Pathways to Permanent Pathways to Permanent ResidencyResidency

• Elizabeth Leibach, Director, Northern Kentucky University, ISSS

• Ted Farrell Immigration Law, PLLC

Introduction to Permanent Introduction to Permanent ResidencyResidency

• Intermediate step• Intention to remain (implications for frequent travel abroad) • Rights and Due Process• Laws are codified in Immigration and

Nationality Act (201 and 204 are the most important sections)

General IntroductionGeneral Introduction

The INA 201 through 204 sections:

1. Establish the worldwide level of immigrant visas

2. Who is entitled

3. The priorities for distribution

General IntroductionGeneral Introduction

• Benefits• Right to Work without further authorization • Right to Public Benefits (limited now)• Right to Financial Aid•Right to Citizenship after a period of time

• Pathways to LPR Status• Family-Based• Employment-Based

• First Preference• Second Preference• Third Preference

• Humanitarian• Asylum• Refugee• Diversity Visa Lottery

Three Pathways

General Introduction General Introduction Process Overview

• Apply to USCIS for approval.

• If approved, receive a priority date

• Wait until the date becomes current (note: this depends on visa type and country)

• If visa is granted, applicant adjusts status from non-immigrant to immigrant (or via consulate)

• Priority Dates (Visa Bulletin available at www.travel.state.gov)

• Overall limit is 480,000 per year• Additional Stipulation that no more than 20,000

persons per country can enter in a year

Priority Dates

• US Department of Homeland Security• US Citizenship & Immigration Services• US Customs and Border Patrol• US Immigration and Customs Enforcement

• US Department of State• US Department of Labor• US Employer• Employee or “Alien”• International Student Office (ISSS)

Parties Involved in LPR Process

• Form I-797 Request for Evidence • Form I-797Approval Notice for I-140 (change of status)• Form I-797 Approval Notice for I-140 (consular

processing)• Form I-797 Approval Notice for I-485• I-551 Stamp (affixed in passport)• Resident Alien Card (“green card”)• Advanced Parole (Travel Document)• Employment Authorization Document (EAD)

Documents of Status or Evidence of Filings

• ETA 9089 (Permanent Labor Application)• I-140 Petition for Immigrant Worker• I-130 Petition for Immediate Relative Petition• I-485 Application to Adjust Status to Permanent

Resident• I-765 Application for Employment Authorization• I-131 Application for Travel Document

• (Advanced Parole is the most common but can be used for Reentry permit for permanent residents seeking to re-enter after a period of absence)

Forms

Common Types Family-Based

Marriage

1) Alien Fiancé

2) If Approved, granted Conditional Residence (valid just 2 years)

3) Can be tricky to remove conditions

Unlimited for Immediate Relatives of U.S. citizens

i. parents

ii. Fiancé

iii. Spouse

iv. minor children

Issues for Students adjusting Status with parents or relatives (Aging Out)

Common Types Family-Based

Limited for these categories:

i. Unmarried Sons and Daughter of Citizens

ii. Spouses and Children, and Unmarried Sons

& Daughters of Permanent Residents

iii. Married Sons and Daughters of Citizens

iv. Brothers and Sisters of Adult Citizens

Dependents and Other Family Relationship

1) Pure Luck

2) 13.6 million apply, 100,000 people

win, the first 55,000 get the visas

3) Need an Affidavit of Support (must show that the person will not become a public charge)

Diversity Lottery

Common University Types Employment-Based(1)FIRST Preference (EB-1): Aliens with Extraordinary Ability, Outstanding Professors and Researchers, and Certain Multinational Executives and Managers.

(2) SECOND Preference (EB-2): Members of the Professions Holding Advanced Degrees and Aliens of Exceptional Ability in the Sciences, Arts, or Business.

a) Special Handling

b) Advanced Degree holder

c) National Interest Waiver (self-petition)

•

Basics of EB-1

Outstanding Researcher Basics Must show recognition internationally in the academic

field AND three years of experience (post-PhD with some exceptions)

Subjective process but there is legal precedent and legal arguments that can help guide you

Preponderance of Evidence is the standard (not beyond reasonable doubt)

Immigration regulations specify that the foreign national must present evidence of meeting two of the following categories [8 CFR 204.5(i)(3)(i)]

•

SECOND Preference (EB-2)

Special HandlingTeaching Faculty selected within 18 months of filing

the petitionRequires a national PRINT publicationEmployee must have the terminal degree and

experience at the time of selection (not the time of hire) unless the Ad says ABD

No additional ads and the standard is higher. You only need to show that the alien was the most qualified for the position at the time of hire.

SECOND Preference (EB-2)

Advanced Degree Holder Can file for Staff or Faculty (non-tenure as well) Requires a new recruitment process (not a “real”

search but for the purposes of ruling out any minimally qualified candidates)

Re-recruitment efforts must take place within 180 day window but not filed earlier than 30 days after the first Ad is placed

If experience is required, the employee cannot gain experience with the petitioning employer in the job offered unless you can make a convincing case that it’s a “Business Necessity”

Less Common Types Employment-Based

THIRD Preference (EB-3): Professionals and Skilled Workers (requiring two or more years of specific education training, or experience) and Other (Unskilled) Workers. Professionals are defined as a person

holding a position which requires a minimum of a bachelor’s degree

These are complex with longer visa wait times May want to consider outside counsel

Eligibility and Inadmissibility Eligibility and Inadmissibility ConsiderationsConsiderations

The consultation may involve the following:The consultation may involve the following:• Determination of international’s subjectivity to

212(e)• Determination regarding “indefinite nature” of

position • Discussions with legal counsel internal/external• Determination regarding appropriate preference

category• Determination of time remaining on H-1B (will

you be able to maintain work authorization while the case is pending).

Eligible for Adjusting Status

LPR Processes and Procedures Questions to Ask before filing

Who submits on behalf of the university (you, department hiring official, human resource department)

What information do I need? How will I obtain that information?

Department may work with the international to submit the materials but its good to have both parties involved.

I-140 is Employer’s responsibilityI-140 is Employer’s responsibilityI-485 is the Employee’s responsibilityI-485 is the Employee’s responsibility

Critical Concerns on the I-485Critical Concerns on the I-485 a) What if I’m asked tough questionsa) What if I’m asked tough questions that are unclear or ambiguous on thethat are unclear or ambiguous on the I-485?I-485? b) What are the problems on the I-485?b) What are the problems on the I-485?

Who’s Responsible

Internal ConsiderationsInternal Considerations

Internal and Legal Policies on campusInternal and Legal Policies on campus

Using Outside CounselUsing Outside Counsel

Internal Policies on campusInternal Policies on campus

Written policy is bestWritten policy is bestInvolve Human Resource & Legal Involve Human Resource & Legal DepartmentDepartmentDetermine the scope of your work Determine the scope of your work

• filing nonefiling none• filing allfiling all• filing somefiling some• difficult cases onlydifficult cases only

Considerations for Outside CounselConsiderations for Outside Counsel

Weighing the university size, staffWeighing the university size, staff knowledge and trainingknowledge and trainingLegal ResponsibilityLegal ResponsibilityNon-attorney employee purview (who can Non-attorney employee purview (who can sign)sign)University is not the applicant with Family-University is not the applicant with Family-based petitionsbased petitionsWorking with Outside Counsel (How do I Working with Outside Counsel (How do I find good counsel?)find good counsel?)

Questions???