Employment Immigration

The United States makes approximately 140,000 immigrant visas available each fiscal year for aliens as well as their spouses and children who wish to immigrate to the United States based on their occupational skills. An individual needs the right combination of skills, education, and/or work experience to qualify for an employment-based immigrant visa and may be able to permanently reside in the United States. There are five employment-based immigrant visa preferences categories.

The United States Citizenship and Immigration Services (USCIS) allows certain petitioners who have filed a Form I-140, Immigrant Petition for Alien Worker, to request speedy processing of the Form I-140 through the Premium Processing Service. In order to request premium processing, the petitioner must have filed a Form I-140 in a category that allows for premium processing, and must file a Form I-907, Request for Premium Processing Service, along with a fee. This article will explain the rules and benefits of the Premium Processing Service for employment-based petitions.

The first preference category is EB1 (EB1A), which is for individuals with extraordinary abilities in the sciences, arts, education, business, or athletics. This preference category also includes outstanding professors or researchers as well as multinational executives and managers. EB-1 applicants can self-petition for an Immigrant Visa for Alien Worker, If approved, such immigrant visa petition will result in a green card. To initiate the process, the applicant need to file Form I-140, with the USCIS.

Aliens seeking an immigrant visa in the employment-based first preference category (EB1) for aliens of extraordinary ability (EB1A) is permitted to self-petition and do not need to provide evidence of a job offer in order to have his or her petition approved or to obtain an immigrant visa or adjustment of status. However, just because the EB1A category permits self-petitioning this does not mean that an individual seeking a visa must petition for him or herself. An employer may file a petition in the EB1A category on behalf of a beneficiary and include evidence of a specific job offer, which would be required for most other employment-based preference categories. This brings up an interesting question: What happens in the case of an individual who is the beneficiary of an approved EB1A immigrant visa petition but whose relationship with the employer lapses before the individual seeks adjustment of status? In this article, we will explore the issue through a question and answer format, discovering in the end that such an individual is eligible to continue pursuing adjustment of status without a new job offer, provided that he or she otherwise meets all of the applicable requirements.

The EB1B category is a subpart of the broader first preference EB1 category for employment-based immigrant visas. The EB1B category, found in section 203(b)(1)(B) of the Immigration and Nationality Act (INA), covers “outstanding professors and researchers.” This article will explain the requirements for qualifying for a petition in the EB1B category, and the requisite evidence to support such a petition.

Immigration and Nationality Act (INA), provides for an immigrant visa category reserved for individuals who conform to the definition of the Multinational Executive or Manager. This category is known as EB1C. To be successful in applying for this category, the petitioning entity needs to convince USCIS adjudicators that the beneficiary: (1) had been employed outside the United States for at least one year in the last three years immediately preceding the application; (2) in a managerial or executive capacity; (3) now seeks to enter the United States to continue that employment in a managerial or executive capacity with the same firm, corporation, organization or legal entity or its legitimate subsidiary or affiliate.

Thoroughly documenting and presenting all relevant evidence to support any immigration application is a prudent thing to do if positive adjudication result is kept in mind. It is especially important for highly technical petitions including those for EB1-C employment based immigrant category for Multinational Managers and Executives where just about every eligibility element has thus far been addressed, interpreted and litigated.

The National Interest Waiver allows certain Employment-Based applicants to forego much of the hurdles in other Employment-based applications, mainly the labor certification. Like the labor certification, the National Interest Waiver was established in the interests of the United States. This waiver, however, allows advanced degree professionals or those with exceptional abilities to contribute to the development of the nation without the.

On December 27, 2016, the Administrative Appeals Office (AAO) issued a precedent decision in the Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). The decision addressed when the United States Citizenship and Immigration Services (USCIS) may grant a national interest waiver to a petitioner seeking an immigrant visa for a foreign national in the employment-based second preference category. The AAO’s decision vacated a previous precedent decision on the same issue in the Matter of New York State Dep’t of Transportation (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). In this article, we will examine the relevant statutes, the AAO’s now-vacated test from NYSDOT, and the new analytical framework established in the instant case.

On December 27, 2016, the Administrative Appeals Office (AAO) issued a precedent decision in the Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). In this article, we will examine how the new analytical framework in Dhanasar was applied to the facts of the instant case to find that the petitioner should be granted an EB2 national interest waiver.

On March 9, 2016, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum making the Administrative Appeals Office’s (AAO’s) decision in the Matter of H-V-P-, Adopted Decision 2016-01 (AAO Feb. 9, 2016) an adopted decision. The AAO’s decision in the Matter of H-V-P- clarifies that medical specialists who agree to practice in an area designated by the Secretary of Health and Human Services as having a shortage of medical professionals may be eligible for the physician national interest waiver found in section 203(b)(2)(B)(ii) of the Immigration and Nationality Act (INA). The significance of the decision is that the current HHS designations of a medical shortage area are “ostensibly limited to only primary care physicians,” thus calling into question whether a medical specialist can qualify for a National Interest Waiver. The AAO rendered its decision based on the fact that the plain language of the provision providing for National Interest Waivers for physicians does not distinguish between primary care physicians and medical specialists.

This employment based immigration route is outlined in the INA §203(b)(2) as codified in U.S.C § 153(b)(2. The applicable regulations can be found in 8 C.F.R 204.(5(k). 28.6% of the worldwide visas plus unused first preference visas are reserved for this preference category. As a general matter and given the more stringent educational requirements, this category is less backlogged and as such more preferable for qualified individuals.

In order for an immigrant visa petition in the Second Preference (EB2) category as an advanced degree professional, the beneficiary of the petition must meet certain educational benchmarks in order to qualify for EB2 classification. Furthermore, the petition must be for a position that requires an advanced degree professional. In this article, we will explain the rules for meeting the degree equivalency requirements as an “advanced degree professional,” and the issues that commonly appear in such situations.

On April 17, 2017, the United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum 602-0144, designating a decision of the Administrative Appeals Office (AAO) as an adopted decision, that is, binding policy, for the USCIS. The decision, now titled the Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017), dealt with assessing provisional certificates from colleges or universities for purpose of evaluating whether they show that an employment-based petition beneficiary completed his or her degree requirements. The decision clarified that the “USCIS must conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree.” Provided that the analysis shows that these requirements have been met, the “USCIS will consider the date of the provisional certificate for purposes of calculating post-baccalaureate experience.” In this article, we will discuss the decision in the Matter of O-A-, Inc., and what its adoption as binding policy guidance for the USCIS means going forward.

The third preference visa category is EB3. This visa category is for professionals, skilled, or other workers. Who is Eligible? There are three groups of people who are eligible for the EB3 visa category. The first group is professionals: Professionals should at minimum hold a bachelor’s degree, or the foreign equivalent and work in the field in which they earned their degree. A professional, for purposes of this visa category, can also be someone who is a member of the profession.

In order for a petition in the third preference employment-based (EB3) immigrant visa category to be approvable, the beneficiary of the petition must meet certain educational and/or experience requirements. If the petition beneficiary is relying upon a foreign baccalaureate degree for EB3 skilled worker classification, it must be demonstrated on the petition that the degree is the equivalent of a U.S. baccalaureate degree. In this article, we will explore degree equivalency in the EB3 context.

This preference category focuses on Special Immigrants. Special Immigrants, eligible under the EB-4 visa are: Physicians (International Medical Graduates); Religious Workers; International Organization Employees; Armed Forces Members; Broadcasters; Iraqi/Afghan Translators; Iraqis who have assisted the United States; Panama Canal Zone; Retired NATO-6 Employees; Spouses and Children of Deceased NATO-6 Employees.

Certain long-term international employees on G4 status and NATO-6 status and immediate relatives are eligible to obtain immigrant visas in the EB4 special immigrant category. In this article, we will review the statutes, regulations, and agency guidance regarding EB4 eligibility for certain long-term international organization employees and their immediate relatives.

On November 20, 2015, the United States Citizenship and Immigration Services (USCIS) released a draft policy memorandum (Draft PM-602-0122) titled “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Section 204(j) Job Portability.” The final memorandum will update chapters 20.2 and 22.2 of the Adjudicator’s Field Manual (AFM). The memorandum was open for public review and feedback through January 4, 2016. In this post, I will review key points in the draft memorandum along with comments submitted by the American Immigration Lawyers Association (AILA) on January 4.

On November 8, 2017, the United States Citizenship and Immigration Services (USCIS) issued a policy memorandum (PM) (PM-602-0148) designating a decision of the Administrative Appeals Office (AAO) as an “adopted decision.” The decision, Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), now constitutes binding policy guidance on all USCIS personnel. Matter of G- Inc. establishes rules for petitions for EB1C function managers. The AAO held that in order for a petitioner to establish that a beneficiary will manage an essential function, the petitioner must establish “that the function is a clearly defined activity and is core to the organization.” The AAO then held that once the petitioner demonstrates the essential function, the petitioner must then establish that the beneficiary’s position meets the statutory criteria set forth in section 101(a)(44)(A) of the Immigration and Nationality Act, which defines “managerial capacity.” First, the petitioner must show that the beneficiary will primarily manage, as opposed to perform, the specified function. Second, the petitioner must show that the beneficiary will “act at a senior level within the organizational hierarchy or with respect to the function manager. Finally, the petitioner must show that the beneficiary will “exercise discretion over the function’s day to day operations.”

On March 19, 2018, the United States Citizenship and Immigration Services (USCIS) adopted a decision of the Administrative Appeals Office (AAO) as binding policy guidance on all USCIS employees. The decision, now titled Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018), dealt with the “one-in-three” foreign employment requirement for EB1C immigrant multinational managers or executives where there is an interruption in the qualifying employment of the beneficiary. It clarified “that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employ for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the one-in-three foreign employment requirement for immigrant classification as a multinational manager or executive.” In such a case, the beneficiary “would need an additional year of qualifying employment abroad before he or she could once again qualify.” In this article, we will examine the factual and procedural history of Matter of S-P-, Inc., the AAO’s reasoning and conclusions, and what the decision will mean going forward as binding USCIS policy.

In this article, we examine a series of immigration precedent decisions, starting with Matter of Katigbak, 14 I&N Dec. 45 (Reg. Comm. 1971), which dealt with the requirement that an employment-based or family-sponsored immigrant visa petition must be approvable when filed.

The DHS interprets the EB2 exceptional ability in the arts classification to apply to certain athletes. In this article, we will examine the background of the issue and how the current policies came to be.

In this article, we will examine administrative policy on when and whether a lawyer is classifiable as an employment-based first preference immigrant as an alien with extraordinary ability in one of five specified categories. In general, the position of the Department of Homeland Security (DHS) and former Immigration and Naturalization Service (INS) is that a lawyer who is a member of the professions is properly classifiable as an employment-based second preference immigrant. Being a lawyer, however, does not prevent an alien from establishing eligibility in the employment-based first preference category if he or she meets the evidentiary criteria. We will also address certain issues involving lawyers and the second- and third-preferences, which extend from our discussion of lawyers and the first-preference extraordinary ability category.

On August 14, 1967, the former Immigration and Naturalization Service (INS) published the decision of an INS regional commissioner in Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). The decision concerned whether a petitioner seeking to accord status under the former employment-based sixth preference category had the ability to pay the beneficiary, notwithstanding the petitioner’s running a net profit of only $280 in 1966, while the petition was pending. The Regional Commissioner assessed evidence in the record beyond the petitioner’s net income and assets in 1966, and ultimately concluded that the evidence established that the petitioner did in fact have the ability to pay the beneficiary.

In order for an employment-based immigrant visa petition to be approved, the petitioning employer must establish that it has the ability to pay the proffered wage. The employer must establish that it has the ability to pay the proffered wage at the time the priority date for the petition is established and until the petition beneficiary actually obtains lawful permanent resident status. In this article, we will examine whether and when the personal assets of individuals may be considered in determining whether the petitioner has the ability to pay the proffered wage.