Visa Lawyer Blog

Some good News about the February Visa Bulletin. The employment-based, second preference (EB2) category cutoff date moves forward by a full year, to January 1, 2010 for India and China. This is actually very encouraging for many applicant out there.

The decision to dramatically advance the cutoff dates is based on USCIS reports of low rates for adjustment-of-status (I-485) filings, despite recent EB2 cutoff date advancement. This greatly expands the number of individuals who soon will be eligible to file Form I-485 toward becoming U.S. permanent residents. Nevertheless, visa numbers could stop advancing or even retrogress very soon. The logical thing to do is act fast and file if your number is current.

It is sad to see so many qualified well educated applicants, struggling to plan a future in the US. If the priority date system is not to change in the near future, expect more qualified talent leaving our shores to Europe, Canada and Australia. They know how to welcome qualified, well educated immigrants.

On November 9, 2011, USCIS posted for comment the Draft Memorandum on EB-5 Adjudications Policy. The Memo provides clarifications on the current law and policies concerning adjudication of EB-5 petitions. American Immigration Lawyers Association (AILA) provided its comments and suggestions for the Final Memo. AILA pointed out the major issues with the Draft Memo. Attorney Ekaterina Powell from our law office has prepared this summary to address the most important AILA’s comments that hopefully will be considered by USCIS.

New Commercial Enterprise

First of all, of major concern is the definition of a “new commercial enterprise.” The Draft memorandum does not provide clear analysis on what is considered a “new commercial enterprise.” Accordingly, the Memo should be supplemented with the explanation on what business will qualify under the regulations.

The initial inquiry should be on whether the investment is in a commercial enterprise that was established after November 29, 1990. If the investment is in a commercial enterprise that was established after November 29, 1990, the requirement is met and no further inquiry is appropriate.

If the investment is made in a commercial enterprise established on or before November 29, 1990, the investor must meet one of two tests: 1) the investor must restructure or reorganize an existing business or 2) expand the business in such a way as to accomplish a 40 percent increase either in the net worth or the number of employees of the business.

Therefore, if the investor can establish that the business was created after November 29, 1990, it should end USCIS’ inquiries and the business should be deemed a “new commercial enterprise.”

Purchase of assets of another company

The second major concern is classification of the business as a “new commercial enterprise” if it purchases assets from another enterprise. The Memo as it is written now does not provide clarifications on this issue. The problems arise when the entity from which the new enterprise purchased assets was created before November 29, 1990.

The final version of USCIS Memo should include the analysis that a new commercial enterprise established after November 29, 1990 does not lose its status as a new commercial enterprise because it purchases assets from an independent company which it does not acquire and with respect to which it is not a successor in interest (assuming it does not acquire all of the rights and liabilities of the independent company whose assets have been purchased).

If there is no succession-in-interest, the new company simply cannot provide documentation for the company it purchased the assets from because it does not have an ownership relationship and, thus, does not have access to the documents of the seller.
Therefore, the Final Memo should clarify that the date that the company from which assets were purchased was established is completely irrelevant as to whether the purchasing company is a new commercial enterprise if there is no succession-in-interest.

Restructuring and Reorganization

The Final Memo shall clarify what constitutes sufficient restructuring or reorganization for the purposes of creating a new commercial enterprise as these terms have not been defined yet. At least, a change in the mission or focus of a business should also result in sufficient reorganization or restructuring.

Changed Circumstances

The Draft Memo supports the realms of the business world and suggests that at the time of removal of conditions on permanent residence, the petition may be approved if the circumstances have changed and the business has operated not in accordance with the business plan that was submitted with the original petition.

However, The Final Memo should be more specific on this point. Historically, USCIS has denied the removal of conditions petitions if there has been a material change in a project even if the investor’s money has already been used in projects and has created jobs.
In the Draft Memo, USCIS states that the removal of conditions may be successful if the investor provides documentary evidence demonstrating that, notwithstanding the business plan contained in the Form I-526, the requirements for the removal of conditions have been satisfied.
However, USCIS has not provided clear guidance on this issue and it seems like, in a situation with changed circumstances, eligibility will depend on a particular adjudicator and will be in his/her own discretion.

The proposed changes to USCIS policy will provide more clarity and will give less room to discrepancies in exercise of discretion in EB-5 petitions’ adjudication process. EB-5 adjudication policies are currently undergoing a lot of changes. Check back on our blog for the most recent updates.

Below is the story of several individuals who were able to come to America through asylum. These individuals have built families here, have jobs and contribute to America by doing their duty like any American citizen. Unfortunately, these individuals have not been able to gain permanent residency since coming to the United States....

Nassir Al-Rifahe never thought his love for America would be questioned.

As a member of the Iraqi National Congress, he worked for years to topple Saddam Hussein before being granted political asylum in the United States in 1997.

But for the last decade, while Mr. Rifahe, 57, lived quietly with his family in Texas and Minnesota, the Department of Homeland Security has refused to grant his application for a green card, instead letting the case languish unresolved.

Under a sweeping section of federal immigration law, the government considers Mr. Rifahe to have engaged in terrorist-related activity, making him ineligible to live here permanently. That the group Mr. Rifahe worked for was once supported by the United States and tried to overthrow Saddam Hussein matters little.

“It is not fair; I want to stay here,” Mr. Rifahe said. “How come they helped me before, but now they say I am a terrorist? I can’t believe this. Never would I do this.”

An estimated 4,000 cases similar to Mr. Rifahe’s are on hold around the country. Some have dragged on for years as immigration officials wrestle with how to handle people previously granted political asylum or refugee status in this country, but whose past affiliations technically bar them from permanent residency.

Many of the cases involve people who belonged to groups in their homelands once backed by Washington, immigration lawyers and human rights advocates say. Often, it is their connection to those groups that allowed the immigrants to come here in the first place.

The situation has created a conundrum for United States Citizenship and Immigration Services, which acknowledges that the individuals pose no threat to national security. But the agency says existing law would force their green card applications to be denied and has instead placed the cases on hold until special exemptions can be created.

Continue reading "Are These Individuals Really Terrorists?" »

Many Israelis were defrauded by Mr. San Klein in the past decade, he is known to be the mastermind behind the R1 visa fraud scheme.He admitted orchestrating a multi-faceted fraud scheme that included filing false tax returns and making false claims to enable aliens to obtain religious worker visas and has been sentenced to 63 months in federal prison.

The R-1 visa category is suitable for religious ministers and for persons working in a religious vocation or occupation wishing to migrate to the United States of America. Under the program, churches, synagogues and mosques can ask the gove rnment to grant visas to foreigners to fill vacant positions. The sponsoring group or the foreigner may file the application. An applicant must include letters from a sponsor attesting that he or she has been a member of its denomination for at least two years, that the applicant will fill a specific religious position and is qualified for the job. The application also must provide evidence that the sponsor is a bona fide religious organization that qualifies for nonprofit tax status.

The U.S. government issues several thousand religious worker visas each year. There are two types: temporary three-year visas, and "green cards" that allow foreigners to become permanent residents. The Homeland Security study looked only at petitions for green cards, but the report noted that the three-year visa program faces identical fraud risks. The program dates to 1990, and has been used primarily by the Catholic Church. The State Department said that statistics breaking down recipients by faith are not available, but the majority do not come from predominantly Muslim countries. The program has long been suspected of being susceptible to fraud.

Samuel Klein, 60, a resident of the Hancock Park district of Los Angeles who owned a business called Smartax, was remanded into custody after being sentenced Wednesday afternoon by United States District Judge R. Gary Klausner. Klein's wife, Zipora Klein, 59, was also sentenced yesterday, receiving a prison term of 27 months. Judge Klausner, who also remanded Zipora Klein into custody, ordered the couple to pay more than $765,000 in restitution.

This week's sentencings are the culmination of an investigation by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI), IRS – Criminal Investigation, and the U.S. Department of Education. The probe revealed that Samuel Klein filed fraudulent visa applications on behalf of clients, falsely claiming they were religious workers wanted for employment by New York religious institutions.

According to court documents, Samuel Klein filed bogus petitions for religious worker visas under the names of synagogues or Jewish community groups, claiming the religious institutions needed his clients as religious workers. In another case detailed in court documents, Samuel Klein submitted a visa application claiming an alien was needed to work for a New York company when, in truth, the alien had no plans to work for the company and did not have the qualifications claimed on the petition.

We hope this will be a lesson for other Immigration visa criminals that the government will eventually catch up.

As many of you may know the DOL has suspended issuing prevailing wage determinations for several weeks now. Such determinations are essential to start any PERM case.

On Wednesday, August 24, 2011, AILA received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, AILA has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

The following are a few questions that were brought up to the DOL in light of the recent delays, see what they responded:

Q: Could DOL permit some ETA 9089 PERM filings to be submitted before the prevailing wage is issued, and allow the employer to provide the wage determination after filing? (This was asked several times, in the context of filing without a prevailing wage determination for special handling cases, for aging out children, and for AC21 eligibility).

A: DOL’s response to this was no. The regulations require that a wage determination be issued before any ETA 9089 is filed, and they cannot waive this requirement. DOL also indicated that any ETA 9089 filed without a wage determination would likely be denied as non-compliant.

Q: Could DOL extend the validity of previously issued ETA 9141s, particularly those issued in April, May and June, which had a limited 90 day validity? Extending the validity dates could permit the employer to file a PERM application.

A: DOL stated that under the regulations, it is possible to file a PERM application after the prevailing wage expires, provided that the recruitment has begun after the wage was issued. DOL indicated that it would not extend the validity of existing PWDs.

Q: What is the status of correcting the iCERT system to include ACWIA wage data? Several occupations appear to be missing from the ACWIA wage database, which means that employers cannot use these codes on LCAs or wage requests.

A: DOL advised that it is aware of this problem but that it has tabled any solution until it has cleared the H-2B wage redeterminations.

We have also started receiving certifications filed in June. As of this writing, the DOL has not issued any announcement regarding resumption of action on PWD requests. Thus, it is too early to know if the DOL is returning to business as usual with regard to PWD requests. The PWDs we have received were requested in early June 2011. Many additional PWD requests continue to await action. We will keep you posted.

Recently, USCIS published new guidelines for the Employment Based Second Preference (EB-2) Immigrant Visa Category. In particular the new guidelines outline how Entrepreneurs can apply under the National Interest Waiver under this visa category. An Entrepreneur qualifies under this category in two ways, as a person holding an advanced degree, and a person who has an exceptional ability in the arts, sciences, or business.

First, the Entrepreneur must show that he or she is a person who holds an advanced degree or an individual of exceptional ability. Next, the Entrepreneur must show that their work is in the national interest. Although the term "national interest" is not defined by law, the case of New York State Department of Transportation has a three prong test that the Entrepreneur must meet in order to qualify. The three prongs of the test are:

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Under the first prong of the NYSDOT test, the Entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the Entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

Under the second prong of the NYSDOT test, it requires that the Entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the Entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the Entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to Entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Finally, NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the Entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the Entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The Entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the Entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Based on the new guidelines, the Entrepreneur is now an individual who may get a visa under the National Interest Waiver. They must still meet the requirements under the current case law in order to prevail on a National Interest Waiver petition, but this bodes well for many individuals seeking to take their entrepreneurial spirit and making a difference on a national level. If you are an Entrepreneur that has an idea that might be in the national interest, please contact our office for a free consultation so we can help you out. Let us hope that this new classification provides new opportunities for many Entrepreneurs out there.

USCIS Director Alejandro Mayorkas discusses on the official USCIS blog, The Beacon, how current immigration policies will spur job growth and bolster the U.S. economy. The United States has a long, rich history of welcoming innovative entrepreneurs and skilled workers into our country. These men and women fuel our nation’s economy by creating jobs, and promoting new technologies and ideas. Secretary of Homeland Security Janet Napolitano and outlined a series of new policy, operational, and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs here in the United States.

Encouraging the kinds of streamlining measures USCIS is taking today has been one key focus of the President's Council on Jobs and Competitiveness because they help ensure that America can continue to out-innovate and out-compete the world in a global economy.

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced that it will:

-Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interested Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

-Expand the Premium Processing Service to immigrant petitions for multinational executives and managers;

-Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

-Implement fundamental enhancements to streamline the EB-5 process based directly on stakeholder feedback;

-Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and start up companies.

Mr. Mayorkas is also launching "Conversations with the Director", a new series of small group meetings he will hold to discuss immigration issues important to communities around the country. The first meeting will focus on economic development and the EB-5 investor program.

With all these policy changes, this is a sign that USCIS and DHS are working to help bring more immigrants into the U.S. who can help make an impact on our economy and spur job growth. At a time where Americans are concerned about the government's debt, this is a great chance for our immigration policies to help make an impact on our debt and have an impact on other important social issues like unemployment. We will see in the coming months how these new policies shape up.

Yesterday, the House Judiciary Committee approved to go forward HR 704, the "Security and Fairness Enhancement for America Act of 2011.” With a name like that, you would think the bill was many hundreds of pages and proposed changes to the court system or at least dealt with the huge backlogs in the immigration adjudication system that were the subject of recent hearings before the Senate Judiciary Subcommittee. However, the bill, introduced by Representative Bob Goodlatte (R-VA), is little more than a page, and does nothing but cut the number of new legal immigrants to the United States by eliminating a small program known as the Diversity Visa.

The bill, sponsored by Intellectual Property Subcommittee Chairman Bob Goodlatte (R-Va.), was reported favorably to the House floor by a vote of 19-11. According to the Subcommitte, "This program is plagued by fraud and is an open door for terrorists."

For a little background information, The diversity visa program was created in 1990 to increase diversity in the United States immigrant population by providing up to 55,000 greencard visas per year. Since they were first issued in 1995, over 785,000 diversity visas have been issued. Individuals who receive a diversity visa are free to petition for greencard visas for their family members.

When sponsoring the bill, Rep. Smith stated "This diversity visa program is better known as the visa lottery since thousands of immigrants are selected at random to receive greencards. Basing our immigration system on the luck of the draw is not smart immigration policy. It’s an open invitation for fraud and a jackpot for terrorists. While a small number of people who play the lottery actually win the prize, most people lose. With the visa lottery, the American people lose since U.S. immigration policy and national security are compromised.”

Rep. Goodlatte's justification is that, "The visa lottery program poses a national security threat. Under the program, each successful applicant is chosen at random and given the status of permanent resident based on pure luck. This flawed policy is just foolish in the age in which we live. Those in the world who wish us harm can easily engage in this statistical gamble with nothing to lose. Our immigration policy should be based primarily on our national needs, security and economics and not in part on an arbitrary system, lacking even minimal checks."

Rep. Goodlatte’s justification for eliminating the Diversity Visa program is that it poses a “national security threat,” but he does not make it clear how, exactly, the Diversity Visa program is threatening. Diversity Visa immigrants pass through the same rigorous background screening process as all immigrants to the United States, and while they come from countries that send relatively few immigrants to the United States, all of those countries also send immigrants to the United States in other ways. About half of selected potential Diversity Visa immigrants, according to the State Department, come from Africa; just under a third come from Europe; about fifteen percent come from Asia; and the balance come from smaller countries in Oceania; Central and South America; and the Caribbean.

Many reasonable minds may differ about whether a program like the Diversity Visa is a good way to select immigrants, and some even believe those legal immigrants may be better selected through our other legal immigration programs for reuniting families or attracting needed skills. The program could even be reformed to require a higher skill level, or as a pilot test of new immigration selection methods, like the point system used in some countries. This bill does nothing for that debate, however.

Ultimately, Rep. Goodlatte has offered a bill which does only one thing – eliminates a legal immigration program which has allowed many good people to contribute to our social fabric. I hope others will voice their own concerns over whether eliminating the Diversity Visa is really in best interest of our national security.

We have recently won another incredible case under the National Interest Waiver Category for a renowned scientist in the field of neuropathic pain! Attorneys Ekaterina Powell and Andrew Desposito from our office did a great job in this case. Andrew provides another summary of the process for our readers.

In this second part of the National Interest Waiver series, we discuss another class of persons who qualify. As before, there are two types of individuals who may be granted a green card through the National Interest Waiver: an Alien that is a member of a profession holding an advanced degree, and an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. This article will discuss the Alien that is a member of a profession holding an advanced degree.

In order to be an Alien that is a member of a profession holding an advanced degree, one must show two things: That the Alien is a member of the professions holding an advanced degree and the Alien meets the requirements as discussed in Matter of New York State Department of Transportation, Interim Decision 3363, (Aug. 1998). If an Alien meets the requirements as set forth above, he will be granted a green card under the National Interest Waiver.

The Alien is a member of the professions holding an advanced degree

Our client that got his I-140 petition approved is a leading international expert and a pain specialist with special skills in Interventional Pain Procedures, Neuropathic Pain Management, Cancer Pain, and Palliative Cares. His research in the field of neuropathic pain treatments is unquestionably significant and is recognized on the international level. Our clients’ credentials include a medical degree from his home country, a two year study on Pain Management at a Pain Clinic, and another three years as Coordinator of that same clinic. In addition, we submitted our client’s curriculum vitae to outline their Education, Professional and Research Experience, Oral Presentations, Scientific Publications, Professional Association Memberships, Professional Development Courses, and Honors and Awards.

Another point discussed in our client’s case was the various organizations and places the individual has been invited to lecture. We demonstrated, through many exhibits, the organizations our client participated in as a member related to his field of work, as well as documents that show the various lectures and seminars our client spoke as an expert on his field of expertise.

Continue reading "National Interest Waiver Attorney - Green Card Approved for an Advanced Degree Person!" »

As Lawyers who specialize in I-601 extreme Hardship Waivers, we often hear of concerns form family members traveling to Ciudad Juarez for Visa Interview. An I-601, Application for Waiver of Grounds of Inadmissibility, is filed to permit an alien who has been denied admission to the United States to gain admission as a lawful permanent resident or fiancé(e) under certain circumstances. This waiver is based on extreme hardship to United States citizen or lawful permanent resident relatives of the alien which would result if the alien's inadmissibility cannot be waived.

Today we have an alarming message from the Consulate that we wanted to share with our readers. The U.S. Consulate General in Ciudad Juarez is issuing this Emergency Message for U.S. citizens in the state of Chihuahua (“Emergency Messages” were formerly known as “Warden Messages”). The Consulate has distributed the following message to our staff:
Mexican authorities have captured key members of the cartels active in Juarez. These successes also bring with them the potential for an increase in violence. The cartels may seek to retaliate and increase their attacks against rival cartel members, Mexican law enforcement and/or the public in general.

Information has come to light that suggests a cartel may be targeting the U.S. Consulate in Ciudad Juarez or U.S. Ports of Entry. In the past, cartels have been willing to utilize car bombs in attacks. We ask American citizens to remain vigilant. If the Consulate should receive any credible threat information that provides a specific time and place, that information will be disseminated immediately. U.S. citizen victims of crime or their families are urged to contact the American Citizens Services unit of the Consulate for advice or assistance.

On July 11, 2011, the Ombudsman's Office recommends that USCIS take the following actions to improve the processing of employment authorization documents (EAD):

1. Establish methods at local offices to facilitate immediate resolution;
2. Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
3. Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
4. Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
5. Issue replacement EADs with validity dates beginning on the date the old EAD expires.

In the recommendation, the Ombudsman identifies several ways to implement these recommendations that build upon existing USCIS processes. We welcome the proposals and will keep you posted with any news.

We have recently won an incredible case under the National Interest Waiver Category for a challenged athlete who is also a motivational speaker. Attorney Andrew Desposito did a great job in this case. Andrew provides a great summary of this process for our readers.

The National Interest Waiver is a great way to bring an individual into the United States whose work can have an impact that is in the national interest. To apply for a National Interest Waiver, an I-140 petition must be submitted along with the proper documentation that meets the requirements of one of two categories. There are two types of individuals who may be granted a green card through the National Interest Waiver: an Alien that is a member of a profession holding an advanced degree, and an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. This article will discuss the Alien who has commanded a salary, or other remuneration for services, which demonstrates exceptional ability.

In order to be an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability, one must show four things: That the Alien commanded such a salary demonstrating the exception ability, evidence of membership in a professional association related to such services, evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations, and the Alien meets the requirements as discussed in Matter of New York State Department of Transportation, Interim Decision 3363, (Aug. 1998). If an Alien meets the requirements as set forth above, he will be granted a green card under the National Interest Waiver.

Evidence of a salary demonstrating exceptional ability

Our client that got his I-140 petition approved is a motivational speaker/athlete. His accomplishments during his life gave him the opportunity to compete as a Challenged Athlete and be a motivational speaker, speaking before numerous schools, youth groups, churches, and business organizations. This individual was paid for speaking before these various groups because all of them recognize him as an exceptional individual for everything he has accomplished in his life. He rose up in a poor country where disabled individuals were once left to die and became a spokesperson and advocate for the disabled.

By showing his country people that disability does not mean inability, everyone who came in contact with our client became instantly aware that they were in the presence of person who was determined to prove to them he is the same as them. Many who know his story believe that it will inspire others to achieve the same level of success through motivation and maintaining high ideals. He continues to be invited to speak before numerous organizations to advocate for the disabled and to show how disabled individuals continue to make an impact in their communities through their own efforts.

Evidence of membership in a professional association related to such services

Our client demonstrated that he was involved in a professional association that solicits donations and plays an active role in the community. The organization is a leading international humanitarian development organization using the transformative power of sport and play to build essential skills in children and thereby drive social change in communities affected by war, poverty and disease. This organization is directly related to the values that our client has consistently demonstrated throughout his professional life as a motivational speaker/athlete. The involvement of our client in such an organization met this requirement since he was involved in the organization by advocating on its behalf.

Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

Probably the most important of the three elements is showing evidence of a person’s achievements and significant contributions by other individuals, government entities, or professional businesses. In our particular case, our client is a truly exceptional individual. He has been recognized by the Challenged Athletes Foundation, awarded the prestigious Casey Martin Award by Nike, awarded the Arthur Ashe Courage Award at the ESPY, and has met the President of the United States and the King of his home country. His documentary was also narrated by Oprah. In addition to these awards and recognition for his significant contributions, many people have written letters thanking him for coming to their schools, youth groups, churches, and other organizations to speak and inspire many people with his story. There was no doubt that the evidence provided for our client showed that he has achieved recognition for his significant contributions to his industry as a motivational speaker/athlete.

Meeting the Matter of New York State Department of Transportation Threshold

In addition to the above requirements to demonstrate that the person is in the national interest, the individual must also meet the requirements as set forth in the case of Matter of New York State Department of Transportation. There are three elements in the case that need to be met. First, the benefits of the individual’s proposed employment will be national in scope. Second, the individual’s work as an athletic spokesperson qualifies him as “significantly above” that which is necessary to prove the “prospective national benefit” required of aliens seeking to qualify as “exceptional.” Third, the national interest would be adversely affected if a labor certification were required in this case AND a national interest waiver is NOT being sought based on a shortage of qualified workers in the field.

The benefits of the individual’s proposed employment will be national in scope

We demonstrated that the individual’s proposed employment will be national in scope. It has intrinsic value because as a motivational speaker/athlete, he inspires people to lead great lives. As an ambassador for disabled individuals, he shows the non-disabled that no physical limitations should hold a person back and prevent them from accomplishing great things. For disabled individuals, he shows that they can lead great lives and do great things if they put their mind to it and to not let their disability hold them back.

Our client spoke at many events and before many groups all over the country, continuing to inspire them with his story of the adversities he overcame. To come from a country where children born with disabilities are exposed to die, and then to rise up from that to become the first disabled person to meet the king of his country, as well as our own President of the United States, is such an incredible accomplishment since it gives others the same hope to achieve the same.

For National Interest Waivers of this kind, it is important to make the case as clear as possible that the individual’s work is in the national scope through the organizations the individual will be involved in. We showed that our individual was involved in such an organization that promoted his ability to continue to perform as a disabled athlete and to help him speak before various groups, organizations, schools, and other individuals. By showing that our individual was involved with an organization that allowed him to do his work in a national capacity, the far-reaching benefit to the United States was made evident by his accomplishments.

The individual’s work as an athletic spokesperson qualifies him as “significantly above” that which is necessary to prove the “prospective national benefit” required of aliens seeking to qualify as “exceptional”

To demonstrate how an individual’s work is in the prospective national benefit, we showed how our client’s work had made a direct impact on various communities. We had our client bring in letters from individuals from various communities, schools, and businesses to show the impact his work had towards the national benefit. In addition, because our client spoke before children in schools, children who wrote many letters telling our client how inspirational he was, we also submitted those letters to show the direct impact on those children his motivational speeches had on them. Showing that our client’s work has such a direct impact was necessary to making such a strong case for him.

How many other motivational speakers get letters from children and adults from all over the country expressing their gratitude, support and belief in the message that he shares? To have such a far-reaching impact proves that his work is in the prospective national benefit required of someone seeking to qualify as exceptional and that it is “significantly above” those who seek to be qualified as “exceptional”.

The national interest would be adversely affected if a labor certification were required in this case AND a national interest waiver is NOT being sought based on a shortage of qualified workers in the field

This element is perhaps the easiest element to meet. In the case of our client, we simply referred back to the various awards for his work, his invitation to speak at various events for many groups, and his strong communication skills and professional experience meet this requirement. By incorporating the letters of recommendation and the other documents demonstrating our client’s extraordinariness, it goes to show that labor certification should not be required in this case. Also by incorporating those letters and documents, it shows that the national interest waiver is not based on a shortage of qualified workers, since our client is truly a one-of-a-kind individual.

The National Interest Waiver Secured

So in the end, there are six elements to prove that your client is an individual whose work is in the national interest. The extraordinariness of the individual will be unique in each case in that the individual must show that their work has a far-reaching effect in the U.S. Our client’s work shows how he is in the national interest because of how many lives he has touched. Through his story, his performance in athletics, and his efforts to raise the awareness of individuals with disabilities, our client continues to inspire people with his efforts and motivational speeches. For your own prospective National Interest Waiver you should ask yourself, “How extraordinary is my client?” The more extraordinary your client is, the better a case you will have.

It was a mostly sunny day here in San Diego as the AILA conference entered its second Day. Lots of meetings with government officials and several open forums. I will provide a few points from the DOL open forum head by Bill Carlson, Dept. of Labor, Foreign Labor Certification.

This open forum included a summary by the DOL regarding immigration-related filings. The key points of the DOL summary are explained here for the benefit of our readers.

The DOL started the 2011 fiscal year with speedy adjudications of PERM cases, currently they are working on April 2011 cases. As for Audited cases, the current processing time is September 2010. Finally, cases pending Appeal are currently at February 2008. The DOL was able to reduce its previous backlog by almost half, and the goal is to become even more efficient by 2012.

The DOL reports a %63 increase in PERM filings since 2010, an impressive number by itself. This is a sign that employers feel more confident as the job market slowly rebounds. At the same time Mr. Carlson reported a %30 increase in Audits and this number is expected to increase as well. %25 increase in Appeals filed this past year and finally a %40 increase in cases under review.

An interesting update from Mr. Carlson indicates that %25 of the PERM cases filed in the past year were non STEM science, technology, engineering, or math (STEM) cases, this means that they were cases that either do not require a degree or a degree with no or little experience.

Also reporting 800-1000 cases being subject to supervised recruitment, %70 of those cases resulted in denials. The increased audits and supervised recruitment is consistent with our experience at our law firm.

The ICERT portal is getting better and most of the problems have been resolved. There are 11,000 icert employers and the website reports 26 Million daily visitors. Not bad for DOL!!

Currently there are less than %12.5 LCA denials in the system as opposed to almost %65 last year. The main 2 reasons for denials these days: 1. FEIN non ability to verify. 2. Issues with the prevailing wage. It is not taking 48 Hours to verify FEIN's and obtain most LCA certifications.

Lawyers were hoping to receive more answers from the DOL representatives on PERM issues with recruitment, reasons for denials and inconsistency in adjudications. We didn't get as much as we expected. Hope to report more updates as the conference continues.

The Department of State has released the new visa bulletin for July 2011 on June 9, 2011 which continues to bring cheers to Chinese and Indian nationals whose Priority Dates get benefited.

For the month of July 2011, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward nearly five months for Chinese nationals (from October 15, 2006 to March 8, 2007), and also moved forward nearly five months for Indian nationals (from October 15, 2006 to March 8, 2007). In the EB-3 category, the cut-off dates moved forward from May 15, 2004 to July 1, 2004 for Chinese nationals and moved forward from April 22, 2002 to May 1, 2002 for Indian nationals.

For the month of June 2011, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward more than two months for Chinese nationals (from August 1, 2006 to October 15, 2006), and moved forward more than three months for Indian nationals (from July 1, 2006 to October 15, 2006). In the EB-3 category, the cut-off dates moved forward from April 15, 2004 to May 15, 2004 for Chinese nationals and moved forward from April 15, 2002 to April 22, 2002 for Indian nationals.

We will keep you updated on the recent developments on the Employment base Visa Bulletin.

U.S. Citizenship and Immigration Services (USCIS) today proposed significant enhancements to the administration of the USCIS Immigrant Investor Program, commonly referred to as the EB-5 Program—transforming the intake and review process for immigrant investors as part of the Obama administration’s continued commitment to improve the legal immigration system and meet our economic and national security needs for the 21st century.

The EB-5 Program makes 10,000 visas available annually to immigrant investors who invest in commercial enterprises that create at least 10 U.S. jobs. EB-5 investors may petition independently or as part of a USCIS-designated Regional Center.

“Congress created the EB-5 Program in 1990 to attract investors and entrepreneurs from around the globe to create jobs in America,” said USCIS Director Alejandro Mayorkas. “We are dedicated to enhancing this program to ensure that it achieves that goal to the fullest extent possible.”

USCIS is proposing three fundamental changes to the way it processes EB-5 Regional Center filings. First, USCIS proposes to accelerate its processing of applications for job-creating projects that are fully developed and ready to be implemented. USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service, which guarantees processing within 15 calendar days for an additional fee.

Second, USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 Program requirements. EB-5 Regional Center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and quickly address questions or needs related to their applications.

Third, USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 Regional Center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

This proposal will be online until June 17, 2011, for public comment—providing stakeholders an opportunity to offer feedback on the proposed changes to the administration of the EB-5 Program.

We will keep our readers posted.

Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, informed previously of a dramatic reduction in the use of EB-1 numbers.

He stated:

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

According to Mr. Oppenheim, the fall-off in demand for EB-1 numbers began in October 2010.

Charlie Oppenheim discussed scenarios for EB-2 movement in the coming months. In preparation of the May 2011 Visa Bulletin, DOS will consider the approximately 12,000 unused EB-1 numbers that will "spill-down" to EB-2, EB-2 demand and possible unused numbers, and will consult with USCIS on its processing potential. A quick look by DOS at this point indicates that there is the possibility for greater advancement of the India EB-2 category than had earlier been thought.

Doing so will give DOS better visibility into EB-3 upgrade demand in the pipeline, and will better ensure that all visas allowed annually are used. However, a rapid advance could spur a surge in demand that could impact the cut-off dates later in the year. The May Visa Bulletin, generally issued mid-April, will contain a discussion of visa availability projections for the remainder of the year.

We will keep you posted with more information.

This just came in, Charlie Oppenheim, the Chief of the U.S. Department of State's Immigrant Visa Control and Reporting Division, has confirmed a dramatic reduction in the use of EB-1 immigrant visa numbers and the resulting favorable effect on the EB-2 category for immigrant visas chargeable to India.

Due to a consistent reduction in demand since October 2010 for EB-1 immigrant visa numbers, the otherwise unused numbers will "drop down and be available for use in the EB-2 category." According to Mr. Oppenheim's comments, that could mean that a potential 12,000 additional numbers will be available to the EB-2 category. This situation will most likely result in an advance of the India EB-2 cut-off date for May's Visa Bulletin. The reason for this effect on the EB-2 category is that "otherwise unused numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates."

We will keep you posted.

A new bill — introduced by Senators John Kerry, a Massachusetts Democrat; Richard Lugar, an Indiana Republican; and Mark Udall, a Colorado Democrat — aims to give two-year visas to foreign entrepreneurs if they secure at least $100,000 in financing from qualified investors. After two years, the start-up must have at least five employees and $500,000.

The new legislation provides visas to the following groups under certain conditions:

1. Entrepreneurs living outside the U.S.—if a U.S. investor agrees to financially sponsor their entrepreneurial venture with a minimum investment of $100,000. Two years later, the startup must have created five new American jobs and either have raised over $500,000 in financing or be generating more than $500,000 in yearly revenue.

2. Workers on an H-1B visa, or graduates from U.S. universities in science, technology, engineering, mathematics, or computer science—if they have an annual income of at least $30,000 or assets of at least $60,000 and have had a U.S. investor commit investment of at least $20,000 in their venture. Two years later, the startup must have created three new American jobs and either have raised over $100,000 in financing or be generating more than $100,000 in yearly revenue.

3. Foreign entrepreneurs whose business has generated at least $100,000 in sales from the U.S. Two years later, the startup must have created three new American jobs and either have raised over $100,000 in financing or be generating more than $100,000 in yearly revenue.

The investor must be a qualified venture capitalist, a “super angel” (U.S. citizen who has made at least two equity investments of at least $50,000 every year for the previous three years), or a qualified government entity.

The really good news is that this enables foreign students and workers who are already in the U.S. to qualify for a visa.

There’s a growing concern in the technology community that the country’s immigration policies are keeping talent out, at a time when China and other emerging markets are becoming more attractive. The bill has the support of more than 160 industry investors, including Brad Feld, who started the Foundry Group; Fred Wilson, a Twitter investor; Reid Hoffman, the founder of LinkedIn; and Shervin Pishevar, an angel investor.

Let's support the Bill and make it a reality.

Here is the latest from the American Immigration Lawyers Association on the Visa Waiver Denials issue.

Following reports from AILA chapter USCIS liaisons that a favorable resolution on the question of adjustment eligibility for Visa Waiver Program (VWP) admittees has been reached, AILA Liaision has confirmed that USCIS HQ has instructed the field that USCIS retains jurisdiction to adjust an alien who was admitted under the VWP, whether or not the adjustment application was filed during the alien's 90-day period of admission. Follow our Blog for more info.

This recent update comes in a time when the San Diego filed office continues to deny applications of Visa Waiver overstays. I expect the new policy to be implemented in San Diego soon as well.

Mr. Skokos is, by all accounts, an accomplished security consultant. But the Department of Homeland Security doubts he is at the very pinnacle of his profession, so accomplished the world over that Mr. Skokos, a Canadian citizen who lives in Las Vegas, merits a special visa to live permanently in the United States. Nobody disputes that Nikolaos Skokos is adept at what he does, which is keeping unruly crowds away from Celine Dion, the super star singer.

The United States Court of Appeals for the Ninth Circuit, which normally sits in San Francisco but held a special session in Phoenix. After hearing arguments in the Skokos case, a three-judge panel took the issue under advisement.

There are numerous ways foreigners can petition to live in the United States, including random visa lotteries and asylum applications citing a risk of grave harm back home. Mr. Skokos is seeking to stay through a relatively small program that allows “aliens of extraordinary ability” — whether they are scientists, artists, athletes or even security consultants — to become permanent residents.

The EB1-EA green card is for aliens of extraordinary ability engaged in the arts, sciences, business, education or athletics. No job offer or labor certification is required. An EB1-EA petition may be filed simultaneously with another green card application. One petition may be approved faster than the other and can offer additional protection if one petition should be denied while another is approved.

In order to qualify for the EB1-EA, the applicant must have won a Nobel Prize OR show documentation in three of the following areas:

* Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
* Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
* Published material about the alien in professional or major trade publications;
* Evidence that the alien is a judge of the work of others in the field;
* Evidence of the alien’s original contributions of major significance to the field;
* Authorship of scholarly articles;
* Display of the alien’s work at artistic exhibitions or showcases;
* Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
* Evidence that the alien commands a high salary in relation to others in the field; or
* Evidence of commercial success in the performing arts.

For whom is an EB1-EA Green Card appropriate?

Foreign nationals who have received national or international acclaim for outstanding achievements in Arts, Sciences, Education, Business or Athletics and their immediate family members.

What are the requirements for obtaining an EB1-EA Green Card?

Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who has risen to the top of his or her field of endeavor. To be considered as an alien with extraordinary ability, the alien must have sustained national or international acclaim in the field of science, art, education, business or athletics, which must be recognized in the form of extensive documentation. The alien must be seeking to enter the United States to continue work in the field, and the entry of such alien must substantially benefit prospectively the United States.

Although no offer of employment (including labor certification)Â is required, for aliens with extraordinary ability the alien must include with the petition convincing evidence that he or she is coming to continue work in the area of expertise.

Mr. Skokos said he was a security consultant to the stars, a top-notch professional trusted to keep V.I.P.s like Ms. Dion out of harm’s way. “The quality of Skokos’ service and expertise in the field of celebrity security is so superior that it constitutes an original contribution of major significance in the field,” his lawyers argued in court filings that likened him to a famous athlete who breaks records.

I think is a tough one to decide. This is very unusual for an EB1 case, but with the sufficient evidence to meet that standard he may well be able to win this on Appeal. It seems that his lawyer is focusin on the background of the client as opposed to Mr. Soko's and that could be a problem. We had several unusual EB1 cases that were approved, but of course every case is different and every case is reviewed by a different officer. Good Luck!!