Recent Success in the National Interest Waiver Category (NIW)

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While our firm has always had great success in getting green card applications approved through the national interest waiver category, we have recently have enjoyed noteworthy success in getting them approved quickly.  In the past, we normally saw cases take roughly 10-14 months for NIWs to be approved and green cards to be issued.  Currently, both the Texas Service Center and Nebraska Service Center are showing that processing times are roughly 12 months for NIW Form I-140.  However, in several of our most recent NIW cases, we are receiving NIW approvals, including issuance of green cards, in 4 months or less.  One case in particular was approved in less than 3 weeks!  Bear in mind that premium processing is not available for NIWs.  We encountered the rate situation where both Form I-140 and Form I-485 were approved before the applicants even attended their biometrics appointment!  The green cards were mailed out shortly after the biometrics were taken.  It took a lot of hard work on our part to get these cases approved so quickly and we are working to duplicate these results on behalf of the rest of our clients.

Redacted copies of the latest approval notices are below.

NIW Green Cards Approved in Three Weeks!

H-1B Site Visits: They’re Coming to Visit You

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In nearly every H-1B petition, the petitioner is required to pay a $500 anti-fraud fee.  The Department of Homeland Security (DHS) is using the proceeds of these anti-fraud fees to investigate H-1B petitioners.  DHS is contracting with private investigators to make surprise visits, though they may provide advance notice if they so desire, to H-1B work sites.  These investigators are charged with verifying that the petitioning company is a real business entity operating as stated in the H-1B application and that the H-1B visa holder is a legitimate employee.

Therefore, it is imperative that each H-1B sponsor make sure that their filings are accurate.  If any amendments need to be made to reflect material changes in an already approved H-1B petition, such as change in work location or changes in job duties, the employer must timely file an H-1B amendment to reflect such changes.  Failure to take these duties responsibly can result in monetary penalties as well as criminal prosecution.

Marriage Green Card: From Conditional Resident (CPR) to Permanent Resident (LPR)

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If you were granted conditional resident status through marriage to a U.S. citizen or permanent resident, you will need to petition to remove the conditions before you can obtain your permanent green card.  This petition is typically made in the last 90 days of the two year anniversary of obtaining your conditional green card.

If you are still married at this time, you may petition jointly with your spouse.  If you are separated, divorced or your spouse will not jointly petition with you, you must fall into one of the following categories to self petition:

1. You entered the marriage in good faith, but your spouse subsequently died;

2. You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;

3. You entered the marriage in good faith and have remained married, but have been battered or subjected to extreme cruelty by your U.S. citizen or permanent resident spouse; or

4. The termination of your status and removal would result in extreme hardship.

The most common situation where a joint petition cannot be filed is where there is a problem with the relationship and the couple is separated and is either in the process of divorcing or is already divorced.  The USCIS will not approve a self petition under the second category above unless the couple’s divorce is finalized at the time of the I-751 interview.  However, this does not mean that the self petition cannot be filed before the divorce is final.  The petition must be filed before the second anniversary of the issuance of the conditional green card.

In the case where the divorce has not been finalized and the deadline is approaching, you may file your self petition and then finalize the divorce.  Processing times are generally about 6 months and if a divorce cannot be finalized in that amount of time, you may be able to obtain an extension.  However, if that extension cannot be obtained or your divorce proceedings drag on, your conditional resident status will be terminated and a Notice to Appear (NTA) will be issued and you’ll have to continue your petition before an Immigration Judge or be removed from the United States.

Recent USCIS regulations will allow the conditional resident who filed a joint petition with his or her spouse to later amend the petition to be  a self petition where the couple separates prior to the I-751 interview.  USCIS will allow up to 87 days to finalize the divorce.

New Processing Procedure for Form I-140 and I-485 at the Texas Service Center (TSC) and Nebraska Service Center (NSC)

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New processing procures at the NSC and TSC regarding concurrently filed Form I-140 and Form I-485 are creating difficulties for borderline cases.  Previous USCIS Memoranda required USCIS adjudicating officers who denied an Petitioner’s Form I-140 to hold the Form I-485 for up to 30 days after the Form I-140 denial in case the Petitioner chose to appeal.  Then if the Administrative Appeals Office (AAO) sustained the appeal, the USCIS adjudicating officer would approve the Form I-485.  Now, the USCIS will immediately deny Form I-485 when Form I-140 is denied.  This means that every Petitioner should make sure that their Form I-140 petition is presented in the best possible light, especially in cases of concurrent filings.  Beneficiary’s are also advised to maintain nonimmigrant status, where possible, prior to Form I-140 approval and in some cases, before Form I-485 approval.

Widows of US Citizens Will Be Granted Deferred Action

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US Department of Homeland Security Secretary Janet Napolitano recently announced that widows of US Citizens will be granted deferred action for two years.  Previously, foreign nationals who married US citizens via the Marriage Green Card but whose US citizen spouse died before they were able to obtain benefits were not eligible for immigration benefits.  The DHS will now recognize that these widows along with their unmarried children under 18 years of age the right to remain in the US and will defer initiation of removal proceedings, cancel current removal proceedings and will accept applications foe humanitarian reinstatement for those who have had petitions revoked.

These new benefits apply to all spouse of US citizens and their unmarried children under 18 years who were married for less than two years at the time of the US citizen spouse’s death.  In addition, the widows may be granted work authorization provided they may show economic necessity.  The DHS is encouraging the legislation of new laws which would allow these widows the ability to apply for permanent residence as well.

See the entire press release here.

Visa Bulletin Outlook for 2009/2010

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The Department of State Visa Office has made several predictions regarding the movement of priority dates for the remainder of 2009 and beyond.  These predictions include the following:

  1. Regarding the EB1 category, all countries are expected to remain current for 2009 but this is expected to change in 2010 for India and possible China due to high demand
  2. Regarding the EB2 category, retrogression for India and China is expected to worsen for India and China.  Both countries are expected to become unavailable in August or September 2009.
  3. Regarding the EB3 category, EB3 wordwide and for China, India, Mexico and Philippines are expected to reamin unavailable for the remainder of the fiscal year.  In October, it is likely the priority dates will be March 1, 2003 for EB3 worldwide, China will be March 1, 2003, India will be November 1, 2001 and Mexico will be March 1, 2003.
  4. Regarding the EB4 category, it is expected to be current for the remainder of the fiscal year but a cut off date will likely be established in FY2010.
  5. Finally, for the EB5 category, it is expected to remain current for the foreseeable future though there is higher demand in this category.

Texas Service Center Operations

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In a recent question and answer session, the Texas Service Center (TSC) has made some revelations regarding how they process certain immigrant and nonimmigrant petitions.

  • Motion to Reopen; Motion to Reconsider; Appeals

When filing a motion to reopen or reconsider, the officer who originally made the decision to deny the underlying case will decide the motion.  If the offier decides to deny the motion, the decision will be reviewed by a supervisor.  Where an appeal is made, the TSC will not reopen or reconsider where the Service believes it made a correct decision but will forward the appeal to the AAO.

  • Petition Denials without RFE or NOID

When an officer decides to deny a petition without sending a request for evidence or notice of intent to deny, that offier’s decision must reviewed by two supervisors before the denial notice will be issued.

  • Notice to Appear Issuance upon I-485 Denial

Generally, the TSC will wait 30 days after issuing an I-485 denial before dispatching a notice to appear (NTA).  This 30 day period provides the Applicant with an opportunity to appeal the denial before being sent to removal proceedings.

US Department of State Lists Eight Countries as Religious Freedom Violators

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On May 11, 2009 the US Department of State designated Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan as “countries of particular concern” for religious freedom violations.  While this determination was made in connection with any immigration laws, it can be used to support certain types of immigration petitions where the applicant has suffered religious persecution.

Religious persecution can be an element of a political asylum petition, j-1 visa waiver petition as well a defense to removal (deportation).

Read the full report here.

EB-2 & EB-3 Degree Equivalency

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When pursuing permanent residency through employment, the applicant must choose to file his or her application through a particular employment based category.  The most common categories are the EB-2 and the EB-3 categories.  The EB-2 generally requires the applicant to hold a master’s degree or the equivalent and the EB-3 category requires the applicant to hold a bachelor’s degree or the equivalent.  If the Applicant’s education has been obtained abroad, it must be established that his or her foreign academic credentials are equivalent to education obtained at an accredited institution of higher learning in the United States.

The following degree equivalency determinations have been made by the AAO, USCIS, District Court and through regulations:

1.  A Bachelor of Medicine & Bachelor of Surgery (MBBS) is the foreign equivalent of a US medical degree. (2009)

2.  A three year Bachelor’s degree from India is equivalent to a US Bachelor’s degree. (2008)

3.  In some cases a three year Bachelor’s degree plus a a Master’s degree can be equivalent to a US Master’s degree.  (2007)

4.  Membership in India Institute of Chartered Accountants in not equivalent to a US degree. (2004)

5.  Multiple foreign degrees may be considered when evaluating degree equivalency. (2003)

6.  For advanced degree equivalencies,  five years of progressive experience requirement may be acquired in the US or abroad. (2003)

7.  Progressive experience is defined as post-baccalaureate experience that is demonstrated by advancing levels of responsibility and knowledge in the specialty. (2000)

Cancellation of Removal for Nonpermanent Residents

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Cancellation of removal for nonpermanent residents allows foreign nationals in the US who are currently in removal proceedings to remain in the US an obtain permanent residency (green card).  Removal may be canceled if the application meets the following four conditions:

1.  The applicant is currently in removal proceedings because he or she is inadmissible or deportable;

2.  The applicant has been physically and continuously present in the US for ten years;

3.  The applicant has had good moral character for that period of time;

4.  The applicant must not have been convicted of certain criminal offenses; and

5.  The applicant must demonstrate that removal would cause exceptional and extremely unusual hardship to his or her lawful permanent resident (LPR) or US citizen spouse, child or parent.

An applicant is barred from obtaining cancellation of removal if:

1.  He of she has previously been granted cancellation of removal, suspension of deportation or other relief under INA Section 212(c);

2.  He or she has persecuted others or is inadmissible under security or related grounds;

3.  He or she entered as a crewman after June 30, 1964;

4.  He or she was a J-1 visa holder for the purpose of graduate medical training; and

5.  J visa holders who are subject to INA Section 212(E) and have not completed the two year home residency requirement nor have received a J-1 visa waiver.

If the judge grants the applicant’s request for cancellation of removal, then the applicant will be able to adjust to lawful permanent resident (green card).  If the judge denies the applicant’s request for cancellation, he will enter an order of removal and the applicant will be removed from the US