Articles Posted in EB-2

In this video attorney Jacob Sapochnick discusses how to file the perfect PERM application.

What is PERM?

The Program Electronic Review Management (PERM) is the system used by immigration to process labor certifications, which is the first step certain foreign nationals must take in order to obtain an EB-2 or EB-3 visa immigrant visa.

As part of the PERM process, the petitioning employer must go through a series of recruitment activities to test the labor market before filing a labor certification application. If, during the recruitment process, the employer finds that there is not a sufficient number of able, qualified, and willing applicants, whether U.S. citizens or permanent residents, then the employer can submit a PERM labor certification application.

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In this video attorney Jacob Sapochnick discusses an EB-2 National Interest Waiver success story involving a client who was able to obtain a green card without an employer based on his background as a foreign national with an exceptional ability.

The EB-2 category allows a person to apply for a green card without an employer, as long as certain criteria are met.

* Criteria

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

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In this video attorney Jacob Sapochnick discusses what happens at an employment-based green card interview. Employment-based green card interviews became mandatory pursuant to USCIS policy in March of 2017.

It was not until the President issued an executive order on March 6, 2017 that USCIS began to require in person interviews for employment-based green card applicants.

The President’s executive order broke the agency’s long-standing policy of waiving in-person interviews for employment-based green card applicants, who were previously considered low risk applicants.

In keeping with the executive order, all applicants who have filed for adjustment of status, on or after March 6, 2017, on the basis of employment, must attend an in-person interview with USCIS. Derivative family members must also be present at the interview.

Employment-based adjustment of status is where an individual qualifies to apply for permanent residence based on an underlying employment visa category such as EB-2 or where the foreign national has an approved National Interest Waiver.

What happens during these interviews?

At the interview, the immigration officer will review the foreign national’s job description as it appears on the original Form I-140, to determine whether the applicant is still doing the same work or whether there has been a significant change in employment.

If the applicant is no longer working in the same or a similar position, the applicant must explain why.

Immigration officers are also closely scrutinizing federal income tax returns filed by applicants to determine whether the foreign national has engaged in unauthorized employment. Engaging in unauthorized employment will likely result in a denial of the adjustment of status application.

National Interest Waiver

In the case of adjustment of status based on an approved national interest waiver, the immigration officer will want to know whether the applicant has done what they promised to do in keeping with the original Form I-140 to ensure that the applicant has not engaged in fraud to obtain immigration benefits.

Please contact us at jacob@h1b.biz if you have any questions.

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In this video, attorneys Jacob Sapochnick and Marie Puertollano discuss recent immigration updates regarding the calculation of unlawful presence for F-1 international students and other topics.

Overview:

Memorandum Policy Updates for F-1 Students

Per a new policy memorandum released by USCIS, if you are a student who is out of status, you will begin to accrue unlawful presence on August 9th. Students have at least 5 months to file a reinstatement to avoid falling out of status and accruing unlawful presence.

What is happening with DACA?

On August 3, 2018, a federal judge from the United States District Court for the District of Columbia upheld a decision from the lower courts, ordering the complete restoration of the Deferred Action for Childhood Arrivals (DACA) program. This new ruling gives the Trump administration a 20-day deadline to either implement the complete restoration of the DACA program or file an appeal. The Trump administration plans to appeal the decision. In a separate lawsuit filed by Texas and other states, a judge will hear arguments challenging the restoration of the DACA program. A decision in that case has not yet been made. We will notify our readers once a decision has been made.

For the moment, DACA holders may continue to seek a renewal of their DACA benefits, but new requests for DACA will not be accepted.

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In this post, we discuss how you can get a green card through your employer.

Overview:

What does it take to get a green card through a job offer?

There are many ways a foreign national can obtain a green card for example by starting a company in the United States, as an entrepreneur, or demonstrating that they are a person of exceptional ability. However, the most common way to obtain a green card is to obtain a green card through a job offer. Essentially being sponsored by the employer that they are currently working for in the United States or their future employer. This process involves several steps:

  1. The Employer Must Commit to Green Card Sponsorship

The employer must commit to giving you a permanent job offer and be willing to support you in the green card process from start to finish. This is because the employer must not only sign the forms required to petition for the worker’s green card but must also foot the bill including the immigration fees and attorney’s fees. If an employer does not understand his responsibilities in filing for the worker’s green card, delays can result, and in some cases an employer may abandon the green card process altogether. It is very important for an employer to be aware of their obligations at the outset of the application process.

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In this video attorney Jacob J. Sapochnick discusses the new decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) handed down by the USCIS Administrative Appeals Office (AAO) 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 new decision reached in Dhanasar, will invalidate and replace the three prong-test established in the prior AAO landmark decision reached in Matter of New York State Department of Transportation (NYSDoT), a case which governed the adjudication of national interest waivers since 1998.

The new three-prong test established by Matter of Dhanasar is a more flexible standard that will allow a broader population of foreign nationals in the EB-2 category to qualify for the discretionary national interest waiver. Under the new test, the EB-2 petitioner must meet all criteria established by the new test by a preponderance of the evidence. USCIS must determine whether on the whole the petitioner demonstrated by strong evidence that the requirements for the discretionary waiver were met.

The NEW three prong-test established by Matter of Dhanasar is as follows:

  1. The foreign national’s proposed endeavor must have both substantial merit and national importance. Dhanasar indicates that under this first criterion, a wide number of employment fields may qualify for a discretionary waiver such as: business, entrepreneurialism, science, technology, culture, health and education.  Dhanasar does not require that the petitioner show that the endeavor will bring immediate or quantifiable economic benefit to the United States. Providing such evidence however may help meet the preponderance of the evidence standard to the petitioner’s benefit.  Under this criterion, the petitioner is still required to show that the proposed endeavor has “national importance,” or is “national in scope” as in Matter of New York State Department of Transportation. Endeavors that may be considered as being national in scope are those that have a significant potential impact for job creation or substantial potential for economic growth, and which are focused in an “economically depressed area” such as an area of unemployment, or economically disadvantaged region.
  1. The foreign national must be well positioned to advance the proposed endeavor.This criterion will be analyzed by assessing the foreign national’s education, skills, knowledge and proven record of success in related or similar efforts. Other ways in which this prong can be proven is by providing a model, diagram, or plan for future activities, evidence of progress in reaching the endeavor, and evidence demonstrating interested stakeholders. The petitioner does not need to assess whether the endeavor will succeed.
  1. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. In assessing this prong, the endeavor’s importance will be weighed against the national interest and be based upon the overall benefit the United States will receive from the foreign national’s contributions. USCIS may also consider other factors to determine whether granting the discretionary waiver would be beneficial to the United States taking into consideration whether there are any qualified U.S. workers who can undertake the endeavor, and whether there is a sufficient national interest to justify a waiver of the job offer and labor certification requirement.

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If you have questions about this new decision contact us for a free consultation.

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