Caltech Self-Sponsored
Green Card Immigration
Workshop
Bernard P. Wolfsdorf, Esq.
Jessica L. Marks, Esq.
Wolfsdorf Rosenthal LLP
www.wolfsdorf.com
© 2014 Wolfsdorf Rosenthal LLP (all rights reserved)
This presentation does not constitute direct legal advice and is for informational purposes only. The
information provided should never replace informed counsel when specific immigration-related guidance is
needed. The contents of this document are proprietary and may not be duplicated or shared without express
permission from Wolfsdorf Immigration.
Moving from Academic Life to Private
Industry: The H-1B Quota
• Fiscal Year (FY) October 1 to September 30
• H-1B Quota/Cap – private industry
employers
– 65,000 per FY
• 5,400 Singapore
• 1,400 Chile
– 20,000 for U.S. graduates with Master’s or
higher degree
H-1B Professional Occupation
Visa – the Basics
•
•
•
•
Employer-specific
Part-time or full-time
Concurrent H-1B for multiple employers
6 year maximum; granted in 3 year
increments
• At-will employment
H-1B Portability
• Portability allows commencement of new
job upon “filing” of new petition – no need
to wait for approval.
• Cap-exempt H-1B to cap-subject employer?
(i.e. university to private industry)
– Subject to H-1B cap (never been counted)
– Timing issue – limited situations
H-1B Portability (cont.)
• Private industry: can transfer H-1B to new
employer at any time.
• Will not be subject to H-1B cap again for
six years (already counted as part of the H1B cap).
J-1 Subject?
• Cannot apply for H-1B or green card until home for two
years or receive waiver.
• Waiver options:
– No-objection statement from home government
– Interested Government Agency: IGA
– Claim to Persecution if you return to your home country
– Claim of exceptional hardship to U.S. citizen or
permanent resident spouse/child if required to return to
home country
– Request from state public health department (or
equivalent) (only applies to foreign medical graduates)
The Permanent Residence
Process: Two Stages
1. Immigrant Visa
- Forms the basis for immigration to the U.S.
2. Adjustment of status or consular processing
- Actual immigration
- Quota backlogs occur prior to this stage
Two Stages (continued)
• Step 1: I-140 Immigrant visa petition
• Step 2: I-485 Application to Adjust Status to Lawful Permanent
Resident (AOS). Within 60-90 days of filing:
- Employment Authorization Document (EAD)
- Advance Parole travel document
• I-140 and I-485 can be filed concurrently for certain employmentbased categories.
• Can premium process (expedite) certain I-140 petitions.
• I-485 cannot be premium processed (although there are some
limited expedited criteria).
Employment-Based, First Preference
Immigrant Visa (EB-1)
Foreign Nationals of Extraordinary Ability
– Reserved for recipients of a one-time achievement
(major, international award) or at least 3 out of 10
criteria evidencing that the applicant has risen to the
very top of the field. Important to define your field at
the very outset of your case.
– Self-petition or employer-sponsored.
– If already granted an O-1, may qualify for an EB-1.
Similar criteria, but EB-1 standard much higher in
practice.
The First Step: EB-1 Criteria
• Lesser nationally or internationally recognized prizes or awards
for excellence in the field;
• Membership in associations that require outstanding
achievements as judged by recognized experts in the field;
• Published material about the applicant in professional or major
trade publications or other major media about his or her work in
the field;
• Participation as a judge of the work of others in the same or an
allied field;
• Original scientific contributions of major significance to the
field;
EB-1 Criteria (cont.)
• Authorship of scholarly articles in the field, published in
professional or major trade publications or other major media;
• Display of the applicant’s work in the field at artistic exhibitions
or showcases;
• Performance in a leading or critical role for organizations or
establishments with distinguished reputations;
• Commanding a high salary or other significantly high
remuneration for services in relation to others in the field; and
• Evidence of commercial success in the performing arts.
Comparable Evidence
• When the criteria do not readily apply to the applicant’s
occupation, comparable evidence of extraordinary ability may be
submitted to establish eligibility.
• Several of the criteria, e.g. evidence of success in the performing
arts, do not apply to the sciences, so ALWAYS argue comparable
evidence. For example, scientists cannot argue display of work in
artistic showcases, but comparable recognition for achievements
would be presentation of work at prestigious national and
international conferences in the field.
Invited and oral
presentations are particularly persuasive evidence.
The Second Step: The Final
Merits Determination
• Incredibly subjective – predicting outcomes in EB-11
adjudications is extremely difficult. An applicant may satisfy 3 or
more criteria but still be denied at this stage.
• Whatever the evidence submitted to satisfy at least 3 of the 10
criteria, it must be consistent with the claim that you have
enjoyed sustained national or international acclaim and
recognition for achievements.
For example, reviewing 1
manuscript, authoring 1 article, and receiving 1 lesser known
award over the course of an entire career may satisfy the
minimum number of criteria without demonstrating eligibility for
extraordinary ability classification.
Final Merits Determination Issues
Specific to Researchers
• The quality (rank and impact factor) of the journals in which you
have published scholarly articles is important.
• The number of articles and the period over which they were
published is relevant – acclaim must be “sustained.”
• This is also true for review work – the more articles you have been
asked to review, the more likely it is you will be seen as having
distinguished yourself within the field. You can always volunteer
to be a peer reviewer, but a handful of reviews will over a short
period of time is likely not get you past the Final Merits
Determination.
• Student awards and scholarships are generally discounted
completely. Similarly, grants are considered funding for future
work rather than recognition for prior achievements.
Final Merits Determination Issues (cont.)
• How to establish critical or lead role:
– The role must be critical or leading within the organization or
establishment, not merely a single project. However, think of
arguments to support the position that a project or projects are
critical to the mission of the institution and thus how your role
satisfies this criterion.
• Choose your referees carefully!
– Reference letters from top scientists in your field are important
to both the critical/lead role and original contributions of major
significance criteria. The more acclaimed and accomplished
your referee, however, the less extraordinary you may appear to
the adjudicating officer.
EB-2 National Interest Waiver
(NIW)
• Can self-petition (no employer required)
• Three prong test:
– Work has substantial intrinsic merit
– Work is national in scope
– The national interest would be adversely
affected if the labor certification requirement
were not waived.
NIW (continued)
• How to satisfy the third prong: must demonstrate that you have had
some impact on the field as a whole.
• Arguing that the work is so important that any person performing it
should receive an NIW will not be successful – you must establish that
you have had “some degree of influence” on the field.
• Lower standard than extraordinary ability but many of the same
criteria considered in practice for researchers.
• Unlike the EB-1, you do not have to show that you have risen to the
top of the field  not a rigorous comparative standard. However,
must still establish that you have distinguished yourself and impacted
the field.
Issues Specific to Researchers
• Publications:
– First author is a very strong factor.
– The lower your name appears in the list of co-authors, the more
difficult it becomes to attribute any impact on the field to you.
– A limited publication record can be overcome by a high citation
record.
• Large Collaborations:
– The larger the group in which you are working, the less willing
USCIS is to credit you with the contribution to the field.
– Reference letters are important evidence of your critical role in a
project.
NIW Processing
• Same as EB-1, but employment-based
second preference has a backlog for those
born in China and India.
• No premium processing available for NIWs.
• Chinese and Indian-born may elect to file an
NIW to establish a priority date and then try
to build up EB-1 case.
Employment- Based
All Chargeability Areas
Except Those
Listed
CHINAmainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
15FEB09
15NOV04
C
C
3rd
01SEP12
01SEP12
15SEP03
01SEP12
01MAY07
•Priority Date (PD) = date I-140 petition filed
•If preference category is backlogged, can’t file I-485 until PD is
current.
•March 2014 Visa Bulletin (www.travel.state.gov)
Requests for Evidence
• Requests for Evidence (RFEs) are not uncommon with E11s or
NIWs.
• RFEs must be read carefully – they often contain inaccurate
statements of fact that should be corrected in the RFE response.
• Don’t assume the officer did his job – if the RFE suggests the
officer failed to consider some evidence, but sure to point this out.
• A common complaint in RFEs is that the applicant is relying solely
or primarily on reference letters to establish original contribution or
influence on the field – make sure to point out how other evidence
(publications in high impact journals, presentations in leading
venues in the field, etc.) corroborate the assertions made in the
letters.
Green Card Lottery
• Based on country of birth (not citizenship).
• Countries that are NOT eligible include:
• Bangladesh, Brazil, Canada, China (mainland-born),
Colombia, Dominican Republic, Ecuador, El
Salvador, Guatemala, Haiti, India, Jamaica, Mexico,
Nigeria, Pakistan, Peru, Philippines, South Korea,
United Kingdom (except Northern Ireland) and
dependent territories, and Vietnam.
• Persons born in Hong Kong SAR, Macau SAR, and
Taiwan are eligible!
• “Cross-charge” to spouse’s country of birth.
Question and Answer Session
Bernard P. Wolfsdorf
bernard@wolfsdorf.com
Jessica L. Marks
jmarks@wolfsdorf.com
Wolfsdorf Rosenthal LLP
1416 2nd Street
Santa Monica, CA 90401
641 Lexington Ave., 15th Fl.
New York, NY 10022
1-800-VISA-LAW
www.wolfsdorf.com