Immigrant Visa Options for PostDocs

Presented by: David H. Nachman, Esq.

andVictoria Donoghue, Esq.

OverviewOverview

Path to Permanent Residence Path to Permanent Residence for Researchers & Post Docsfor Researchers & Post Docs

F Visas (students)F Visas (students) J Visas (research scholars)J Visas (research scholars) H-1B Visas (employees)H-1B Visas (employees) Employment Based Permanent Employment Based Permanent

ResidenceResidence

THE J-1 VISATHE J-1 VISA

Exchange VisitorsExchange Visitors- - Students Students - Research ScholarsResearch Scholars

J -1 Sponsors

Every exchange alien must enter the US to participate in a designated Exchange-Visitor program

Categories of Exchange-Visitor programs:– Students/student interns– Short-term scholars– Trainees/interns– Professors– Research Scholars– Specialists– Other

Period of stayPeriod of stay

Post-doctoral training- 18 months Post-doctoral training- 18 months College and university professors College and university professors

and research scholars- 5 yrs from and research scholars- 5 yrs from the program begin date in SEVISthe program begin date in SEVIS

J Visas and 2 Year J Visas and 2 Year Foreign Residency Foreign Residency RequirementRequirement Ineligible for an H visa or permanent Ineligible for an H visa or permanent

residence until after he has spent 2 yrs residence until after he has spent 2 yrs in home countryin home country

Who is subject to this?Who is subject to this?- skills list- skills list- US or home government funding - US or home government funding - Exchange visitors who come to - Exchange visitors who come to

the US to received graduate medical the US to received graduate medical education or trainingeducation or training

Waivers of 2 Year Waivers of 2 Year Home Residency Home Residency requirementrequirement Interested governmental agency Interested governmental agency

waiverwaiver Exceptional hardship waiverExceptional hardship waiver ““no objection” waiverno objection” waiver

Advisable to seek an advisory Advisable to seek an advisory opinion from the DOL before opinion from the DOL before applying for a waiverapplying for a waiver

H-1B VisasH-1B Visas

The position must be in a specialty The position must be in a specialty occupation:occupation:

- highly specialized knowledge; - highly specialized knowledge; ANDAND

- attainment of a BA or higher in - attainment of a BA or higher in the specialty occupationthe specialty occupation

Period of StayPeriod of Stay

Two three year periods of stayTwo three year periods of stay Extensions only in some cases Extensions only in some cases

where a permanent residence where a permanent residence petition is pendingpetition is pending

Two Important H-1B Two Important H-1B ConceptsConcepts

Concurrent H-1Bs permittedConcurrent H-1Bs permitted H-1Bs are portableH-1Bs are portable

O Visas

Aliens of extraordinary ability in the sciences, arts, education, business, or athletics

Must intend to work in their area of extraordinary ability or achievement

No numerical cap

Duration of Stay

An initial period of 3 years is permitted

Extensions of stay granted in increments of up to 1 year

Employment Based Employment Based Permanent ResidencePermanent Residence

Requirements:Requirements: Full-time employmentFull-time employment Attainment of DOL Labor Attainment of DOL Labor

CertificationCertification Ability to payAbility to pay Availability of Immigrant visa Availability of Immigrant visa

numbernumber

11stst Preference (EB1)- Preference (EB1)- NO labor cert requiredNO labor cert required

Outstanding Professors & Outstanding Professors & ResearchersResearchers

Aliens of Extraordinary AbilityAliens of Extraordinary Ability- Top of their field- Top of their field

EB-1 Extraordinary Ability Extraordinary ability in the field of

Science, education, business or athletics must demonstrate sustained national or

international acclaim and recognition by providing evidence of:

– Receipt of a major, internationally recognized award, such as the Nobel Prize; OR

– At least three of the following: receipt of lesser nationally or internationally

recognized prizes or awards for excellence in the field;

membership in associations which require outstanding achievements of their members

Extraordinary Ability (Con’t) Published material about the alien in professional

publications relating to the alien’s work; Evidence of the alien’s original scientific, scholarly,

artistic, athletic or business-related contribution of major significance;

Evidence of the alien’s authorship of scholarly articles; Evidence that the alien has performed in a critical role

for organizations 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.

Outstanding Researchers and Professors

Teaching positions must be tenured or tenure track appointments, while research positions must be permanent.

Universities or other institutions of higher learning can offer teaching or research positions; private employers can offer only research positions, and must demonstrate that they employ at least three full-time researchers.

Outstanding Researchers and Professors (Cont’d) Petitions in this category needs evidence any two of the

following six groups:

1. Receipt of major prizes or awards in the academic field.

2. Membership in associations which require outstanding achievements of their members.

3. Published material in professional publications written by others about the beneficiary’s work in the academic field.

4. Participation as a judge of the work of others in the field.

5. Original scientific or scholarly research contributions.

6. Authorship of scholarly books or articles in the academic field.

22ndnd Preference (EB2)- Preference (EB2)- Labor Cert usually Labor Cert usually requiredrequired• Schedule A, Group IISchedule A, Group II• National Interest Waiver National Interest Waiver • PERM Labor Certification PERM Labor Certification

ApplicationApplication• Advanced Degree ProfessionalAdvanced Degree Professional

- Job requires a degree beyond - Job requires a degree beyond a BAa BA

National Interest Waiver (NIW) EB2 classification but no labor cert

required Legal Test:

– Substantial Intrinsic Merit- the work substantially benefits the national economy, cultural or educational interests, or welfare of the US

– Benefit is national in scope– Benefit derived from the alien’s participation in

the field considerably outweighs the inherent national interest in protecting US workers (looks at alien’s standing in the field)

33rdrd Preference- Labor Preference- Labor Certification Required Certification Required Must have a BA - a professional not Must have a BA - a professional not

qualifying for EB2qualifying for EB2 Must possess at least 2 years of Must possess at least 2 years of

experience. experience. Must prove there are no US Workers Must prove there are no US Workers

who can take the job. Special PERM who can take the job. Special PERM Requirements for Professors/Teachers. Requirements for Professors/Teachers.

Questions?

Please feel free to contact our office for more information at:

info@visaserve.com

201-670-0006 ext. 100

http://www.visaserve.com