Immigrant Visa Denial

Immigrant Visa Denial

There are many reasons that could lead to an immigrant visa denial.  Over the years, we have successfully helped many people overcome immigrant visa denials and reunite families.  The proper way to overcome an immigrant visa denial is to, first, determine why the immigrant visa was denied originally.  The most common situation is where the visa applicant or petitioner does not file the application or petition correctly and makes errors which the Embassy determines constitute fraud or material misrepresentation.  This would result in an INA 212(a)(6)(c)(i) determination and is a permanent bar from entry to the US.  A waiver may or may not be filed depending on the applicant’s eligibility.  If you believe that the Embassy incorrectly made an INA 212(a)(6)(c)(i) determination, we can challenge the denial decision and request that it be removed from the applicant’s record.  Here are a couple examples of the immigrant visa denials that we were able to fix, including 212(a)(6)(c)(ii), 212(a)(6)(e), and 212(a)(4) denials.

  1. Client was a passenger in a van when she tried to enter the US.  CBP approached the driver and the driver presented a birth certificate and claimed our client was his daughter and that she was born in the US.  However, our client did not speak English and wasn’t aware of what the driver told CBP.  CBP found the client to be inadmissible under INA 212(a)(6)(c)(ii) False claim to US citizenship.  Later on, our client’s husband sponsored her for an immigrant visa and the Embassy denied the application due to INA 212(a)(6)(c)(ii).  Client sought our help after the immigrant visa denial and we were able to have the INA 212(a)(6)(c)(ii) removed from her record.
  2. Client allowed her sister to take her kids to the US on B2 tourist visa many years ago.  Unknown to our client, her sister enrolled her kids in school while they were in the United States.  Enrolling in school in B2 status is a violation of status.  Later on, our client applied for an H1B visa to enter the US to work but she was denied under INA 212(a)(6)(c)(i) Misrepresentation and INA 212(a)(6)(e) Smuggling.  It wasn’t easy to fix but we were able to overcome both issues so she was able to enter the US.
  3. Client’s sponsor was gainfully employed and sponsored client for an immigrant visa.  The sponsor didn’t present the case properly so client’s immigrant visa was denied due to INA 212(a)(4) Public Charge.  We worked with the government and made sure that the case was properly presented and was able to overcome the INA 212(a)(4) issue.

In the last 17 years, we have successfully handled thousands of cases and some of those cases are extremely complicated but we were able to win them unbelievably successful results for our clients.  If you feel that you have a difficult case and if you don’t see any hope, let us help you.  With our extensive expertise, we will make impossible possible.  Please feel free to contact us at 312 751 9960 or email us at info@messersmithlaw.com

EB1 for Physicians

EB1 for Physicians

We have successfully helped many physicians obtain self sponsored EB1A green cards.  When we take a case, we look at the overall accomplishments of the client. Some clients believe that you have to have thousands of publications or citations to obtain an EB1A approval.  The truths is none of our approved EB1A clients have thousands of publications or citations.  We have many clients who are managers, software engineers, IT managers, athletes and physicians who did not have any publications or citations.  As a physician, if you have publications or citations, we can use them.  However if you do not have any, we will help you build a case to evidence other criteria that can be used instead.  The minimum is 3/10 but let us identify ways to argue more than the minimum to give you the best chance for approval.  Our goal is to make the case strongest possible and present it the way that USCIS wants to see it.

Here are the EB1 criteria:

You can send your CV to info@messersmithlaw.com for a free evaluation or give us a call at 312 751 9960.  We’re here to help you achieve your goal.

Posted on January 24, 2019 at 2:13 pm by Immigration Lawyer Peter Messersmith · Permalink · Leave a comment
In: EB-1 Extraordinary Ability · Tagged with: 

I-94 Correction

I-94 Correction

Over the years we’ve had many clients come to us with I-94 issues.  With our extensive expertise we were able to fix those issues for our clients quickly.  Failure to take action to make I-94 corrections will lead to major negative outcomes to your current legal status and for future visa and green card applications.  Here are a few examples of the issues that we were able to correct and negative outcomes we were able to avoid for our clients.

In one case, we had a client come to us after realizing that both his passport number and date of birth were both listed incorrectly on his I-94.  He discovered the error when reviewing his documents prior to retaining us to process his green card application.  After we took his case, we had to analyze his documents and determine where the error originated and who was responsible for the error.  Fortunately, the error was not caused by our client and was caused by US immigration so we could correct his I-94 very quickly.  However, even if the error was made by our client, we would still be able to get his I-94 corrected but it would have been much more difficult.  If we did not correct his I-94, it would have left him open to an accusation of fraud or misrepresentation – INA 212(a)(6)(c)(i).  For more information regarding INA 212(a)(6)(c)(i) See https://messersmithlaw.com/ina-212a6ci/ and https://blog.messersmithlaw.com/?p=259

In another case, a client with an H1B visa came to us because his I-94 card had a shorter validity than he previously approved H1B petition.  He had filed an H1B petition while in the US and it was approved for a 3 year term.  He then traveled outside of the US and upon entry, he was given a I94 which was valid for just 18 months.  He did not discover the discrepancy until it was time to apply for an H1B extension and at that point, his I94 had expired more than one year prior.  As a result he had been in the United States without status working for over one year which meant he accrued more than one year of unlawful presence and was then subject to the unlawful presence bar.

Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary.” You may be barred from reentering the United States for:

  • 3 years, if you depart the United States after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings;
  • 10 years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or
  • Permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.

Before we could handle the H1B extension, we first had to correct his I-94.  We worked directly with US immigration to correct his I-94 immediately so he would not be subject to the 10 year unlawful presence bar and then we were able to process his H1B visa.  In both situations we were able to get their I-94 corrections made in 1-3 business days.  If you have an error on your I-94, contact us immediately to see if we can resolve it.  Failure to act can lead to major issues which can lead to your removal from the US and being barred from returning permanently.  You can contact us at 312 751 9960 or email us at info@messersmithlaw.com

Posted on January 20, 2019 at 7:56 pm by Immigration Lawyer Peter Messersmith · Permalink · Leave a comment
In: I-94, I-94 correction · Tagged with: ,

How Many Citations Needed for EB1?

How Many Citations Needed for EB1?

Criteria for Demonstrating Extraordinary Ability

You must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your field:

Many applicants are concerned about their low citation counts.  In reality, citations are only helpful in regards to one of the ten listed criteria – original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.  In many fields where publications are not the norm such as in IT or management professions, citations are completely irrelevant and in other scientific or academic fields like Economics, Business, Computer Science, or Mathematics, they are very hard to come by.  It is very normal for Economics papers to have no citations or be in the low single digits.  This is ok and is not fatal to an EB1 case.  It simply means that we need to identify other criteria on the list to get your case approved.  We have handled hundreds of self petitioned green card such as EB1 and know what USCIS wants to see in order to approve a case.  Over the past 15+ years we have successfully helped clients obtain EB1 green cards in software, engineering, speaking, business, consulting, acting and other fields where the applicants had none to very few citations.  There are many ways to make a strong case without a strong citation record.  For your reference, here are some samples of our approved petitions.  If you’d like our help, please feel free to call us at 312 751 9960 or email us at info@messersmithlaw.com.  

Intent to Revoke Was Sent

A Notice of Intent to Revoke, issued by USCIS, can occur in any type of immigration application or petition, both family based and employment based, that has previously been approved.

The Notice of Intent to Revoke or NOIR is a detailed statement, made by USCIS, of the grounds for the revocation and whether USCIS intends to revoke the petition in whole or in part (and if in part, which part(s)), and shall advise the petitioner of his or her right to review and/or rebut the allegations upon which the intended revocation is based within 30 days of the date of the notice. (“Revoked in part” means that the approval is revoked with regard to one or more, but not all, of the beneficiaries of a multiple beneficiary petition, or with regard to one or more, but not all, of the proposed employment sites or events listed in a multi-site/event petition.) The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. The director shall consider all relevant evidence presented in deciding whether to revoke the petition in whole or in part. If the petition is revoked in part, the remainder of the petition shall remain approved and a revised approval notice shall be sent to the petitioner with the revocation notice.

If the petitioner does not overcome the basis for the revocation, or fails to respond timely, prepare a decision of revocation. A petitioner may file an appeal on a decision to revoke a petition just as if the petition had been denied originally, except that the authorized period for filing the appeal is only 15 days regardless of the type of petition. A petitioner may also file a motion to reopen or reconsider the decision revoking the decision.

The issuance of an NOIR is bad news.  USCIS has already decided there is a good reason to revoke and the response made to the NOIR will be decisive in determining if you will lose or retain your approved petition.  If you receive an NOIR, you must act fast.  If you would like our assistance, you will need to send us a copy of the notice immediately upon receiving it so we have to to investigate and prepare a proper response.  Failure to act quickly will result in revocation.  For your reference, here are some samples of our approved petitions.  If you’d like our help, please feel free to call us at 312-751-9960 or email us at info@messersmithlaw.com

Posted on November 6, 2017 at 7:44 pm by Immigration Lawyer Peter Messersmith · Permalink · Leave a comment
In: NOIR, Notice of Intent to Revoke · Tagged with: ,

NIW Requirements

NIW Requirements

The bare minimum qualification for the NIW standard is that the foreign national is a member of the professions holding an advanced degree, defined as a bachelor’s degree with five years of progressive experience or a Master’s degree or higher OR has exceptional ability in the sciences, arts or business.  Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered.”  The foreign national can prove this by showing they meet at least three of the following criteria:

Foreign nationals seeking a national interest waiver must also demonstrate that waiving the labor certification process be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).

In 1998 in the case of New York State Dept of Transportation (NYSDOT) established specific criteria for NIW petitions but this standard was recently modified to make petitions by job creators easier.  In Re Dhanasar (2016) now directs USCIS to grant a national interest waiver if the foreign national demonstrates by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The applicant’s spouse and minor children may obtained derivative green cards based on the principle applicant’s approval and all beneficiaries who apply while in the United States may obtain temporary work authorization (EAD) and permission to travel (Advance Parole).

We have successfully helped hundreds of clients obtain NIW green cards. We’re looking forward to helping you and your family obtain green cards as well.  Feel free to call us at 312-751-9960 or email us at info@messersmithlaw.com. For your reference, here are some samples of our approved petitions.

Posted on October 15, 2017 at 10:07 am by Immigration Lawyer Peter Messersmith · Permalink · Leave a comment
In: National Interest Waiver · Tagged with: ,

Motion to Reopen

Motion to Reopen

When USCIS denies a case, the applicant normally has the opportunity to file a motion to reopen, motion to reconsider and/or an appeal.  A motion to reopen, reconsider, or an appeal must be filed within 30 days of the unfavorable decision (or 33 days if the decision is mailed).  A late filed motion to reopen may be excused in the discretion of USCIS if the delay was reasonable and beyond the applicant’s or petitioner’s control.

Unlike appeals, which asks a new authority to review and reverse a decision, motions to reopen and/or reconsider request a review by the authority that issued the denial.  This is typically a USCIS field office or a Service Center such as Nebraska, California, Texas, or Vermont.   While an appeal normally takes at least 6 months, and in many occasions much longer, to adjudicate, a motion to reopen or a motion to reconsider is typically adjudicated in 3 months or less.

A motion to reopen must state new facts and provide supporting evidence.  Merely resubmitting previously provided evidence will not meet the requirements of a motion to reopen.  A motion to reconsider must establish that the decision was based on an incorrect applicant of law or policy and that the decision was incorrect on the evidence of record at the time of decision. The applicant must provide citations to the statute, regulation, or precedent decisions to support motion to reconsider.

A motion to reopen and reconsider can be filed together. and even in addition to an appeal.  Contact us to determine which option is best for you.

USCIS Appointment and Green Card Interview Rules – NEW

New USCIS Interview for Employment Based I485 Applicants

For the past 15 years, USCIS has only required in person interview of employment based I485 applicants in situations where the USCIS adjudicator believed the applicant may have committed fraud, violated their nonimmigrant status or had a criminal record.  On August 28, 2017 that all changed.  USCIS has announced that their new policy is phase in in-person interviews for all employment based applicants.  This includes employer sponsored EB2 and EB3 based applications as well as self sponsored EB1 and NIW based applications.  These interview are expected to begin on October 1, 2017.

Scope of Interview and Possible Interview Questions

To determine what USCIS is looking for in these new interview, we can look to their announcement itself.  In their announcement, USCIS states that

Conducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.

It becomes readily apparent that the purpose of these interviews is to find a reason to deny your application.  Similar to marriage based fraud interviews, USCIS will use their available resources to conduct an investigation of the application prior to their interview to determine whether or not the applicant or the applicant’s employer made an false or misleading statements or submitted any false or misleading documents in support of either the labor certification or I140.  Moreover, in addition to background checks previously performed, USCIS is likely to perform credit checks and internet searches to see if there is any information available that contradicts what was submitted in the filings.

In marriage green card interviews, the adjudicating officer will review the forms filed, the documents submitted, and the question the applicants to determine not only if they meet the minimum requirements but also if their relationship is genuine and bonafide.  Questions about maintenance of nonimmigrant status are unusual in those case but in these new USCIS interviews for employment based applicants, it is likely to be one of the primary focuses.  If you are on an employment based visa, expect to be asked questions regarding your work, your job duties, the job location and all related questions.  USCIS will want to see if you properly maintained your status and if they determine that you did not, your case may be denied.  Furthermore, the likely main focus will be on the job identified in the I140.  Why did the employer sponsor you?  How did you hear about the job?  Do you currently work there?  How about your past experience?  Is it legit?  Are you currently working there?  Who are your coworkers?

After we appear at some of these interviews, we’ll know exactly what to expect but this is a new hurdle for employment based I485 applicants and if your interview does not go well, expect big delays and possible denials.  And if you have a spouse or child who has filed a derivative I485, expect to be grilled over those relationships as well, especially if the marriage is young or either of you have been previously divorced.  Our office has extensive experience with USCIS interviews and we can assist you in this matter.  If you are scheduled for an interview at a local office in Chicago, IL, Milwaukee, WI, St. Louis, MO, Des Moines, IA, or Indianapolis, IN, we can help you.  Contact us here.

 

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.