authorship of scholarly articles Display of work Performed in leading or critical roles in organizations with distinguished reputation High salary in relation to others in the field ommercial successes Other comparable evidence

28 Outstanding Researcher/Professor Employer Sponsored Job Offer Required/No Labor ertification Permanent, in reference to a research position, means either: (1) tenured; (2) tenure-track; or (3) for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment, unless there is good cause for termination

29 Outstanding ontinued Requires evidence that the R/P is recognized internationally as outstanding in the academic field At least three years experience in teaching or research Evidence shall consist of at least two of the following: Receipt of major prizes or awards Membership in associations which require outstanding achievements Published materials about the researcher Researcher sits as the judge of others Original scientific or scholarly research contributions to the academic field Authorship of scholarly books or articles

30 Multi-National Manager/Executive Employee must have worked for foreign affiliate for at least one year in managerial or executive position Employee must be working for the U.S. affiliate in a managerial or executive position

31 Advanced Degree/Exceptional Ability Generally requires job offer and labor certification Becomes a Self-Petition if filed as a National Interest Waiver case Master s Degree = Advanced Degree Default to Advanced Degree (v. Exceptional Ability) Be very careful with 3 year Bachelor Degrees!

32 National Interest Waiver Does the applicant seek employment in an area of substantial intrinsic merit? Will the proposed benefit be national in scope? Will the significant benefit derived from the individual s participation in the field of endeavor considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process?

33 BEYOND GREEN ARD: PRESERVING STATUS AND U.S. ITIZENSHIP

34 Preserving Resident Status Once in resident status, a resident must be proactive about preserving the status. Resident status can be lost or abandoned by certain actions or inactions. For example, a resident can be removed from the United Status following conviction of certain crimes. For example, resident status can be abandoned if the resident remains outside the U.S. for too long and/or otherwise fails to maintain indicia of resident status. e.g. the resident takes a research position with a research firm abroad an remains out of the U.S. for 18 months without taking any proactive steps to preserve status. Generally, a single trip outside the U.S. of 1 year or more creates a presumption of abandonment.

35 U.S. itizenship From a timing perspective a resident, who gained resident status through employment, will be eligible to apply for citizenship once a resident for five years if: During the five year period before filing, the resident had no single trip outside the U.S. of 180 days or more; AND During the five year period before filing, the resident spent at least ½ of his or her time physically in the U.S. There are other eligibility requirements and restrictions for citizenship, e.g. good moral character, lack of certain criminal convictions, etc.

36 Debra J.. Dowd Direct Mobile debradowd on Twitter Debra J Dowd on Facebook

37 Everywhere immigrants have enriched and strengthened the fabric of American life. -John F. Kennedy

38 Disclaimer This presentation provides general information and is not legal advice and should not be used or taken as legal advice for specific situations. You should consult legal counsel before taking any action or making any decisions concerning the matters in this presentation. This communication does not create an attorney-client relationship between LelairRyan, A Professional orporation and the recipient LelairRyan, A Professional orporation