Fragomen, Del Rey, Bernsen & Loewy, LLP

7 Hanover Square New York, NY 10004-2756 www.fragomen.com (212) 688-8555

Ethan Kaufman, Esq.

ekaufman@fragomen.com

Adam Ketcher, Esq.

aketcher@fragomen.com

Agenda
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About Fragomen Employment-Based Green Card Strategies Immigration Home Page Q&A

About
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Focused
-! Largest firm in the world exclusively dedicated to providing

immigration services

Experienced
-! Law firm established in 1951

Worldwide immigration program management

-! 36 offices in 15 countries, 250 attorneys, 1700 professionals
-! Strategic network of more than 100 in-country co-counsel

-! Visas, work and resident permits in 160 countries

Comprehensive Immigration-Focused Resources

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Professional Practices Consular Practice I-9 Service Center Technology/Reporting

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Government Relations Export Control Global Compliance Worldwide Immigration

Industry Recognition

Chambers USA 2011 & Chambers Global 2010 Highest possible ranking in immigration category Best Lawyers Ranked #1 in the United States in Immigration Law Whos Who Legal Corporate Immigration Law Firm of the Year, 2005-2011 Recognized by Legal 500 publications in the United States, United Kingdom, and Asia Pacific Named a "Go-To Law Firm of the Worlds Leading Companies, as published by ALM, 2005-2011 ACQ Law Awards Named Corporate Immigration Law Firm of the Year in the United States, Australia, Singapore, and the United Kingdom

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EMPLOYMENT-BASED IMMIGRATION OVERVIEW

Big Picture
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Nonimmigrant vs. Immigrant Visas Key Policy Drivers

-! Family Unity -! Economic Interest -! U.S. National Security

According to the US Bureau of Labor Statistics, the unemployment rate hovers around 9%

Principal Government Agencies

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Department of Homeland Security (DHS)

-! U.S. Citizenship and Immigration Services (USCIS) -! Customs and Border Protection (CBP) -! Immigration and Customs Enforcement (ICE)

Department of Labor (DOL)

-! Office of Foreign Labor Certification -! PERM Processing Center

Department of State (DOS)

-! U.S. Embassies and Consulates -! Visa Office

Nonimmigrant (NIV) Visas

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Coming to the U.S. temporarily Visas A through V Category determines:

-! Permissible Activity -! Eligibility Requirements

- Procedure - Period of Admission

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J Visas: Two-year foreign residence requirement Final Expiration relates to Green Card Initiation

Immigrants
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Green card holders = permanent residents Family and Employment based Eligible for U.S. citizenship after 3 - 5 years Quota

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Quota Retrogression As Of November 2011

Employment-Based

All Chargeability Areas Except Those Listed

CHINA Mainland Born

INDIA

MEXICO

PHILIPPINES

1st (EB-1) 2nd (EB-2) 3rd (EB-3)

C C 22DEC05

C 01NOV07 22AUG04

C 01NOV07 22JUL02

C C 22DEC05

C C 22DEC05

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Employment-Based Permanent Residence

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3 stage process
-! Labor certification (where required)
! filed by employer with DOL

-! Immigrant preference petition

! filed by employer with USCIS

-! Adjustment of status or consular processing

! filed by the foreign national & family members with USCIS or DOS

2 stage process
-! By-pass Labor Certification and move directly to filing the

Immigrant preference petition. -! Three Categories

! Extraordinary Ability Category ! National Interest Waiver

! Outstanding Researcher Category

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2 Stage Green Card Process

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By-pass Labor Certification Categories Considered at SUNY

-! Extraordinary Ability Category -! Outstanding Researcher/Professor Category -! National Interest Waiver

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EB-1 Extraordinary Ability

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Applicant must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise Applicant must be able to provide letters verifying his/ her extraordinary ability written by other notable experts in the field of expertise SUNY may sponsor or employee may self-petition

EB-1 Extraordinary Ability

Must meet at least 3 of the 10 criteria below, or provide evidence of a one-time achievement (e.g. Nobel Prize):
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence 2.! Evidence of your membership in associations in the field which demand outstanding achievement of their members 3.! Evidence of published material about you in professional or major trade publications or other major media 4.! Evidence that you have been asked to judge the work of others, either individually or on a panel 5.! Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field 6.! Evidence of your authorship of scholarly articles in professional or major trade publications or other major media 7.! Evidence that your work has been displayed at artistic exhibitions or showcases 8.! Evidence of your performance of a leading or critical role in distinguished organizations 9.! Evidence that you command a high salary or other significantly high remuneration in relation to others in the field 10.! Evidence of your commercial successes in the performing arts
1.!
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EB-1 Extraordinary Ability

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KAZARIAN v. USCIS (Sept. 2009) An exceptional theoretical physicist, not yet at the restrictive caliber of extraordinary. USCIS Memorandum: Evaluation of Evidence Submitted with Certain Form I-140 Petitions (Dec. 2010)
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Two-part analysis: met at least three of the criteria

(1)! Whether the petitioner has, by a preponderance of the evidence, (2)! Whether the totality of the evidence supports a final merits

determination that the alien is one of that small percentage who has risen to the very top of his or her field of endeavor, and that he or she has sustained national or international acclaim. Extends analysis to Outstanding Researchers/Professors

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EB-1 Outstanding Researchers/Professors

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SUNY must sponsor Applicant must demonstrate international recognition for your outstanding achievements in a particular academic field Applicant must have at least 3 years experience in teaching or research in that academic area Applicant must be entering the United States in order to pursue tenure or tenure track teaching or comparable permanent research position at a university or other institution of higher education; or to do research work in industry where the petitioning organization meets the regulatory criteria Post-Doc positions do not qualify

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EB-1 Outstanding Researchers/Professors

Must meet at least 2 of the 6 criteria below:
Evidence of receipt of major prizes or awards for outstanding achievement
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Evidence of membership in associations that require their members to demonstrate outstanding achievement Evidence of published material in professional publications written by others about the alien's work in the academic field Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field Evidence of original scientific or scholarly research contributions in the field Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
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EB-2 National Interest Waiver (NIW)

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Employee may self-petition Requesting that the Labor Certification be waived because it is in the interest of the United States Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national interest

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EB-2 NIW Criteria

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Employment is in an area of substantial intrinsic merit The proposed benefit is national in scope The significant benefit derived from this particular aliens endeavor considerably outweighs the inherent national interest in protecting US workers through the labor certification process

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Immigration Home Page

Q&A

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Thank you!