EB1 Requirements

Documentation for EB1 Requirements

The EB1A green card is for aliens of extraordinary ability engaged in the arts, sciences, business, education or athletics. Many scientists, post docs, and PhD students utilize the EB1A category to self sponsor their permanent residency as no job offer or labor certification is required. The legal standard for the EB1A category is codified in INA Section 203(b)(1)(A) and states that how an applicant may qualify for EB1A classification.  The EB1 requirements are:

  1. the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,

  2. the alien seeks to enter the United States to continue work in the area of extraordinary ability, and

  3. the alien’s entry into the United States will substantially benefit prospectively the United States.

8 CFR Section 204.5(h)(3) states the EB1 requirements for how an applicant can show sustained national or international acclaim:

A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award), or at least three of the following:


(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;


(ii) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;


(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;


(iv) Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;


(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;


(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;


(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;


(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;


(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or


(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.


8 CFR Section 204.5(h)(5) discusses the absence of a job offer requirement:

No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.

Over the years, there have been a variety of cases that made it into federal court which has allowed the judiciary to provide guidance and rules on how applicants can meet the EB1 requirements. In 1994, a federal district court ruled against USCIS when denied an EB1 petition filed by an NHL player and stated that published material about an alien is sufficient so long as there is “published material about [him] in professional or major trade publications or other major media.” Later in 1995, the court held in Racine v. INS that published articles about an applicant do not need to state that the applicant is “one of the best in his field.” Many other court cases followed since then but the court in Kazarian v USCIS offered the most sweeping review and provided major guidance that was adopted by USCIS.

Kazarian adopted a two part analysis which puts the onus on the applicant to establish that they meet three of the 10 criteria set forth in 8 CFR §204.5(h)(3)(i)-(x). Once this is established, USCIS will perform a “final merits determination” analysis to determine whether or not the applicant truly has “sustained national or international acclaim.”

Many immigration lawyers, myself included, feel the final merits determination to be a requirement contrary to any reasonable reading of the statutory language but multiple courts since Kazarian have upheld this reading of the law and USCIS, itself, has embraced it as well so we’re Kazarian defining the EB1 requirements. Because the final merits analysis is completely subjective and is open to a different interpretation by different service centers and different USCIS officers it is very important to present a structured case tailored to what USCIS wants to see. Our office has handled thousands of immigration cases and we have posted thousands of approval notices on our web site to back up that claim. We know what USCIS wants to see in this final merits determination and we can help you win your case. Send us a copy of your CV or give us a list of your accomplishments and we can help you win your green card through the EB1A category.

Athlete Visa and Athlete Green Card Options

For foreign nationals who wish to come to the United States to work or perform as an athlete in sports like football, basketball, hockey, MMA, tennis, golf or in other competitions, there are several different visa and green card options to be found.  Typically, the most difficult part of the process is finding sponsorship but, fortunately for you, I can tell you several ways to get around that issue to perform in the US legally.

Athlete Visa Options

Option 1 – The B1 Visa.  The B1 visa, also known as a business visa, can be used by amateur athletes “competing in an athletic event for which they will receive no payment, other than incidental expenses” and by professional athletes “who receive no salary or payment other than prize money.”  This is clearly not the best option for an athlete who wishes to remain in the US for a longer term as this visa is limited to a six month duration and typically only granted for the exact sporting event period which can be just a couple weeks.  Also, payment is limited to prize money or incidentals.  However, it does not require sponsorship and you do not have to file a petition to USCIS for approval.  The application for a visa can be made at the Embassy and the process is very quick though not always simple to get approved.

Option 2 – The H2B Visa.  The H2B is a seasonal worker visa.  It can be used by athletes to perform in any sport that is seasonal, such as basketball or hockey.  However, for sports that are played year round, this visa type will not be an option.  The H2B visa required a US employer to sponsor the athlete and even more than that, the employer is required test the market for potential employees, run advertisements and promise to pay the “prevailing wage” for the job.  Then the employer must file applications with both the US Department of Labor and USCIS and get approvals from both before a visa application can be made at the Embassy.  Another benefit is that the H2B visa holder can bring his or her spouse or children along with an H4 visa.  The process is slower and cumbersome and you must stay aware of the H2B visa cap which mandates that only 66,000 H2B visas be issued each fiscal year.

Option 3 – The O1 Visa.  The O1 visa is limited to foreign nationals with “extraordinary ability.”  This basically means that this category is reserved for accomplished professional athletes.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  Having a sports agent as a sponsor for your O1 visa is ideal for golf, tennis or other individual sports players that are going to play at multiple different sports events or tournaments.  Unlike the H2B visa, there is no wage requirement and there are no required tests of the labor market.  The employer or agent will file a petition with USCIS and once that is approved, an application for a visa can be made at the Embassy.  A big benefit of this visa type is the athlete can bring a spouse and children along with an O3 visa and you can bring your assistants (multiple) with an O2 visa!

Option 4 – The P1 Visa.  The P1 visa is the only visa type that is specifically designed for athletes.  The athlete does not need to demonstrate extraordinary ability and there is no distinction between amateurs or professionals or individual or groups.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  There is no prevailing wage requirement and no test of the labor market is required.  However, the athlete must be “internationally recognized” and is used to compete at a specific athletic competition.  If you are only competing for prize money, the B1 visa is likely the better option and if you want to remain in the US for a longer period of time then you are likely better off with the H2B visa or O1 visa.

Athlete Green Card Options

Option 1 – PERM Labor Certification + EB3 Green Card.  The PERM labor certification requires a US employer to promise to pay the athlete the prevailing wage and perform a test of the US labor market to see if any minimally qualified US workers are willing and able to take the position, if offered to them.  If no US workers can be located then the green card application can proceed.  The PERM process + the green card process typically takes a couple years if there are no complications or no visa availability issues as listed in the visa bulletin.

Option 2 – EB1 Green Card.  The EB1 requirements mirror the requirements of the O1 visa.  The athlete must be a professional and be significant accomplishments in the sport as to show they are extraordinary.  However, unlike the O1 visa which requires sponsorship by a US employer or agent, the EB1 category has no such requirement.  That means that any foreign athlete can self sponsor and petition for a green card based on their own merits and does not have to rely on anyone else.  When the green card is approved, they are required to continue in their sport but not with any particular employer or agent.  This category is very quick and we have many EB1 cases approved in less than 1 week.

If you would like to explore your athlete visa or athlete green card options, you can contact our office by phone at 312-751-9960, by email at info@messersmitlaw.com or through this contact form.  Our firm has handled thousands of immigration cases and we can evaluate your case to determine the best path for you.

Trump Visa – Trump Green Card

President Trump has been in office for less than one week yet he has already followed through with many of his campaign promises that relate to immigration such as building a wall along our southern border with Mexico and temporarily halting visa issuance to nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.  Many people are concerned that Trump’s America First policy will lead to fewer opportunities for foreign nationals to enter the United States.  However, Trump has been consistently clear that his new policies will be geared towards employment creation for American workers and there are many visas and paths to green cards which are grounded in employment creation.  Some of these employment creation visas and green card paths have been recently expanded and Trump is likely to create new opportunities for those who will employ US workers in the near future.

Nonimmigrant Visa Options

  1. The E2 visa allows foreign nationals of certain treaty countries to obtain a visa to open or purchase a business in the United States so long as their business plan shows that will employ at least one US worker.
  2. The H1B visa is not often thought of as an employment creation visa but it can be employed by foreign nationals to set up a US enterprise and work in the United States.
  3. The L1 visa allows foreign companies to set up a new branch or purchase a US office and transfer their workers to the United States to manage or work for that branch office.
  4. Entrepreneurs who have an active role in a US start up company can now be paroled in to the United States (no visa required) for up to 5 years to manage that enterprise.

Green Card Options

  1. The EB1A green card allows outstanding business people who have made great business accomplishments to self petition for US residency.
  2. The EB1C green card category allows managers or executives of international companies that have offices in the United States to sponsor those business leaders for US residency.
  3. The EB2 NIW or National Interest Waiver category has recently been revamped and is now specifically geared to help foreign entrepreneurs who set up US enterprises and hire US workers obtain US residency.
  4. The EB5 green card for entrepreneurs allows those who invest a minimum of $500,000 in a US enterprise and employ US workers to obtain US residency.

I am hearing that it is likely that Trump will continue to support these job creation visas and green card options and we may even see some significant expansions of these programs in the near future.  Trump has expressed that he wants to see manufacturing job flowing back to the United States and many manufacturers, both foreign and domestic, have announced their intents to return or expand in the United States.  Trump has also expressed his desire for small and medium sized businesses to prosper so it is likely that we will see new employment creation visa programs introduced or current programs expanded and streamlined.  This is a great time to be in business in the United States.  Our firm has handled thousands of immigration cases and we believe that this new administration welcomes all who would want to make this country great.  You can contact us for further assistance.

Posted on January 25, 2017 at 8:32 pm by Immigration Lawyer Peter Messersmith · Permalink · One Comment
In: Green Card, Nonimmigrant Visa · Tagged with: ,

212(a)(6)(C)(ii) False Claim to US Citizenship

212(a)(6)(C)(ii) False Claim to US Citizenship

Inadmissibility Series INA 212– Part III

212(a)(6)(C)(ii) False Claim to US Citizenship

Section 212 of the Immigration and Nationality Act of 1952 lists a series of classes of foreign nationals who are inadmissible to the United States. Some classes are complete bars and others allow specific types of waivers of inadmissibility. If you are attempting to enter the Unites States or are already in the United States and you are inadmissible then you will be barred from receiving immigration benefits such as a visa or green card. There are many ways a foreign national may be deemed inadmissible. The three most common ways are when he or she applies for a visa at a US Consulate, attempts to enter the US with a visa or applies for an immigration benefit while in the United States. In making one of these types of immigration applications, an immigration officer can make a determination that the foreign national’s past actions make him or her inadmissible or ineligible for benefits.

If an immigration officer determines that you are inadmissible then you have two options to overcome the determination. You can either challenge the determination of inadmissibility or apply for a waiver of inadmissibility if the law allows. In many cases. challenging the determination of inadmissibility is the only option because the foreign national is either not eligible for a waiver or the law does not offer a waiver.

212(a)(6)(C)(ii) False Claim to US Citizenship

In general.-Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act or any other Federal or State law is inadmissible.

This section shall not apply to an alien making a representation, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.

How to obtain a determination that the 212(a)(6)(C)(ii) False Claim to US Citizenship ground of inadmissibility was incorrectly made.

If you believe that the 212(a)(6)(C)(ii) False Claim to US Citizenship determination was made made in error in your case, we can help you overcome it.  No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times. We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks. CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame. In our experience, the more difficult the situation, the longer it will take to get resolved.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(6)(C)(ii) False Claim to US Citizenship.

212(a)(6)(C)(ii)(II) provides an immigrant waiver only where the false claim was made prior to 1997 and can demonstrate that his or her parents were US citizens and he or she permanently resided in the US before the age of 16.

Waiver of Inadmissibility for a Non Immigrant Visa due to 212(a)(6)(C)(ii) False Claim to US citizenship.

INA 212(d)(3) – Except as provided in this subsection, an alien (i) 20b/ who is applying for a non immigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General, or (ii) 20b/ who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

If you have been determined to be inadmissible, we can help you overcome the determination or obtain a waiver

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again. This is simply not true. For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination. We have successfully helped many clients who were determined to be inadmissible and we can assist you. We believe that with the right approach, there is always a hope to win your case.

If you would like our assistance, please feel free to call us at 312-751-9960 or email us at info@messersmithlaw.com

212(a)(6)(E) Smugglers

212(a)(6)(E) Smugglers

Inadmissibility Series INA 212– Part IV

212(a)(6)(E) Smugglers

Section 212 of the Immigration and Nationality Act of 1952 lists a series of classes of foreign nationals who are inadmissible to the United States. Some classes are complete bars and others allow specific types of waivers of inadmissibility. If you are attempting to enter the Unites States or are already in the United States and you are inadmissible then you will be barred from receiving immigration benefits such as a visa or green card. There are many ways a foreign national may be deemed inadmissible. The three most common ways are when he or she applies for a visa at a US Consulate, attempts to enter the US with a visa or applies for an immigration benefit while in the United States. In making one of these types of immigration applications, an immigration officer can make a determination that the foreign national’s past actions make him or her inadmissible or ineligible for benefits.

If an immigration officer determines that you are inadmissible then you have two options to overcome the determination. You can either challenge the determination of inadmissibility or apply for a waiver of inadmissibility if the law allows. In many cases. challenging the determination of inadmissibility is the only option because the foreign national is either not eligible for a waiver or the law does not offer a waiver.

212(a)(6)(E) Smugglers

In general.-Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.

This section shall not apply in the case of alien who is an eligible immigrant, was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative if the alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

How to obtain a determination that the 212(a)(6)(E) Smugglers ground of inadmissibility was incorrectly made.

If you believe that the 212(a)(6)(E) Smugglers determination was made in error in your case, we can help you overcome it.  No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times. We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks. CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame. In our experience, the more difficult the situation, the longer it will take to get resolved.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(6)(E) Smugglers ground of inadmissibility

There are two sections of law which allow a foreign national to apply for a waiver of inadmissibility where he or she is ultimately applying for an immigrant visa or permanent residence (green card).

212(d)(11) provides for an immigrant waiver where the foreign national is an applicant for a family based petition and only helped smuggle a spouse, parent or child; and 212(c) provides a waiver to an LPR returning to the US who helped smuggle a spouse, child or parent. The alien demonstrates extreme hardship to the alien or the alien’s United States citizen, lawful permanent resident, or qualified alien parent or child.

Waiver of Inadmissibility for a Non Immigrant Visa due to 212(a)(6)(E) Smugglers ground of inadmissibility

INA 212(d)(3) – Except as provided in this subsection, an alien (i) 20b/ who is applying for a non immigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General, or (ii) 20b/ who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

If you have been determined to be inadmissible, we can help you overcome the determination or obtain a waiver

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again. This is simply not true. For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination. We have successfully helped many clients who were determined to be inadmissible and we can assist you. We believe that with the right approach, there is always a hope to win your case.

If you would like our assistance, please feel free to call us at 312-751-9960 or email us at info@messersmithlaw.com

212(a)(2)(D)(i) Prostitution

212(a)(2)(D)(i) Prostitution

Inadmissibility Series INA 212– Part V

212(a)(2)(D)(i) Prostitution

Section 212 of the Immigration and Nationality Act of 1952 lists a series of classes of foreign nationals who are inadmissible to the United States. Some classes are complete bars and others allow specific types of waivers of inadmissibility. If you are attempting to enter the Unites States or are already in the United States and you are inadmissible then you will be barred from receiving immigration benefits such as a visa or green card. There are many ways a foreign national may be deemed inadmissible. The three most common ways are when he or she applies for a visa at a US Consulate, attempts to enter the US with a visa or applies for an immigration benefit while in the United States. In making one of these types of immigration applications, an immigration officer can make a determination that the foreign national’s past actions make him or her inadmissible or ineligible for benefits.

If an immigration officer determines that you are inadmissible then you have two options to overcome the determination. You can either challenge the determination of inadmissibility or apply for a waiver of inadmissibility if the law allows. In many cases. challenging the determination of inadmissibility is the only option because the foreign national is either not eligible for a waiver or the law does not offer a waiver.

212(a)(2)(D)(i) Prostitution

In general.- Any alien who is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status is inadmissible.

How to obtain a determination that the 212(a)(2)(D)(i) Prostitution ground of inadmissibility was incorrectly made.

If you believe that the 212(a)(2)(D)(i) Prostitution determination was made in error in your case, we can help you overcome it.  No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times. We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks. CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame. In our experience, the more difficult the situation, the longer it will take to get resolved.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(2)(D)(i) Prostitution

There are two sections of law which allow a foreign national to apply for a waiver of inadmissibility where he or she is ultimately applying for an immigrant visa or permanent residence (green card).

212(h) provides three avenues for a 212(a)(2)(D)(i) waiver.

Where the foreign national’s activity occurred 15+ years ago, can demonstrate rehabilitation and his or her admission to the US would not be contrary to the national welfare, safety and security of the US;
Where the foreign national is the spouse, parent or child of a USC/LPR and can demonstrate that the US relative would suffer extreme hardship if the foreign national cannot enter the US; or
The foreign national is a VAWA self-petitioner.

Waiver of Inadmissibility for a Non immigrant Visa due to 212(a)(2)(D)(i) Prostitution

INA 212(d)(3) – Except as provided in this subsection, an alien (i) 20b/ who is applying for a non immigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General, or (ii) 20b/ who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

If you have been determined to be inadmissible, we can help you overcome the determination or obtain a waiver

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again. This is simply not true. For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination. We have successfully helped many clients who were determined to be inadmissible and we can assist you. We believe that with the right approach, there is always a hope to win your case.

Please feel free to contact us at 312-751-9960 or email us at info@messersmithlaw.com if you’d like our assistance.

212(a)(3)(B) Terrorist Activities

212(a)(3)(B) Terrorist Activities

Inadmissibility Series INA 212– Part VI

212(a)(3)(B) Terrorist Activities

Section 212 of the Immigration and Nationality Act of 1952 lists a series of classes of foreign nationals who are inadmissible to the United States. Some classes are complete bars and others allow specific types of waivers of inadmissibility. If you are attempting to enter the Unites States or are already in the United States and you are inadmissible then you will be barred from receiving immigration benefits such as a visa or green card. There are many ways a foreign national may be deemed inadmissible. The three most common ways are when he or she applies for a visa at a US Consulate, attempts to enter the US with a visa or applies for an immigration benefit while in the United States. In making one of these types of immigration applications, an immigration officer can make a determination that the foreign national’s past actions make him or her inadmissible or ineligible for benefits.

212(a)(3)(B) Terrorist Activities

In general.-Any alien who has engaged in a terrorist activity, a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity is a representative of a terrorist organization or a political, social, or other group that endorses or espouses terrorist activity is a member of a terrorist organization is a member of a terrorist organization, unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization has received military-type training (as defined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization or is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years, is inadmissible.

An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.

This section shall not apply to a spouse or child who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section or whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(3)(B) Terrorist Activities ground of inadmissibility

There are two sections of law which allow a foreign national to apply for a waiver of inadmissibility where he or she is ultimately applying for an immigrant visa or permanent residence (green card).

There is no immigrant waiver for 212(a)(3)(B).

Waiver of Inadmissibility for a Non immigrant Visa due to 212(a)(3)(B) Terrorist Activities ground of inadmissibility

INA 212(d)(3) – Except as provided in this subsection, an alien (i) 20b/ who is applying for a non immigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General, or (ii) 20b/ who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

 

EB1 Extraordinary Ability Petitions for Managers: Project Manager, IT Manager, Marketing Manger, Software Development Manager, and other Businessmen

The EB1 extraordinary ability green card allows anyone in the arts, sciences, business, education or athletics to sponsor their own green card.  No job offer or labor certification is required.  The requirements for this category are quite high but not insurmountable.  Our office has handled thousands of immigration cases and have secured many EB1 approvals for our clients.

Many people believe that the EB1 category is limited to scientists or researchers or those who have won Nobel prizes.  This is simply not the case.  We have helped many people in business fields with job titles like Project Manger, IT Manager, Marketing Manger, or Software Development Manager self sponsor through the EB1 category.

In order to qualify for EB1 classification, you must be able to prove you meet three out of the following ten items:

None of our clients have sufficient documentation to argue all of these elements and it is not necessary to meet all of them, only three.  We typically have enough documentation to argue 4-5 and as long as we can prove three, that is enough.  Typically managers like IT Managers, Project Managers and other people in the business field have similar types of experience and accomplishments.  Awards are rare and usually company specific and none have any artistic exhibitions or performing art success.  However, most of our clients do judge the work of the peers in the form of performance evaluations, business proposals, or by managing specific projects.  Most of our clients are able to show that projects that they have managed or lead are significant and have made an impact in the field.  Many projects result in economic benefits, job creation, market share increase or other specific benefits.   Managers by definition are leadership positions.  Most of our clients are able to show that their role was leading or critical in their organization.  These are the most common types and if you have made accomplishments in these three areas, then you may have a good EB1 case.

Send us a copy of your CV/resume and we’ll see if we can help you with your own EB1 self sponsored green card.

Training Visa

There are three visa options for foreign nationals seeking employment training in the United States.

J1 Visa – Intern

Foreign nationals who are currently in school in a foreign country or who have graduated from a foreign school in the past 12 months can get a J1 visa for an internship.  The internship cannot be in an unskilled or medical care field.  A US employer can offer the internship and is required to pay significant fees to an approved J1 sponsor (an agency which performs a site visit where the internship will occur and issue paperwork used to obtain the J1 visa).

The US employer must provide entry level training, provide program evaluations, and provide continuous onsite supervision of the trainee.  Interns must undergo multiple evaluations by the J1 sponsor to be eligible to continue with the program.  The maximum duration of the J1 intern visa is 12 months.

J1 Visa – Trainee

Foreign nationals who have a college degree and one year of employment experience or no degree and five years of experience are eligible for a J1 visa for training.  The training cannot be in an unskilled or medical field.  A US employer can offer the training and is required to pay significant fees to an approved J1 sponsor (an agency which performs a site visit where the internship will occur and issue paperwork used to obtain the J1 visa).

The training visa cannot be used to fill a position that would ordinarily be filled by a part time of full time employee.  Site visits must be conducted by the J1 sponsor prior to the issuance of the J1 visa and during the training program.  The J1 sponsor will also ensure that the trainers are properly selected, the trainees are properly supervised, and will make periodic evaluations to ensure compliance.  The training must be offered in a full time capacity defined as 32 hours/wk minimum and the maximum duration of the J1 trainee visa is 18 months.

H3 Visa – Trainee

Foreign national who wish to receive training in the US (with no education or work experience requirements) may do so with an H3 visa.  The H3 visa requires a US employer to apply for the visa but there is no sponsoring agency as required by the J1 visa (and no sponsor fees or site visits).

The US employer may provide training in any area other than medical training and custodial care is allowed but must be incidental to the training program.   The US employer must offer a structured training program with one or more qualified staff members to provide the training.  This visa cannot be used to displace an American worker but employment incidental to the training is permissible (on the job training).

The training must be designed to benefit the foreign national in pursuing a career abroad and you must show that the training is not available in their home country.  The training can be offered in a part time or full time capacity, the trainee can be paid for the training and the maximum duration of a H3 visa is 24 months.

Posted on June 9, 2016 at 10:53 am by Immigration Lawyer Peter Messersmith · Permalink · 2 Comments
In: H-3 Visa, J-1 Visa, Training Visa · Tagged with: 

J1 Waiver Fulbright Options

J1 Waiver Options for Applicants with Fulbright or other Foreign Government Funding

Usually it’s difficult to obtain a J1 waiver for a person with government funding.  In fact, in many circumstances it is impossible.  Many J1 Fulbright waiver applicants come to our office after already attempting to secure a no objection based waiver but failed.  In 99% of cases, a no objection based waiver for Fulbrighters is impossible and a waste of time and energy.  However, we have secured many no objection based waivers for applicants who received home country government funding.  When handling J1 waivers for Fulbrighters, we generally recommend pursuing a waiver through the hardship, persecution, and interested government agency methods.  The purpose of this post is to review some of the Fulbright and other government funding waiver applications that we have handled.

  1. Hardship Waiver for Poland National with Fulbright Funding

Our firm assisted a Poland national who had a Polish husband and US Citizen child with a J1 hardship waiver.  The applicant was a scientist and we were able to show that her research was in the national interest.  We also argued that the applicant’s child would have poor access to proper medical care for a minor medical condition and that the applicant would not be able to support the child due to the weak economy and poor job opportunities in Poland.  This case was approved.

  1. No Objection Waiver for China National with funding from the Chinese Government (China Scholarship Council)

Our firm assisted a China national who entered with a J1 visa funded by the China Department of Education to work at a US University as a research scholar. Though she received significant Chinese government funding for her program, we were able to persuade China to issue a letter of no objection and her waiver was approved.

  1. Persecution Waiver for Turkmenistan National with US Government Funding

Our firm assisted a Turkmenistan national who married an American. The applicant was a Muslim and her husband, a Christian. We were able to establish that the applicant would be subject to persecution in a country that is more than 90% Muslim. This case was approved.

  1. Hardship Waiver for Morocco National with US Government Funding (USAID)

Our firm assisted a Morocco national who married an American man and they had three children together. We were able to establish that her husband would suffer career disruption and sever financial consequences and that the children’s lives would be in danger in Morocco due to Muslim extremists. This case was approved.

  1. Hardship Waiver for Jamaica National with Fulbright Funding

Our firm assisted a Jamaica national with three American children. We successfully argued that the children would suffer mental and psychological harm and that the applicant’s scientific research was in the national interest. This case was approved.

  1. Hardship Waiver for Ukraine National with US Government Funding (USIA)

Our firm assisted a Ukraine national who had one US child. We successfully argued that US child would not be able to integrate into Ukraine society after living in the US for a long period and being unfamiliar with local customs and unable to speak the language. The case was approved.

  1. No Objection Waiver for China National with funding from the Chinese Government (Chinese Language Council International)

Our firm assisted a China national who entered with a J1 visa funded by the China Department of Education to work at a US University as a Chinese language Instructor. Though she received significant Chinese government funding for her program, we were able to persuade the China to issue a letter of no objection and her waiver was approved.

  1. Hardship Waiver for Portugal National with Fulbright Funding

Our firm assisted a Portugal national who had a US citizen spouse. We argued that the American husband would severe emotional issues due to a possible separation and that his minor medical problems could not be treated in Portugal. The case was approved.

  1. No Objection Waiver for Turkey National with funding from the US State Department

Our firm assisted a Turkey national who entered with a J1 visa through the US Department of State’s Student and Scholar Exchange Visitor Program. We were able to obtain a No Objection statement from Turkey and persuade the State Department to recommend a waiver. The case was approved.

  1. No Objection Waiver for Japan National with funding from the Japanese Government

Our firm assisted a Japan national who entered with a J1 visa funded by the Japanese government to work at a US University as a research scholar. Though she received significant Japanese government funding for her program, we were able to persuade Japan to issue a letter of no objection and her waiver was approved.

If you entered the US with a J1 visa or changed your status to J1 and have Us government funding or if your home country funded your program, we may be able to help you get a waiver.  Contact our office to discuss your options.

Posted on June 1, 2016 at 10:34 pm by Immigration Lawyer Peter Messersmith · Permalink · Leave a comment
In: J-1 Visa Waiver · Tagged with: