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On December 27, 2016 in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) handed down a groundbreaking decision which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”

The national interest waiver is a discretionary waiver of the job offer and labor certification requirement made possible by subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act. This section of the INA states that the Secretary may, when it deems it to be in the national interest of the United States, “waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”  In addition to meeting a three-prong test of eligibility, to obtain a national interest waiver, the foreign national must be a member of a profession holding advanced degrees or their equivalent or prove that “because of their exceptional ability in the sciences, arts, or business they will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Without this discretionary waiver, EB-2 applications must be accompanied by a labor certification and their employer must go through the process of advertising the position to prove to immigration that there are no other applicants who are qualified, willing, and able to fill the position that the foreign national is expected to fill. Employers must also meet prevailing wage requirements as established by law. Establishing the national interest waiver in other words made it easier for qualifying foreign nationals in the EB-2 category to skip the job offer and labor certification requirement, streamlining their path to permanent residency.

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Do’s and Don’ts

If you are considering applying for a temporary visitor visa to travel to the United States for purposes of leisure or to receive temporary medical treatment, there are several things you should be aware of. First, you should understand what you can do while on a temporary visitor visa and what you cannot do. You may travel to the United States on a visitor visa if your visit will be temporary. The proposed visit must be either for recreational purposes such as to visit your friends and relatives in the United States, receive medical treatment, attend a short course of study related to the nature of your trip, or to engage in activities of a fraternal, social, or service nature. You may not enroll in a course of study that exceeds your authorized duration of stay of is unrelated to the nature of your trip, and you may not seek employment during your stay. If approved, a visitor visa is generally authorized for a 6-month period which may be extended for an additional 6 months by filing Form I-539 Application to Extend/Change Nonimmigrant Status.

Does your country participate in the visa waiver program?

Before applying for a visitor visa , you should verify whether you are a citizen of a country that participates in the visa waiver program. Presently 38 countries participate in the visa waiver program, as shown below.

Andorra Hungary Norway
Australia Iceland Portugal
Austria Ireland San Marino
Belgium Italy Singapore
Brunei Japan Slovakia
Chile Latvia Slovenia
Czech Republic Liechtenstein South Korea
Denmark Lithuania Spain
Estonia Luxembourg Sweden
Finland Malta Switzerland
France Monaco Taiwan
Germany the Netherlands United Kingdom
Greece New Zealand

If your country of citizenship participates in the visa waiver program, you may not need to apply for a tourist visa at a US Consulate or Embassy abroad. If you have been previously denied a United States visa, the Electronic System for Travel Authorization (ESTA) will automatically deny your ESTA submission and you will not be eligible to travel under the VWP even if your country participates in the program. Note: The House of Representatives and the Senate is presently in talks to approve a bill that will block individuals who have traveled to Syria, Iraq, Iran, or Sudan during the last 5 years from using the visa waiver program.

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It is a pleasure for our law office to introduce associate attorney Nadia Galash to our readers

Bio: Nanadiadia Galash has been a California licensed attorney since 2009 and has been practicing immigration law since 2011. Nadia Galash specializes in adjustment of status/permanent resident processing; citizenship; deportation and removal proceedings before Immigration Court; law and motion work; and immigration appeals. Her practice although limited also includes criminal defense and family law matters.

Nadia is a Russian attorney with 3 children. In her free time she enjoys yoga and meditation.

The Law Office of Jacob J. Sapochnick is delighted to introduce associate attorney, Ms. Ekaterina Powell,  for our second staff spotlight.

Ms. Powell has worked for our firm since June 2010 and is one of six attorneys working in our law office. Ms. Powell specializes in various family-based, investment-based, and employment-based immigration matters. Ms. Powell’s specific focus of work is on nonimmigrant and immigrant work and investment visas, extraordinary ability petitions, national interest waivers, EB-5 investment petitions, waivers of inadmissibility, VAWA cases, H-1B/LCA compliance matters, government worksite audits and investigations, as well as complex requests for evidence, motions and appeals.

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Bio: After receiving her law degree in Russia in 2007, Ms. Powell decided to make California her permanent home. Within only three years of immigrating to the U.S., Ms. Powell graduated from an American law school and became a California licensed attorney.

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Although our practice deals solely with immigration law, many of our clients are also interested in family law services, for the purposes of terminating a marriage or to go through the process of an international adoption. We have the distinct honor of inviting a guest writer for today’s blog post.

Getting married soon? Family law Attorney Zach Wallin will teach you why a prenuptial agreement is not just for celebrities.

TOP 5 REASONS YOU MAY NEED A PRENUPTIAL AGREEMENT

It is nice to be recognized by the media from time to time. The American Bar Journal is taking an interest in Immigration law, in the February issue they feature our office and the unique H2A practice we operate.

H-2As are used by seasonal agricultural workers, who must prove that (a) they have residences in other countries they have no intention of abandoning, and that (b) they will be in the United States no longer than eight months. The ABA Journal is read by half of the nation’s 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. We are honored.

Read the article here

On January 8, 2008, I appeared on the Rick Amato Show on radio station KCBQ 1170AM. Based in San Diego, California, The Rick Amato Show broadcasts from The Edge of America™. The Show exposes issues, raises awareness and often makes a difference in the lives of people during times of injustice. I will be the regular legal analyst on immigration issues on this show and will appear on a monthly basis or as issues arise. I am excited to be part of this great Talk Show.

Rick Amato and I spent the first hour of the show (almost, you can skip the first 5 minutes) talking about immigration law, the H2B visas crisis and the New Hampshire primary. I discussed the impact of Immigration on the elections and how the different candidates view the immigration issues. Listen to the podcast from the link Below.

Click Here to listen

The up coming New Citizenship Test is generating q lot of interest and anxiety on the part of future applicants. I was interviewed by Fox 6 news last week about this subject and the report aired last night on the 10pm news edition.

Click here to see the report and read the article on the station’s website