Permanent Residence

Overview for Research

Scholars and Professors
David Ware, Ware|Immigration
dware@david-ware.com
800 537 0179
Offices 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
• MAVNI
• Spousal Abuse
• Trafficking, Crime Victims
• Removal Proceedings
• Private Bill
 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 risk comes at time of visa issuance
abroad or entry to U.S.
• Change of status and visa applications ask “Has
an immigrant visa petition been filed on your
behalf?”
• So, generally best to be in a status allowing
“dual intent” when applying for PR (eg, H1B, O).
 Common Concepts
• J’s and their dependents can be subject to the two
year home residence requirement because of the
“skills list,” government funding, or if graduate medical
trainees.
• 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.
• Direct US Government funding makes waiver difficult
or impossible.
 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.
• https://travel.state.gov/content/visas/en/law-
and-policy/bulletin/2016/visa-bulletin-for-may-
2016.html
 The “Priority Date”
• An EB immigrant’s “priority date” is the date on which
the I 140 employer petition is filed. If there is a waiting
list in the person’s category, the “priority date”
becomes his or her place on the list.
• 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.
• “Chargeability” always goes by place of birth or
spouse’s place of birth.
• So if you are from China or India, and marry
someone not born in either place, you
“cross charge” to your spouse’s country of birth.
Visa Bulletin Excerpt – October
2016
All Charge
Areas
CHINA-
EB Cat Except INDIA
PRC
Those
Listed

1st C C C

2nd C 15FEB12 15JAN07

3rd 15FEB16 22JAN13 01MAR05

Employment Based 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
• Instead of Adjustment of Status in US, last
step can be Immigrant Visa Processing at
US Consulate abroad (generally not
recommended as affords no legal
protections).
 EB Categories Relevant to
Researchers and Professors
 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.” VERY TOUGH STANDARD.
• 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.
 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 or children approaching
21.
–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 Overview
• 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; “only qualified” standard.
– Special handling: one print or 30 day online
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
 LC for Higher Ed “Teachers”
• 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”.
 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 “instrinsic
merit”.
• Generally must be adding to the body of
knowledge in field.
• Scholar must possess ability in field
“above that normally encountered”.
 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 help get 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, except: China, India, DV Lottery.
(May be relevant for some nonimmigrant statuses).
 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 US citizen results in immediate citizenship
or benefits.
• Having a baby in the US leads to PR (yes, in 21 years).
About the Speaker
David Ware has over 34 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. He is also top rated by AVVO and US News and World
Report. Mr. Ware is a national authority 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. 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 NACE, CUPA, NACUA and
the Federal Bar Association.
He is Chair of the AILA Healthcare/Physician Committee and
also serves on the CSC Subcommittee. He is on the Board of the
Immigration Law Section of the Federal Bar Association.
 QUESTIONS?
¿Preguntas? Vragen?
Domande? Perguntas?
Câu hòi? Shitsumon wa
Fragen? arimasu ka?
Preguntes? Kum tum?
Savāla? Voprosy?
Pytannya? Tanong?
Sorular? Kesyon?
Yŏu wèntí ma? Jilmun?
Maswali? Kit’Khvebi?
Dotazy?
Ερωτήσεις;