Extraordinary, Outstanding, or Merely Exceptional:

The State of the Art for International Scholars

William A. StockRegion VIII Regulatory Ombudsman Klasko, Rulon, Stock & Seltzer, LLP

William A. Stock, Esq.

• Bill Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 15 years.

• Bill is featured in the Chambers Global Guide, Best Lawyers in America, and other guides to prominent attorneys. He is a leader in the American Immigration Lawyers Association on a national level, and in 2000 he received AILA’s Joseph Minsky Award, given to the lawyer under age 35 who has made the most outstanding contributions to the field of immigration law.

• Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and currently is an Adjunct Faculty Member at Villanova University School of Law.

Permanent Residency Options• Employment Based Preferences– First Preference (EB-1)• Extraordinary Ability, Outstanding Researcher,

Multinational Executive

– Second Preference (EB-2)• Nat’l Interest Waivers, Advanced Degreed Professionals,

Bachelors plus 5 years exp.

– Third Preference (EB-3)• Skilled Worker (2+ years experience), Bachelor’s Degree

Permanent Residency Quotas

• Annual Limit on Permanent Residency• Per Country Limit – 7%• Allocated by:– Priority Date – place in line– Preference Category

Permanent Residency Quotas, Where Are We Now?

Visa Bulletin for March 2010

 

All Chargeability Areas Except Those Listed

CHINA-mainland born

INDIA MEXICOPHILIPP-INES

EmploymentBased

         

1st C C C C C

2nd C 08JUL05 01FEB05  C C

3rd 15DEC02 15DEC02 01JUL01 01JUL02 15DEC02

5th C C C C C

Permanent Residency Quotas,Where are We Now?

• “Oversubscribed” versus “Available”– Available if:• Visa Bulletin indicates “C” = current• Priority date earlier than posted date

– Best Case Scenario for FY2010• EB-2

– China – October 2005– India – February/March 2005

• EB-1 – expected to remain current

Employment Based (EB) Permanent Residency

• Employer-sponsored or self-sponsored• Extraordinary/National Interest/Exceptional• Multiple petitions• Multi-Step Process• Non-Immigrant Status?

Employment Based (EB) Permanent Residency: Self-Petitions

Extraordinary Ability/EB-1 (I-140, filing fee $475)

– “One of a Few at the Top”– Factors Considered in Initial Evaluation• 1st authored articles/impact factors• Citations to 1st authored work• Conference Presentations• Peer Review/Manuscript Review Work• References from independent Experts• Documenting Regulatory Criteria

– Preparation/Processing Times

I-140 Self-Petitions

National Interest Waiver/EB-2 (I-140, filing fee $475)

– Three Prong Test• Field is of Substantial Intrinsic Merit• National Impact of Your Contributions• You Are “Substantially Better” Than Your Peers

– Preparation/Processing Times

(cont’d)

Employment Based: Employer Sponsored

Outstanding Researcher/EB-1 (I-140, filing fee $475)

– Similar to Extraordinary Ability– At least 3 Years experience– Permanent job offer– Qualified Employers:• Academic Institutions• Industry

– at least 3 FT researchers– Recognition in field

Permanent Resident StatusAdjustment of Status (I-485)

• Timing– Preference categories/quotas– Priority dates– Processing times

• Concurrent filing (I-140/I-485)• I-485 filing fee $1010, includes:– Employment authorization (I-765)– Advance parole (I-131)

EB-1/NIW Misconceptions

1) Every postdoc who thinks s/he has extraordinary ability does. Every postdoc who thinks s/he doesn’t, doesn’t.

2) A client who presents herself to you either is or isn’t extraordinary.

3) It is not necessary for an advisor to really understand the field and what the alien does in order to prepare EB-1 or national interest waiver.

4) A biochemist must prove he is “one of a few at the top” of his biochemistry peers.

5) It is necessary to provide at least three categories of documents in order to qualify for O-1 or EB-1 (alternative myth: presenting three categories of documents is sufficient to qualify for O-1 or EB-1).

6) It is important to choose between extraordinary ability, outstanding researcher and national interest waiver.

EB-1/NIW Misconceptions (cont’d)

7) There is no need for EB-1 because PERM is so quick/it is always better to do EB-1 than to do PERM.

8) It is critical to maximize the number of reference letters.

9) Reference letters should include lots of information about the referee.

EB-1/NIW Misconceptions(cont’d)

10) It is important that the referee be intimately familiar with the alien.

11) The more detailed and technical the reference letters, the better.

12) USCIS adjudicators read everything in the filed package.

EB-1/NIW Misconceptions(cont’d)

13) Examiners do not read cover letters.

14) It is necessary to have a reputation in the United States in order to qualify for EB-1.

15) EB-1s and O-1s have to be filed for aliens in professional positions.

EB-1/NIW Misconceptions(cont’d)

16) An extraordinary ability alien must have an international reputation; an outstanding researcher can have a purely domestic reputation.

17) A student, trainee, medical resident or postdoc cannot qualify for EB 1.‑

18) A postdoc must have a large number of publications to qualify for EB 1 (opposite myth: sufficient publications ‑make reference letters much less important).

EB-1/NIW Misconceptions(cont’d)

19) An outstanding researcher must have at least three years of post-degree experience.

20) An alien’s field of expertise either is or isn’t in the national interest.

EB-1/NIW Misconceptions(cont’d)

21) Good reference letters are sufficient for a national interest waiver case; it is not necessary to produce independent evidence of the national interest.

22) A job must require a masters degree or a bachelor’s degree plus five years experience in order for a labor certification to qualify for EB-2.

23) An alien must have a national or international reputation in order to be “exceptional.”

EB-1/NIW Misconceptions(cont’d)

Questions?

For Further Information

William A. Stock, Esq.Klasko, Rulon, Stock & Seltzer, LLP

E-mail: wstock@klaskolaw.com

Telephone: 215-825-8600 (Philadelphia)

212-796-8840 (New York)

Websites: www.klaskolaw.com www.worsite-compliance.com www.eb5immigration.com

Blog: http://blog.klaskolaw.com