Articles Posted in Immigrant Visas

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.

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 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.

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.”

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.”

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.

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 Department of State, Office of Visa Services, advises the public of a notable increase in fraudulent emails and letters sent to Diversity Immigrant Visa (DV) program (Visa Lottery) applicants. The scammers behind these fraudulent emails and letters are posing as the U.S. government in an attempt to extract payment from DV applicants. While the DV lottery is a genuine U.S. government program, it is important to know enough about the DV lottery to protect oneself from fraud.

Please note: (1) the DOS does not charge any fees for participation in the lottery program and (2) they also do not advise “winners” (those selected to apply for legal permanent residence) by email. Notification is made by letter only. A genuine notification carries the personal data of the applicant. It does not include blanket requests for basic personal information. Fraudulent notifications sometimes ask for such information.

The DV lottery has an application procedure for participants. If one has not submitted this application through the DOS WebSite, within the established timeframes, one cannot be selected. The DOS does not select individuals at random for this benefit. Fraudulent winner notifications are sometimes received by individuals who have not even applied for the DV lottery.