Permanent Residence and
Waiver Options
for Clinicians and Researchers
H. Ronald Klasko, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia
New York
1800 John F. Kennedy Blvd., 17th Floor
Philadelphia, PA 19103
215.825.8600
317 Madison Ave., Suite 1518
New York, NY 10017
212.796.8840
www.klaskolaw.com
rklasko@klaskolaw.com
H. Ronald Klasko, Esq.

Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP. Ron and
his firm were chosen by clients and peers as one of the top five immigration firms in
the country for five consecutive years and “the strongest in the country in
representing clients in the university research and medical sectors.” (Chambers Global)

Ron is a former National President of the American Immigration Lawyers Association.
He has been a featured invited speaker for the American Association of Medical
Colleges (AAMC) and the Educational Commission for Foreign Medical Graduates
(ECFMG). He has been Adjunct Professor of Immigration Law at Villanova University
Law School and is a frequent author and lecturer on immigration law issues related to
academic healthcare institutions.

Ron is selected annually for inclusion in Best Lawyers in America. Mr. Klasko is the
founder and co-chair of NAFSA’s Healthcare Interest Group. His practice emphasizes
representation of universities, hospitals and research institutions and their students,
scholars, staff and employees.
Klasko, Rulon, Stock & Seltzer, LLP
J-1 Waiver Options
No objection statement
 Exceptional hardship
 Persecution
 Interested government agency

Klasko, Rulon, Stock & Seltzer, LLP
No Objection Statement
Researchers only
 Usually not helpful if U.S. or international
organization funding
 Quickest and easiest waiver
 Attitudes of different countries

Klasko, Rulon, Stock & Seltzer, LLP
Exceptional Hardship Waiver
Hardship to U.S. citizen or LPR spouse or
child
 Hardship must be “exceptional”
 Very difficult

Klasko, Rulon, Stock & Seltzer, LLP
Persecution Waiver
Individualized persecution
 Similar to asylum

Klasko, Rulon, Stock & Seltzer, LLP
Interested Government
Agency Waivers

General
 Choosing
between research track and clinical
track
 Research
track
Usually through HHS
 Peer review process – unlike CIS filings
 Do not need 3 years in H-1B?

Klasko, Rulon, Stock & Seltzer, LLP
HHS Waivers

Key Issues
 Importance

Does not have to be NIH funded
 Essentiality

of research program
and uniqueness of foreign national
Recruitment (unavailability of U.S. researchers)
 Future
of program and future of foreign national
 Bench research (at least 30 hours per week)
vs. clinical research
 Excellence of foreign national’s research
Klasko, Rulon, Stock & Seltzer, LLP
Obtaining a J-1 Waiver

Clinical Track
 Choosing
state vs. federal agency
 Choosing between states
 Cannot file more than one
 HPSA or MUA or FLEX 10 or V.A.
 Must be 3 years in H-1B

“Extraordinary circumstances” to change employers
Klasko, Rulon, Stock & Seltzer, LLP
Obtaining a J-1 Waiver

Timing issues
 Vary
by state
 Vary by federal agency
 3 steps
 When to start
 Options if J-1 expiring
O-1
 J-1 extension?
 Leave U.S.

Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
Conrad 30 Waivers

Must be HPSA or MUA
 Except

FLEX 10
Agree to begin employment within 90 days of
receiving waiver
 Can
delay if still in training program
 Can expedite by filing H-1B before CIS approves waiver
Klasko, Rulon, Stock & Seltzer, LLP
Conrad 30 Waivers
(cont’d)

Differences between states
 Timing
 Recruitment
required
 When/how choose 30?
 Primary care? Specialty? Subspecialty?
 Use of FLEX 10
Klasko, Rulon, Stock & Seltzer, LLP
Federal Government
Agency Waivers

Issues in common
 40

hours in HPSA or MUA
Except VA
 Primary
care
General practice, family practice, internal
medicine, psychiatry, pediatrics, OBGYN
 Except VA and DRA

Klasko, Rulon, Stock & Seltzer, LLP
Federal Government
Agency Waivers
(cont’d)
 Recruitment
 Facility
must provide medical care to
Medicaid/Medicare-eligible and indigent
uninsured patients
 No non-compete clauses
Klasko, Rulon, Stock & Seltzer, LLP
Federal Government
Agency Waivers
(cont’d)

V.A. Waivers
3
levels of approvals
 National and internal recruitment
 At least 5/8 appointment
 O-1 must wait 2 years
Klasko, Rulon, Stock & Seltzer, LLP
Federal Government
Agency Waivers
(cont’d)

Appalachian Regional Commission Waivers
 Rural
counties in 13 states
 File with state
Need state concurrence
 Some states will transfer Conrad 30 to A.R.C.
 Some states do not allow specialty training

 Recruitment
within last 6 months
 Cannot be out of status more than 6 months
 HPSA only
Klasko, Rulon, Stock & Seltzer, LLP
Delta Regional Authority Waivers






Part of 8 states
HPSA or MUA
No limitation to primary care
Specialty training allowed
Recruitment for 60 days, including national
Site surveys every 6 months
Klasko, Rulon, Stock & Seltzer, LLP
HHS Waivers





HPSA of 7 or higher
Need state DOH support letter
Must file within 12 months of completion of
primary care residency
Limited to rural health clinics, certain native
American facilities and HRSA-grant health centers
Very long process – not user friendly
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Family
 Investment
 Asylum
 Lottery
 Employment

Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment



Employer-sponsored or self-sponsored
Labor certification or extraordinary/national
interest/exceptional
Multiple petitions
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment
(cont’d)

Quotas
 Visa
Bulletin (www.travel.state.gov)
 Per country of birth, per preference category, per
fiscal year
 Filing date is “priority date”
 EB-1 (extraordinary ability, outstanding researcher)

No quota wait
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment

Quotas
(cont’d)
 EB-2


National interest waiver
Labor certification requiring




Masters degree
Bachelors degree plus 5 years progressive experience, or
Exceptional ability
No quota wait, except China and India
 EB-3


Labor certification requiring bachelors or 2 years experience
Long quota wait for all countries
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment

Self-Sponsored
 Extraordinary
ability
EB-1
 Standard

National or international reputation
 “One of few at the top of peers”
 Key is defining field of expertise specifically

Extensive documentation required
 Reference letters critical

Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
Permanent Resident Status
Employment
 National
Interest Waiver
EB-2
 Standard

Exceptional ability or advanced degree
 National priority
 National impact

Extensive documentation required
 Reference letters critical

Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
Permanent Resident Status
Employment
(cont’d)

Employer-Sponsored
 Outstanding
Researcher
EB-1
 “Permanent position”
 Similar to extraordinary ability

Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment

(cont’d)
Evaluating Eligibility
CV Evaluation
 1st

listed author publications
In process; submitted; accepted; published; cited
 Impact factor?
 Citations
 Footnote
 Text
 Presentations
 1st listed abstracts
 Oral vs. poster
Klasko, Rulon, Stock & Seltzer, LLP
 Book chapters
 Honors and awards
 Manuscript reviewer
 Media
 Memberships
 Patents
Permanent Resident Status
Employment

Evaluating Eligibility
Evaluation Outside of CV
 Importance/narrowness
of field of expertise
 Ability to explain importance
 Significant contributions to field



First, only, best, new discovery?
Impact on field and other researchers
New? Old? Sustained?
 Referees
Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
Permanent Resident Status
Employment
(cont’d)

Choosing Referees
 How
many?
 Good C.V.’s
 Prestigious institutions
 Geographical diversity

One per institution
 Impartiality
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment
(cont’d)

Other Factors
 Not
a peer review process
 Importance of job title?
 Importance of employer sponsorship?
 File now, or wait?
 Choice of attorney; role of attorney
Klasko, Rulon, Stock & Seltzer, LLP
EB-1 for Clinicians

General
 Why
more difficult than researchers
 Can be done for residents?
 Still need waiver for I-485
Klasko, Rulon, Stock & Seltzer, LLP
EB-1 for Clinicians
(cont’d)

How prove extraordinary ability as a clinician?
 Rare
expertise in sophisticated procedures or
technologies
 Complicated diagnoses missed by other specialists
 Unusual success rate
 Novelty of procedures
 “Wow” cases
 Prestige of institution
Klasko, Rulon, Stock & Seltzer, LLP
EB-1 for Clinicians
(cont’d)
 Difficult
surgical procedures
 Prestigious fellowships
 Significance of Board certification or “Diplomate”
 Judge of medical students, residents, or nurses
 Grand round presentations
 High salary
Klasko, Rulon, Stock & Seltzer, LLP
Special Handling
Labor Certification (PERM)



Employer-sponsored
Must be “some classroom teaching”
Nationwide competitive recruitment



At least one print ad
“Selected” within last 18 months
EB-2
Klasko, Rulon, Stock & Seltzer, LLP
Special Handling
Labor Certification (PERM)
(cont’d)

Can apply to attendings and other clinicians if
“some classroom teaching”
 Can
be very small percentage
 Can be teaching of residents in a classroom

Choice if selection more than 18 months ago
 “Reselection”

One national print ad
 Regular

recruitment
Most qualified standard still applies
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment
(cont’d)

Labor Certification Application (PERM)
 Employer
Sponsored
 Recruitment
 Prevailing wage
 Legal issues
 Timing
 First of 3 steps
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment
(cont’d)

Timing
 Electronic
filing
 Possibility of audit
 First of three steps
 Importance of filing before end of 5th year in H-1B
status
Klasko, Rulon, Stock & Seltzer, LLP
Clinical National Interest Waivers


Credentialing examination required except
graduates of US medical school or non-clinical
medical practice
Available for physicians working full time in HPSA
or MUA or for a VA facility for a minimum of five
years
 Can
switch locations
 Can count time before filing, but not J time before H-1B

Can be specialist
Klasko, Rulon, Stock & Seltzer, LLP
Clinical National Interest Waivers
(cont’d)

Physicians can apply for permanent residence
(when EB-2 available) before completing five
years, but cannot be approved until completion

Requires letter from state or federal agency
attesting that the physician’s work furthers the
public interest
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment
(cont’d)

I-140 Petition
 1st
step for EB-1 and national interest waiver
 2nd step for PERM

Employee documents education and experience
 If
adjustment of status, file concurrently with I-485 if
quota current
 If consular immigrant visa processing, approval sent to
National Visa Center
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment
(cont’d)

I-485 (Application for Adjustment of Status
to Permanent Resident)
 Cannot
file until quota is current
 Importance of filing
Do not need to maintain visa status
 Can file for spouse and child
 Can get Employment Authorization Document (EAD)

Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Employment
(cont’d)

Can get advance parole travel document
Eliminate need to obtain visas
 Can still maintain and extend H-1B status


Can leave employer if
I-140 approved
 I-485 pending 180 days
 Similar occupation

Permanent resident upon approval
 Timing and delay issues

Klasko, Rulon, Stock & Seltzer, LLP
Questions?
Klasko, Rulon, Stock & Seltzer, LLP
For Further Information
H. Ronald Klasko, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
E-mail:
rklasko@klaskolaw.com
Telephone:
215-825-8600 (Philadelphia)
212-796-8840 (New York)
Websites:
www.klaskolaw.com
www.eb1immigration.com
www.worksite-compliance.com
www.eb5immigration.com
Blog:
http://blog.klaskolaw.com
Klasko, Rulon, Stock & Seltzer, LLP