Visas and the International Postdoc, Part 2

About half the postdoctoral trainees in the United States--25,000 or so--come from foreign countries. All need visas for U.S. entry. Many obtain J-1 exchange visitor visas, which have a 3-year limit on the time the postdocs are allowed to stay in the U.S. before returning home for 2 years.

But what if returning home is inconvenient or if the research cannot be pursued in the home country? What if research will remain undone, or if the trainee is facing crucial career decisions that returning home would interrupt or in fact scuttle? What if the trainee wants to work for a few years--or permanently--in the U.S.?

The answer is that there are ways of avoiding the requirement to return by the acquisition of waivers and reclassifications. But obtaining them usually requires legal help. Here, in part two of Next Wave's three-part series on Visas and the International Postdoc, is an interview with a prominent immigration attorney, Ronald Klasko, chair of the Immigration Group of the Philadelphia firm Dechert. It was conducted by Washington science writer Wil Lepkowski.

We encourage you to read the entire interview, but if you are looking for specific information, here are the links to the answers on finding a lawyer, the return requirement for J-1 visas, the O-1 visa, and waivers.

You've been in the business of helping graduate students and postdoctoral trainees acquire changes in their visa status so that they can lengthen their stays in the U.S. or gain permanent residency. How do foreign postdocs find the right lawyer for their needs?

There are several sources available to them. First, most of their institutions have international program offices that know attorneys who do a lot of competent work in immigration law. A postdoc can usually get names from those offices. Second, names can frequently be obtained through Internet searches, although this may be the least reliable source. Third, attorneys participate in a number of immigration seminars that are offered on J-1 related subjects, many sponsored by the American Immigration Lawyers Association or by the university. Postdocs can meet attorneys that way. Finally, recommendations from friends who have successfully gone through the process can help. The key is not just to find a good immigration lawyer, but to find a good immigration lawyer who has particular expertise in these particular areas.

Do you have any questions that you think postdocs and graduate students should ask before they choose an attorney?

Several questions. What universities and research organizations do you work with or receive referrals from on a regular basis? How much experience do you have specifically in dealing successfully with J-1 waivers? Have you written articles or spoken at seminars on this specific subject?

Almost all postdocs come into the U.S. with the J-1 visa. Are attorneys needed for acquiring that visa?

No, we don't get involved in applying for these. The sponsoring institution usually does the actual application, assuming the organization has been approved by the State Department. Where we get involved, and where the complicated immigration issues come up, is that many of these people are required to return to their country for 2 years and they want a waiver, then further when they are in need of the H1-B, or working visa, and then eventually the Green Card, or permanent residency status. Many of these people eventually want Green Cards because employers or their principal investigators want to keep them longer than the J-1 allows them to stay.

Do all J-1s have the 2-year return requirement?

No. In my practice, the 2-year rule is among the most misunderstood concepts. There are lots and lots of exceptions. They only have that requirement if they are on the skills list provided by their home country government to the U.S. Department of State or have received money from their home country government or directly from a U.S. government agency. Many of these scientists are in fact funded by U.S. government grants. But these government grants are given not to them but to their principal investigator, supervisor, or institution. That does not count. Money has to be given to them directly.

What is the skills list?

The State Department asks every country to submit a list of occupations that they need, and exchange visitors in these listed occupations fall under the 2-year rule. Some countries do give the State Department a list, and some don't. Some countries list everything. China, for example, says they need everyone back. Other countries may say they need this and that occupation, but not other occupations.

Can you provide any examples where exchange visitors were told that they have a 2-year return requirement and you were able to prove they did not?

When an exchange visitor has resided for a period of time in another country--for example a Chinese national who was in Germany for 2 years--we have been able to avoid the Chinese skills list by showing he is a last resident of Germany; and Germany has no skills list. Sometimes we can show that the postdoc's actual field is different from the field listed on the IAP-66 form [Editor's note: the IAP-66 is the form prepared by the host institution that qualifies the student or postdoc for J-1 visa status] and is not on the skills list. Another example is where we prove that the source of the funding is actually private and not government.

So you tell them there are ways around the whole thing.

Yes, we are often able to prove that they really don't have a 2-year return requirement to get rid of, even though the visa and other documents say they do. But if they do have a return requirement, we deal with the 2-year rule in two ways. One way is to get rid of the return requirement by a waiver process. The second way is to try to get them another type of visa when they can't get a waiver. This second category pertains to holders of the J-1 who don't have an easy or quick way of getting rid of the return requirement and want to be able to continue working. If they have an employer who is willing to file for them, we consider an O-1 visa.

What is the O-1?

The O-1 is for aliens of extraordinary ability. It basically pertains to people who can show that they have a national or international reputation as top people in their field. The technical legal language is "sustained national or international acclaim and recognition." Now, there aren't many postdocs around who are world famous. If it really required that, then nobody would be able to get an O-1. But in fact we do O-1's all the time for postdocs and research associates.

How do you do it?

The key is to demonstrate that the person is doing important work in his or her field. To show that a postdoc is one of the top 2% or 3% of researchers in the whole world or in the U.S. is probably impossible. But at the same time, this same person may be doing extremely specific research involving a specific cancer gene that either nobody else or only two other people in the country are doing. So if you define the field as being research on that gene, then it's not too difficult to get a number of professors around the country to say that in that field of research on that one gene this guy is the best, or the only one doing something significant.

But what if the originating country wants that person back anyway?

It doesn't matter. The interest of the originating country doesn't come into play if the person qualifies for the O-1. So the first thing we look at is whether they really have that 2-year return requirement--not whether they've been told they do, but whether they really do. Then the second issue is if they do, then can we get them this O-1. And then the third issue is can we get them a waiver of the 2-year return requirement. If we can, then they can stay here forever if they want to, assuming we can get them a Green Card.

All right, but some people cannot qualify for the O-1. That means they will need a waiver. How do they get that?

There are four ways of getting that waiver. The easiest is something called a no-objection statement. If the home country's government sends a letter to the U.S. State Department saying they have no objection to this postdoc staying in the U.S., then she has a good chance of getting a waiver. Some countries give no-objection statements all the time, some of them never give it, some of them give it case by case. Many of the waivers we deal with involve China because every Chinese national is on the China skills list and China picks and chooses. China will give no-objection statement for some, they will not give it for most.

What other waiver avenues are there?

The second way of getting a waiver is something called the "interested government agency waiver." This comes from the U.S. side. It says, "we have a postdoc who is doing really important research on an NIH grant. And this research would really suffer without him and he's already made some significant process and it will all end if he leaves." In this case, we apply to the U.S. Department of Health and Human Services (DHHS) with a whole package of letters, research papers, awards, and advertisements showing how the employer was unable to replace him. We try to show why this exchange visitor is so critical to the research and how his loss would negatively affect the research. In many cases the waiver is granted, if a strong, well-documented case is presented. We also work with many other government agencies, particularly the National Science Foundation, Department of Defense, Department of Agriculture, Department of Education, Department of Energy, and Department of Commerce.

What might be the exception?

If for example, we have a Fulbright Fellow, the Fulbright Program will usually object to the waiver. Then, the State Department will have to balance the interests of DHHS or another government agency with that of the Fulbright Program.

What are the third and fourth approaches?

The third approach to obtaining a waiver is much less frequent. It's called an "exceptional hardship waiver." This one applies if the exchange visitor, the J-1, is married to a U.S. citizen or a permanent resident. If you can show exceptional hardship to the spouse or children, then you may be able to get a wavier. But exceptional hardship is an extremely difficult standard, and this waiver is hard to get. The way I put it is that they've got to make me cry. If I can't make the U.S. government cry when they read what I'm putting together, we probably don't have a good case.

The fourth type of waiver is not that common. It's called a "persecution waiver." It basically requires a foreign national to prove that he or she would be subject to persecution if returned to the home country.

How long do waivers last?

They are permanent. None are temporary.

Do you think all foreign postdocs in the U.S. ought to have an ongoing primer on visa issues?

I really think they do. Most of the program sponsors do have material available to them, and most research organizations have lawyers they refer people to. But things change constantly. The State Department and Immigration and Naturalization Service (INS) don't always agree on who has a 2-year return requirement. Some things are very unclear, but some are also very clear. A lot of this involves very detailed legal issues--legal positions that we believe are correct but not everybody knows about. Also, sometimes the INS is unaware of some of the legal issues. Sometimes the universities know more than INS. You can't get this information from a reception person at INS because they don't know nine-tenths of the legal nuances in this area.

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