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.
Immigration Lawyer Peter Messersmith
Widows of US Citizens Will Be Granted Deferred Action
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
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:
- 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
- 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.
- 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.
- 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.
- 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
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
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
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
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
Cancellation of Removal for Lawful Permanent Residents
Cancellation of removal is a form of discretionary relief available to all lawful permanent residents (LPRs) who are in removal proceedings. Removal may be cancelled if the application meets the following four conditions:
1. The applicant has been an LPR for at least five years;
2. The applicant has resided continuously in the US for seven years after having been admitted in any status;
3. The applicant has not been convicted of an aggravated felony; and
4. The applicant has not previously received a grant of cancellation or suspension of deportation.
Cancellation of removal is only available in immigration court before a judge. Also, because this form of relief is discretionary, the application must demonstrate to the judge why he should exercise his discretion in favor of the applicant.
Positive factors include family ties in the US, residence of long duration in the US, evidence of hardship to the applicant and family if removal occurs, service in the US military, employment history, business and property ties, evidence of value and service to the community, proof of genuine rehabilitation if applicant has a criminal record and any other evidence of applicant’s good character.
Negative factors include the nature and underlying circumstances of the grounds of removal, the presence of additional immigration violations, the existence of a criminal record and any other evidence of bad character or undesirability.
If the judge grants the applicant’s request for cancellation of removal, then the judge is effectively forgiving the basis of the removal proceeding and the application will retain his or her permanent residency and can remain in the US. 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 and will lose his or her LPR status.
Green Card Options for PhD Holders
In virtually all types of green card application, the foreign national seeking permanent residence must have a sponsor. Typically the sponsor is the applicant’s employer or there is some type of familial relationship. For certain PhD holders, or even PhD students, the foreign national can act as both the sponsor and the applicant.
The two paths to permanent residence that allow self-sponsorship are the EB-1 Alien of Extraordinary Ability category and the EB-2 National Interest Waiver (NIW) category. While both categories have stringent requirements, the Eb-1 category is much more restrictive and requires the applicant to prove that he or she is one of the top individuals in his or her area of expertise. Currently, there is no benefit to having an EB-1 application approved over an NIW application except for nationals of PR China and India. Unless bragging rights are important, most applicants would be better off applying through the NIW category because approvals are easier.
There are three keys to a successful EB-1 or NIW application.
1. Strong credentials. In our experience, a successful EB-1 applicant should have a PhD, 10+ journal publications, 40+ journal citations, 5+ conference proceedings and previous service for a journal reviewing manuscripts or membership in highly regarded professional organizations. These are not absolute minimums as we have obtained EB-1 approvals for clients with significantly weaker credentials but this should serve as a guide for potential applicants. In contrast to the EB-1 requirements, an NIW applicant need only a PhD with 3+ journal publications and 5+ journal citations.
2. Strong Recommendation Letters. Both EB-1 and NIW applicants should obtain at least 4 recommendation letters from various sources. These letters must be worded correctly or the USCIS officer reviewing the application will use the letters against the applicant to deny the case.
3. Persuasive Cover Letter. It is absolutely imperative to guide the USCIS officer through the application to educate them on the applicant’s accomplishments and why those accomplishments are superior to others. The cover letter must cite the applicable statutes as well as federal court cases to explain why the applicant meets the legal burden of proof. The burden of proof rests with the applicant and he or she must demonstrate eligibility for the category.
It normally takes about 12-18 months to get a decision on the EB-1 or NIW application. If the applicant fails to demonstrate eligibility and the case is denied, it can be appealed. Appeals generally take 12 months and most denials are sustained. The applicant may also choose to refile but in each application, the applicant must disclose previous filings. Without substantial new accomplishments, the case is likely to be denied again. Therefore, it is vital to present the best possible case to USCIS in the first application.
J-1 Visa Waiver No Objection Statement (NORI): India
Foreign nationals who enter the US in J-1 visa status or change their status in the US to J-1 may be subject to INA Section 212(E). Persons subject to 212(E) are required to return to their home country for an aggregate period of two years or obtain a J-1 visa waiver to waive this requirement before they may change their status in the US, obtain H-1B Visa, L-1 visa or permanent residency.
There are four avenues for obtaining a J-1 visa waiver but generally, the easiest way is to request a statement from the foreign national’s home country stating that there is no objection against the foreign national to remaining in the US without returning home for two years. While this is widely considered the easiest way to obtaining a waiver, it is in no way a sure thing. There are several US and foreign agencies that must support the applicant before the no objection letter is issued and the waiver is approved.
For Indian nationals, it’s necessary for the applicant to obtain clearance from the authorities concerned in India, namely
1. The State Government (Department of Home);
2. Department of Education, Ministry of Human Resources Development, Shastri Bhavan, New Delhi OR Ministry of Health & Planning, Government of India, New Delhi. (For medical professionals only); and
3. The concerned passport office from which the application obtained passport to come abroad.
In some cases, a request for clearance from each agency is sufficient. In others, a persuasive statement must be submitted before the agency will approve the request. After issuance of the NORI, the applicant must petition the U.S. Department of State (DOS) for issuance of the J1 waiver.