Immigration Services
The Immigration and Naturalization Act provides for immigration without labor certification or job offer for certain highly qualified individuals who have been determined to be "aliens of extraordinary ability" or aliens whose immigration is "in the national interest."
These related petition categories require that the applicant prove superior ability in an area that benefits the U.S. and that the benefit to the U.S. be greater than would be typical for an individual in the field.
These categories are available for people in every field. Our office, in fact, has been successful with hundreds of these applications for primary and non-primary physicians, scientists, engineers, business people, and artists.
For establishing extraordinary ability in the normal case, the petitioner must prove that he or she is one of a few at the top of his field and this must be supported by evidence from at least three of eight categories:
- Significant Contributions: These can include research as well as practical or clinical contributions (care report, improving clinical modality)
- Honors, Awards and Distinctions: This can include any distinctions you received while studying or training any research or study grants; any prizes for presentations, any specialization certificates (M.R.C.P., M.D.), competitive fellowships or residency positions, etc.).
- Publications: Include written and oral presentations and abstracts in journals, conferences or professional meetings.
- Leading and Critical Posts: Include jobs in which the petitioner has significant research, teaching, practical or administrative responsibility.
- Judge of the Work of Others: Includes teaching and research evaluations.
- Membership in Societies, which require Outstanding Achievements: Includes specialty certifying societies, and professional societies.
- Material about the Alien: Includes newspapers, magazine clippings, citations, etc.
- High Salary in Comparison to Others: In the country in the field at the time.
Evidence submitted should include at least a half dozen testimonial letters from the petitioner's peers or supervisors testifying in detail how the applicant meets the standards. It should also include substantial corroborating evidence, such as degrees, diplomas, specialty certifications, evidence of high scores on exams, and of course, any relevant research.
Our office is highly experienced in developing these cases in the meticulous manner that is required. The office spends significant time working with individual clients to develop unique qualifications of the individual and to ensure that they are put into letters that are presented. We also ensure that the petitioner collects as much of the corroborating evidence as is possible.
The strategy can have unique benefits since it requires no job offer or labor certification and can support a simultaneously filed application for adjustment of status as well as work authorization and travel permission allowing the petitioner and his or her family to work and travel freely often within a couple of months of filing. This strategy can be used as an exclusive immigration strategy or can complement any other strategy.
Labor certification is one of the most important strategies for foreign workers to obtain immigration in the U.S. When I began to practice immigration law in 1980, the process took only a few months any place in the country. With such processing times the process made sense both for the employer and alien employee. By 2004 processing times had mushroomed to beyond five years in many parts of the country. For several years the U.S. Department of Labor has been trying to change the way alien labor certifications are processed to make the procedure again reasonable. PERM, which stands for "Program Electronic Review Management" offers what all hope may be the solution to the delays. It is essentially computer review of labor certification applications. Much in the way tax returns are computer reviewed by the Internal Revenue Service allowing the IRS to process more than one hundred million each year in only a few weeks, the DOL hopes to expeditiously process alien labor certification applications.
A labor certification is a certification by The U.S. Department of Labor that a position exists for which there are no available U.S. workers. Over the last several decades a complex and substantial body of law has evolved restricting how the job must be described and how the test of U.S. workers must be implemented. This body of law remains substantially unchanged under PERM, but the method by which the information must be presented and the method by which they are processed is radically changed.
The following is an introduction to PERM.
- Who can sponsor for labor certification?
Under PERM current or potential prospective employer may sponsor an alien for labor certification if they may offer the alien permanent employment when the alien becomes a legal permanent resident. Employers may be companies or individuals not here on a temporary basis. It is appropriate for a future employer who may wish to hire an alien permanently to proceed with labor certification to determine if such future employment may be possible. A contact is not required and the offer may be withdrawn and the labor certification terminated by the employer until such time as the alien becomes "portable."
- Job Portability
Once the alien Beneficiary becomes "portable" the plan for the sponsor to employ the alien when the alien becomes a permanent resident may change, Three conditions must be satisfied for the alien to become "portable:" 1. the labor certification must be approved, 2. the I-140 or immigration petition must be approved; and 3. the adjustment of status or I-485 must have been filed been pending for at least 180 days. Prior to portability the employer can cancel the immigration process at his discretion, after portability the employer has no such power. Once portable, the alien's only continuing obligation is to remain in the "same or a similar occupation." The alien can work anywhere or even be self-employed as long as it is in the same or a similar occupation.
- PERM
PERM is a new internet-based labor certification process that enables the vast majority of cases to be adjudicated within 45-60 days. After 3/27/05 ALL LABOR CERTIFICATION APPLICATIONS WILL HAVE TO BE FILED UNDER PERM. APPLICATION FILED BEFORE THIS DATE MAY UNDER CERTAIN CIRCUMSTANCES BE CONVERTED TO PERM.
- How to convert an old case to PERM
You may convert an old case by withdrawing the case and refiling an IDENTICAL case within 210 days of the withdrawal, enabling you to retain the original priority date. Advertisement needs to be redone. And additional recruitment may be required.
- Wage
The wage is determined by making a formal inquiry to the State Department of Labor. The wage offered cannot be based on commissions, bonuses or other incentives.
- Advertisement
Advertisement required includes: (1) a job notice, (2) a job order placed with the SWA, (3) two Sunday print ads OR one Sunday ad and one professional journal ad for professional positions.
For professional positions only three additional recruitment steps are required out of the following: job fair, employer web site, job search site, on campus recruiting, trade or professional organizations, private employment firms, employee referral program, campus placement office, local & ethnic newspapers, radio and tv advertisements. The Ad must include the employer's name, contact information, brief job description, geographic area. The ad need not include the salary that the alien will be paid when granted immigration. Two advertisements (as well as the job order) must be placed more than 30 days but less than 180 days before filing the application. The only requirement for the newspaper is that it be a newspaper of general circulation within the geographic area.
- Recruitment Report
A recruitment report must be prepared and signed by the employer describing (1) recruitment steps, (2) results, (3) number of hires, (4) US workers rejected and reasons for rejection. Copies of all resumes received must also be retained. These documents are submitted to the Department of Labor in the event of an audit.
- Job Requirements
PERM remains similar to the old labor certification process in that an employer may require skills arising from business necessity and may use alternative experience requirements.
- Layoffs
If the employer has had layoffs in the area of intended employment within 6 months of filing an application, the employer must document that it has notified and considered all potentially qualified laid off Us workers.
- Processing Time & Procedure
PERM cases will be accepted starting March 28, 2005. PERM cases are filed on the internet but can also be filed by mail. For cases filed by internet, all parties must immediately print and sign the filing in order for it to be valid and for it to be submitted to USCIS upon approval. Most cases are approved in 45-60 days. A small number of cases will be selected for random auditing where the employer will have to provide the recruitment report or demonstrate business necessity. Employers have 30 days to respond to audit requests.
If you are interested in filing a case through PERM or converting an existing labor case to PERM, please contact our offices by calling 212 764 4222 to schedule an appointment. Or email us at info@jeffries-law.com.
Physicians working in designated medically underserved areas (HPSAs and MUAs) for five years may generally qualify for national interest waivers under certain conditions. The physician must agree to work full-time in such an area for aggregate of five years within a six-year period. For physicians who have obtained J-1 waivers, the five years commence from the time H-1 employment begins. For other physicians, the five-year period does not begin until immigration petition is approved. There is a reporting requirement that within 120 days of the second anniversary of the I-140 approval, the physician proves to the Service that at least one of the years has been in the underserved area. At the end of the five-years of service, the physician must again prove that the obligations have been satisfied.
The Service permits the simultaneous filing of adjustment of status along with the immigrant petition even for J-1 physicians who have not yet completed their obligations under Section 214(l) of the INA to work in the underserved areas for three years. Derivative adjustment applications may at the same time be filed for family members. This strategy has unique advantages in this one regard: adjustment of status may be filed for J-1 and for accompanying family members before completion of the obligations to work for three years in underserved areas. This can greatly benefit a spouse who needs work authorization. Still, the J-1 doctors must complete 214(l) obligations by maintaining H-1B status for a three-year period. Neither statute nor regulations per se limit this strategy to primary care physicians, however, comments to the regulations do. This seems inappropriate, and particularly so for physicians who have obtained waivers through the VA or state programs.
Evidence submitted in a typical case includes a five-year contract to work in the underserved area and a letter of support dated within six months of submission from a federal agency or department of health recommending that the waiver is in the nation's interest.
In certain special circumstances the commitment to work in the underserved area is for only three years (if filed before November 1, 1998).
This strategy is also available for physicians who intend to be self-employed.
The O-1 visa is available to physicians, scientists, engineers, and indeed to persons in any occupation who have risen to the top of their field. Such status must be evidenced by sustained recognition and satisfaction of at least three of eight evidentiary criteria:
- Original contributions of major significance;
- Material published about the alien;
- Nationally recognized prizes, awards, distinctions;
- Evidence of service in a leading or critical role for distinguished organizations;
- Evidence of having served as a judge of the work of others;
- High salary in comparison to others;
- Authored scholarly articles, abstracts of presentations;
- Membership in societies that demand outstanding achievement.
Besides being available to H-1B visa holders who may be approaching their H-1B limit,
the O-1 visa is especially valuable to J-1 visa holders who are blocked from H-1B or permanent visas by the foreign residency requirement since the O-1 is available to a present or former J-1 visa holder without waiver or satisfaction of the two-year home requirement. Although the O-1 visa is not itself a waiver, it is compatible with a waiver which, in some instances, may be obtained for the same job or a different job while the candidate is in O-1 status. The O-1 can also be used as a vehicle to work within the U.S. while the two-year home requirement is satisfied incrementally over a number of years. The O-1 can be obtained initially for up to three years and can be indefinitely extended in either one or three year increments. The O-1 requires a job offer and an employer. The employer can be a hospital, a research institution, or a private practitioner and need not be located in a designated medically underserved area. It is not necessary for employers to recruit U.S. candidates or advertise for the O-1. The O-1 is available to primary physicians, scientists, and persons who have risen to the top of their field.
Because standards are high for the O-1, presentation of an O-1 case requires meticulous preparation. Evidence that is typically submitted includes a series of detailed peer support letters which properly articulate evidence that satisfies O-1 standards as well as substantial supporting documentation such as degrees, diplomas, and research papers. Because peers may not be knowledgeable as to the legal standards or the facts that may be relevant to them, our office prefers to prepare sample letters that the referees may use as guides. These sample letters need to be extremely detailed. Our office procedure is to obtain details from the O-1 candidate through extensive discussions and written directions. We also provide detailed lists of corroborating evidence and detailed heading sheets for the candidate to collect and categorize documentation.
If well prepared, the O-1 can be an effective strategy for those wishing to work in the United States.
The H-1B visa provides a work status for aliens with the equivalent of a Bachelor's degree who are working in a field which requires such a degree. The United States Citizenship and Immigration Services (USCIS) terms these to be a "specialty occupations."
In order to evidence that the alien may be qualified for a specialty occupation, it is necessary to submit evidence of his/her Bachelor's Degree or the equivalent thereof. If the alien received all of his degrees overseas, it may be necessary to obtain a professional evaluation of that degree which evidences that Beneficiary's overseas diploma is the equivalent of a U.S. Bachelor's degree. This is not necessary if the alien has a Bachelor's or Master's degree from an accredited U.S. school.
For graduates of foreign medical schools, including those in Canada, who will have clinical responsibilities, it is also required that the candidate pass all three parts of the USMLE or both parts of FLEX and be competent in English. These additional qualifications, however, are not required for those physicians interested in positions involving teaching or research with only incidental patient care. Unlike the J-1, the H-1B is not subject to the requirement to return to the home country for two years. The H-1B does require a U.S. petitioner (employer).
To evidence that the job is a "specialty occupation," an in-depth description of the technical/professional nature of the job responsibilities must be provided. The job description is developed through information gained from the employer and alien as well as other sources. It is important to have a detailed description including the complexities involved in this position.
In some cases it may also be necessary to show the employer is financially viable by submitting strong documentation such as:
- Corporate Brochures;
- Annual Reports;
- Tax Returns; and
- Payroll Records
.
While these items are not necessary to the petition, they may make an impact on the BCIS and result in quicker approvals.
An H-1B petition may be approved for a three-year period and may be extended for a total of six years. However, if an employment-based petition (Form I-140) or labor certification has been pending for one year at the end of the sixth year, additional extensions in one year increments may be available. An alien may only work for the employer, but an alien may have multiple petitions approved allowing simultaneous employment by each petitioner.
The L-1 visa is for intra company transferees. These are executives, managers, or employees of a foreign based company who are engaged in specialized employment. The requirement is that the alien must have worked for three years before submission of the petition overseas in an executive, managerial or specialized capacity. The purpose of the L-1 visa is to allow the alien to work in the U.S. in a similar capacity for the same entity that he has worked for abroad for a subsidiary or an affiliate of that entity. Evidence must be submitted of the qualifying foreign and U.S. entity and that the alien has worked in an executive, managerial or specialized capacity.
For companies that have been doing business in the U.S. already, the L-1 may be approved for three years initially. For companies that are starting operations, typically the L-1 is approved for one year only. Evidence must be submitted of regular business activity for further extension. For executives and managers, the L-1 may be granted up to seven years. For those with specialized knowledge, the L-1 is limited to six years.
Transferee executives or managers may obtain immigration as "multi national executives" once the U.S. entity has been engaged in regular and systematic business for a one year period. If a foreign entity purchases a U.S. company that is, in fact, engaged in systematic and regular business for one year, an immigration petition may be immediately filed.
Physicians are subject to a number of unique provisions relating to their eligibility for visa issuance. Also because of the nature of U.S. licensing for medical doctors, physicians often obtain either J-1 visas or H-1B visas for substantial periods of time before they can actually practice medicine in the U.S. This in itself may impose special burdens on the physicians' desire to be in the U.S. beyond training. At SJA we have unique experience in developing strategies and preparing petitions for the BCIS to meet the physicians' needs.
Our office is highly experienced in preparing H-1B visa petitions both for clinical and non-clinical responsibilities. We are also highly experienced in dealing with problems with physicians who approach their sixth year of H-1B eligibility and have implemented a number of strategies to extend H-1s for seven years and beyond. We also have expertise in alternatives for the H-1 physician reaching his final year of H-1B eligibility including change applications to O-1, EB-1, and NIW petitions with simultaneous filing of adjustment of status.
For physicians who have training on J-1s, we are able to offer concrete advice on the fulfilling the J-1 obligations as well as all of the strategies for waiver of the foreign residency requirements including interested government agency waivers, research waivers, persecution waivers, and hardship waivers. We also can recommend strategies that pertain to the J-2.
STRATEGIES FOR THE PHYSICIAN APPROACHING THE SIX-YEAR LIMIT
There are a number of important strategies for physicians who are approaching the six-year limit of their H-1 eligibility.
The Immigration Act provides that those who have a labor certification pending for more than one year when their sixth year of eligibility completes, one-year status extensions of the H-1B visa are available on an annual basis until there is a final solution of the immigration based upon their respective labor certification. The labor certification may be petitioned for by an employer different from the one petitioning the H-1. The labor certification petitioner may include either a present employer or a future prospective employer who might like to employ the individual in the future when the beneficiary's permanent residence is granted.
The second important strategy for dealing with physicians who approach the sixth-year eligibility is to obtain another non-immigrant status such as TN, O-1, or E-1.
The third strategy is for the beneficiary to adjust status to legal permanent resident based upon simultaneous filing of an extraordinary ability EB-1/NIW or NIW/HPSA.
Finally, certain circumstances of the six-year eligibility may be reclaimed if, for example, the beneficiary enters the U.S. for the first time after the original petition is approved or during the six years has spent time outside of the U.S. which has been "meaningful interruption" of status."
STRATEGIES FOR THE J-1 PHYSICIANS
There are a number of non-immigrant visas not requiring waiver that the J-1 physician may be eligible, to wit:
TN, O-1, E-1.
In addition, there are a number of waiver strategies, including clinical waivers based on service in underserved areas. (Clinical Waivers).
Additionally, there are a number of personal waivers available including persecution waivers and hardship waivers (see Hardship and Persecution Waiver).
There are waivers for researchers that may be submitted to HHS (see Waivers for Researchers).
Finally, physicians who would face persecution may apply for asylum if successful, rapid work authorization (not requiring a job) and ultimate immigrant as an asylee.
Health and Human Services: (HHS)
For many years the Department of Health and Human Services has made recommendations for physicians engaged in research. In an exciting development, in December 2002, rules were published allowing for the Department of Health and Human Services to recommend waivers for clinicians based on service in federally designated underserved areas. The program is limited to primary care physicians. Not only must the physician intend to work as a primary care doctor, but he or she must submit the waiver application within 12 months of the completion of a primary care residency program (exception is made for 2003, allowing submission to October 2003).
The basic requirements for submission are that the physician be working as a primary care physician (family practice, general internal medicine, Ob/Gyn, general pediatrics or general psychiatry) engaged in outpatient services for a period of three years on an H-1B visa for at least 40 hours per week. The facility must treat all patients regardless of their ability to pay, must accept Medicare S-CHIP assignment, and use of a sliding scale. The contract may not include a non-compete clause. The application requires a support letter from the State Health Department. As noted, the physician must have completed his or her residency program within one year of submission of the application. The employer must document recruitment of U.S. workers.
Appalachian Regional Commission:
As the Health and Human Services is the newest agency to which the waiver application can be submitted, the ARC is the oldest such agency. The ARC may recommend waivers for certain counties in the following states:
Alabama, Georgia, Kentucky , Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia.
Like the HHS, the ARC limits waivers to primary care practitioners which include general family practice, general internal medicine, Ob/Gyn, general pediatrics, or
general psychiatry. Also, like the HHS, the ARC program requires recent recruitment. ARC programs are administered through the governor's office of the state where the position will be filed. There are differences as to standards from state to state regarding issues like which range of primary care services are supported and the level of recruitment that is required. The ARC requires that a liquidated damages clause requiring the alien to pay to the employer $250,000 for breach of contract be part of the contract.
Other ARC requirements include requiring that the facility be Medicare and Medicaid certified and accept patients regardless of ability to pay and that the percentage of Medicare patients be not less than 80% of the percentage in the state and the percentage of Medicaid patients be 80% as well. ARC also will not recommend waivers for physicians who have been in violation of status for more than 180 days. However, for those in duration of status not to be triggered until an immigration judge makes a decision of status violation.
Delta Regional Commission:
DRC is a relatively new federal agency similar in many ways to the ARC. Like the ARC, DRC requires that the physician work as a primary care physician in a federally designated area. It also requires that the employer engage in good faith recruitment prior to submission of the application. Currently, DRC operates in certain parts of the following states: Mississippi, Louisiana, Alabama, Arkansas, Tennessee, Kentucky, Missouri, and Illinois. (See www.dra.gov). Although there is no liquidated damages requirement in the contract, neither is a non-compete clause permitted.
Conrad State 30 Program:
The Conrad State 30 program is a very important waiver option for the non-primary care physician since, unlike the HHS, the ARC, and the DRC individual states may, if they chose, make recommendations for any type of physician including specialty and sub-sepcialty. Increasingly, many are choosing to do so. This trend will hopefully continue, since theoretically most primary care labor cases could be submitted to HHS with state support. Again, basic requirements apply. The position must be for 40 hours per week in a federally designated underserved area. The number of waivers, however, are statutorily limited to 30 per year per state. The state programs vary widely as per level of recruitment required, type of petitions supported and type of application required.
Veterans Administration:
The VA is the only federal program that, like the Conrad State 30 program, permits waivers for non-primary care physicians. Like most other programs, recruitment is required. The waiver may be granted upon appointment with only 5/8 service at the VA hospital and 3/8 at the affiliated university. However, physicians should be concerned in such a scenario that they satisfy the obligation of section 214(l) for a period of three years in H-1B status. The VA is precluded from recommending waivers for those who will engage in time limited employment such as residency and fellowship positions.
One Method for a J-1 Physician to obtain a waiver of the foreign residency requirement is to obtain a "hardship" waiver. Hardship waivers are based on a showing of exceptional hardship, not merely a showing that conditions are more difficult in the individual's home country. The requisite hardship must not be for the J-1 visa holder, but rather to a U.S. Citizen or Permanent Resident spouse or child of the J-1 visa holder.
Hardship factors may include:
- economic hardships
- political hardships
- religious hardships
- hardships caused by dangerous environment in the home country
- medical hardships
- social hardships
- psychological hardships
- and other hardships
Again, the BCIS must find that the hardship is exceptional not the normal hardship that
satisfaction of the two-year requirement would impose on anyone. The strongest cases often involve situations where the U.S. Citizen or Legal Permanent Resident has a medical condition, or an English language disability or psychological vulnerability that would be exacerbated in the J-1 visa holder's home country. Other strong cases exist where the Department of State lists the home country as dangerous for U.S. Citizens who would travel there.
In processing an application for hardship waiver, the case is submitted directly to the BCIS. After the BCIS makes a preliminary determination of hardship, the case is forwarded to the Waiver Review Branch of the United States Department of State (formerly USIA). In making this determination, the Waiver Review Branch will weigh the hardship to the U.S. Citizen or Permanent Resident against the policy underlying the exchange visitor program. Normally, however, the DOS concurs with BCIS's determination. After DOS's concurrence, the BCIS issues the final approval.
The HHS research waiver is for physicians or scientists subject to the foreign residency requirement who are indispensable to research which is clearly in the national interest. Unlike the O-1 visa or the EB-1 petitions, the HHS research application is reviewed by scientists who are experts or at least very familiar with the area of the research. Often times they are NIH scientists. The factors that are relevant to success of HHS waiver applications are the following:
- National importance of the research itself; this relates to such factors as how many people are affected that the research focuses on, the uniqueness of the research as well as its chances for yielding fruitful results.
- Indispensability and essentiality of the alien to the product itself. The alien should be a principal scientist critical to its development.
- Qualifications of the alien as a researcher.
- Overall strength of the hospital or organization where the alien is performing research.
- The facility's long-term commitment to the alien.
- The alien's commitment to the research -- at least 50% of the time must be allotted to the research.
- The extent of recruitment efforts undertaken by the facility to find a suitable candidate for the position.
Unlike the VA, state or other IGA waiver candidate, the successful researcher is not subject to the requirements of INA 214(l) that he/she work in the position on an H-1B for three years. The applicant may instead move directly to legal permanent residency by obtaining approval of an immigrant petition. Quicker immigration may provide advantages in obtaining certain funding (including NIH) that is otherwise restricted to legal permanent residents.
As lawyers representing you in this application, we will be involved in collecting
testimonial and documentary evidence which shows that legal standards are satisfied.
A persecution waiver may be available to a J-1 if a "well founded fear of persecution" can be established. The fear of persecution must be as a result of the alien's membership in an established group such as a religious, ethnic, political, or professional group. There is no requirement that the alien have a spouse or child who is a U.S. Citizen or Legal Permanent Resident. In some cases it is appropriate to file simultaneous petitions under both the hardship and persecution categories.
Unlike waivers to work in underserved areas, approval of a hardship or persecution waiver does not require the J-1 visa holder to work in an H-1B for three years. Nor must a recipient of a hardship waiver work in a particular location of the United States. Rather, the waiver recipient may apply directly for permanent residency if there is affirmative basis for such an application. However, the waiver only is waives the two-year home residency requirement. It does not confer permanent residency status nor any type of work authorization. Permanent residency and work authorization must be made in a separate application.
Processing time for waiver applications may be substantial, often taking one year or more.
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