Transcript Permanent Residence Overview for Student and Scholar Advisors

Permanent Residence Overview
for Academia
David Ware, Ware|Gasparian
[email protected]
800 537 0179
Offices Across the Gulf South and Seattle, WA
What is Permanent Residence?
• The right to live and work permanently in the US for any employer.
• A person becomes a permanent resident through adjustment of
status in the US or issuance of an immigrant visa outside the US. A
person generally must maintain lawful status in order to adjust in
the US.
• What can jeopardize permanent residence?
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Obtaining PR by fraud or misrepresentation;
Any absence of over six months from the US;
Abandonment of residence in the US;
Certain types of criminal conduct.
• Permanent residence is usually represented by a plastic card issued
by USCIS.
• Permanent residence is not citizenship: that comes
usually after a period of permanent residenc e (usually three
or five years).
Routes to Permanent Residence
• Employment
• Close Family
• Asylum
• Diversity Visa Lottery
• Special Programs (MAVNI)
• Spousal Abuse
• Trafficking, Crime Victims
• Removal Proceedings
Common Concepts
• Once the PR process begins, “immigrant intent”
may endanger nonimmigrants who must have a
residence abroad they have no intention of
abandoning (eg, F, J, TN, E 3, H1B1). Greatest
danger comes at point of visa issuance abroad or
entry to U.S.
• I 539 Change of Status Application also asks “Has
an immigrant visa been filed on your behalf or on
behalf of anyone included in this application?”
• So, generally best to be in a status allowing
“dual intent” when applying for PR (eg, H1B, O)
Common Concepts
• J’s and their dependants can be subject to the two year
home residence requirement because of the skills list,
government funding, or graduate medical training
• J’s who are subject must obtain a waiver of the
requirement before adjustment of status or an immigrant
visa can be granted.
• Waivers can be very difficult, especially if government
funding is involved.
• Four types: no objection, persecution, hardship, and
interested government agency.
• Lack of jobs, bad conditions back home generally not basis
for waiver.
Common Concepts
• Immigrant visas are limited for both family and
employment-based immigrants, except for
spouses, parents and unmarried children under
21 of US citizens.
• Each country is given same number of visas.
• This means that because of high worldwide
demand, waiting lists persist in most immigration
categories, especially China and India.
• The Department of State’s Visa Bulletin illustrates
this.
The “Priority Date”
• An EB immigrant’s “priority date” is the date on which the I
140 employer petition is filed.
• If a labor certification preceded the filing of the I 140, the
“priority date” will be the filing date of the labor
certification, once the employer petition is approved.
• The “priority date” appears on the upper left hand corner
of Form I 797, the approval notice of the petition.
• A priority date is “current” when the Visa Bulletin for the
current month shows that date is being processed or has
passed for the person’s category.
• Once the priority date is current, an immigrant visa can be
processed or adjustment of status granted.
The Visa Bulletin
• Currently for family based cases, there are
substantial backlogs for all categories except
spouses, parents, and minor unmarried children
of US citizens.
• For employment based cases, there are no
backlogs in the first preference; in second
preference, only China and India; and all third
preference cases are backlogged.
• Worldwide EB 2 will likely be backlogged in May.
• “Chargeability” always goes by place of birth or
spouse’s place of birth.
Employment Based Visa Bulletin –
May 2014
Employment- Based
All Chargeability Areas Except
Those Listed
China - mainland born
INDIA
MEXICO
PHILIPPINES
1st
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2nd
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15APR09
15NOV04
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3rd
01OCT12
01OCT12
01OCT03
01OCT12
01NOV07
Other Workers
01OCT12
01OCT12
01OCT03
01OCT12
01NOV07
4th
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C
C
C
C
Certain Religious
Workers
C
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5th
TARGETED
EMPLOYMENT
Areas/
Regional Centers
and Pilot
Programs
Employment Based Permanent
Residence Process and
Categories
General Steps in EB PR
• Labor Certification + Employer
Petition + Adjustment of Status,
OR
• If exempt from Labor Certification
= Employer Petition + Adjustment
of Status
EB Categories Relevant to
Academia
EB-1 (First Preference)
• Extraordinary ability or achievement
in sciences, arts, education, business,
or athletics; may self sponsor
• Outstanding professor/ researcher;
must be sponsored by employer
Extraordinary Ability
• “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.”
• One time internationally renowned award or
at least three of ten types of evidence.
• Extraordinary ability will be utilized in US.
• No labor certification or job offer required.
Extraordinary—Evidence
• “One time achievement (that is, a major,
internationally recognized award)”, OR three
of the following
• Lesser national prizes or one internationally
recognized prize in field.
• Membership in organizations requiring
outstanding achievements for membership
“as judged by recognized national or
international experts”
Extraordinary--Evidence
• Published material about the petitioner in
professional or major trade publications
• Judge of the work of others
• Original contributions to field “of major
significance”
• Publication of “scholarly” articles in
“professional or major trade publications or
other major media”
Extraordinary--Evidence
• Display of alien’s work at artistic exhibitions or
showcases.
• Leading or critical role for organizations that
have a distinguished reputation.
• High salary or other “significantly high
remuneration”.
• Commercial successes in the performing arts.
• OR, “comparable evidence”, if foregoing
categories “do not readily apply”.
Outstanding Professor /Researcher
• Of international renown in an “academic field”.
• Three years experience teaching and/or research.
– Dissertation experience can count if significant results.
• If for private research company must show employment
of three other full time researchers.
• Private company must have research accomplishments.
• If researcher, job must be “permanent”.
• If professor, must be tenure track.
• No labor certification required.
• Job offer need not be full time.
• Two of six types of evidence, as follows:
Outstanding--Evidence
• Major prizes or awards for outstanding
achievement
• Memberships in organizations requiring
outstanding achievements
• Professional publications by others
• Judge of the work of others
• Original contributions to field
• Scholarly publications
EB 1—Letters Are Vital!
• “Expert” letters are vital to success of EB 1
case.
• Criteria:
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International
From Important People in Field
From Government Officials
From People Who Don’t Know You
Substantive Content
Pros of EB 1
• Bypass labor certification process. DOL rule
requires employer to pay all costs associated
with labor certification.Especially
onerous/expensive “professional occupation”
process for researchers
• For highly focused and engaged scholar, can
be quickly prepared/filed in case of
emergency to protect work authorization (file
petition and AOS application concurrently or
file 365+days before H-1B expires)
• Can be good option for faculty if “special
handling” criteria not met
• EB-1 rarely backlogs
EB 1 Cons
–Extensive documentation required
–Subjective and “un-scientific”
adjudication process: “Kazarian”
test
• Difficult to predict chances of success accurately
–Requires high level of
involvement from scholar
–Can take months to put together if
letters difficult to obtain
EB-2 Advanced Degree Professionals & Aliens of
Exceptional Ability
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“Professional” with advanced degree
(requires labor certification)
Aliens of exceptional ability: ability
above that normally encountered
National interest waiver of job offer
and labor certification for professional
with advanced degree or alien of
exceptional ability: may self sponsor
Labor Certification
• Labor certification is required for most EB 2
immigrants
• Highly regulated and regimented “test” of the
labor market.
– Professional: for those positions for which a
bachelor’s or higher is normal; six sources of
recruitment
– “Special handling”: one print ad, posting; “best
qualified” standard.
“Professional” LC
• “Test of labor market requires 2 Sunday
newspaper ads, three other recruitment sources,
job order, in house posting.
• Very meticulous consideration of all applicants
based solely on wording of advertisements
• Must be no “US Worker” able, willing and
qualified to do job (“only qualified” standard)
• Wage offer must meet “prevailing” wage
• See www.flcdatacenter.com
“Special Handling” Labor Cert
• One print ad or 30 day online ad in “national
professional journal”
• In house posting
• Foreign national selected as best in pool
• Must be paid “prevailing” wage
• Teaching need not be full time, may consist of
various forms of “instruction”
Contents of Ad Very Important!
• Title or Title (e.g. Assistant Professor).
• Duties—should include or at least imply
teaching or instruction.
• Requirements and “Preferreds”: Candidate
must meet all requirements and preferred
qualifications at time of selection, not start
date, unless specified in ad.
National Interest Waiver
• Must be engaged in activity which will affect
directly or indirectly, entire US or large
portion of country.
• Area of activity must be of “intrinsic merit”.
• Scholar must possess ability in field “above
that normally encountered” in order to merit
NIW.
Exceptional Ability
• Must have full time, permanent job offer
• Must have degree of expertise in sciences, arts or
business “significantly above that normally
encountered”. Three of following:
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Academic degree
Ten years experience
Licence to practice profession
High salary
Memberships
Recognition for achievements, and/or
Other evidence of exceptional ability
Permanent Residence Myths
• There is no such thing as “sponsorship” for
permanent residence by a friend, someone with
“connections”, or distant relative.
• Congressmen can help with PR only by
sponsoring a “private bill” in the most extreme
situations where no legal remedy exists. Very
rare! Otherwise, only can help if case “stuck”.
• Other influential community members generally
cannot help.
• Adoption does not confer immigration benefit
unless completed while under age 16.
Permanent Residence Myths
• The mere accrual of time spent in the US
generally does not result in PR.
• Sponsorship by an employer or most family
members does not generally result in an
automatic right to remain in the US while
sponsorship is ongoing; person must have
independent nonimmigrant status, eg, F 1, H1B.
• Hardship, standing alone, is not a basis for PR.
• Country of origin is largely irrelevant in PR
process.
Permanent Residence Myths
• Two year home residence requirement never just
“disappears”, eg, diversity lottery winners.
• Research grantor, eg, NIH, usually has no interest in PR
process.
• “My friend” got a green card in two weeks (mysteriously).
Probably not!
• Fake marriages work; my friend did it! NOT!
• Marriage to a USC results in immediate citizenship or benefits.
• Having a baby in the US leads to PR (yes, in 21 years).
About the Speaker
David Ware has over 32 years experience in representing universities and
their students, faculty, and staff, as well as companies and individuals. His firm
is one of only a handful in the nation with a consistent focus on academia,
while also handling business, family, removal, asylum, and nationality cases. He
has for many years been selected to the Bar Register of Preeminent Lawyers,
and has been selected as one of the Best Lawyers in America since 2000. For
ten years, Mr. Ware has been selected as among the top immigration
attorneys in Louisiana by New Orleans Magazine, and in 2005 and 2008, City
Business Magazine selected him as one of the top 50 “Leaders in Law” in
Louisiana, the only immigration attorney so chosen. In 2008, he was elected to
Who’s Who International’s Top Corporate Immigration Attorneys – one of only
300 in the US and the only in Louisiana. Mr. Ware is a recognized leader
among immigration attorneys in practice areas of interest to universities, and
he currently serves as a mentor in these areas for other immigration attorneys
through AILA. He has been active in NAFSA since 1985. In addition to holding
several AILA and NAFSA leadership positions, he has received numerous
awards for outstanding service to NAFSA. He regularly serves as an expert
speaker and author for both AILA and NAFSA national and regional
conferences, and at the meetings of other academically-oriented organizations
such as NACUA and CUPA.
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