Permanent Residence Overview for Academia

David Ware, Ware|Gaspariandware@david-ware.com

800 537 0179Offices 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?– 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 C C C C C

2nd C 15APR09 15NOV04 C C

3rd 01OCT12 01OCT12 01OCT03 01OCT12 01NOV07

Other Workers 01OCT12 01OCT12 01OCT03 01OCT12 01NOV07

4th C C C C C

Certain Religious Workers

C C C C C

5thTARGETED

EMPLOYMENT Areas/

Regional Centersand Pilot Programs

C C C C C

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:– 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

• “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:– 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 SpeakerDavid 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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