The Test of NYSDOT Third Prong for EB2-National Interest Waiver Petition

Question: I recently received a Request For Evidence for my NIW application, with the question of NYSDOT third prong of "whether a foreign national’s work benefits the national interest so much as to outweigh the competing interest in preserving the labor certification process." How could I understand and reply this request in my RFE response? Answer: The RFE process creates the opportunity for an alien applicant to emphasize evidence already in the record that the USCIS adjudicator may not have fully considered, to clear up misunderstandings, and to clarify issues and facts. The RFE also give an opportunity for alien applicants to provide additional evidence through the RFE process. The NYSDOT third prong of EB2-National Interest Waiver petition is difficult to satisfy in light of the USCIS bias toward the Labor Certification process. For this test, the alien applicant needs to prove that the alien’s work benefits the national interest so much as to outweigh the competing interest in preserving the labor certification process in that case. Undoubtedly this test would take into account many factors, most of which would be difficult to objectively measure or quantify. On the one hand, a researcher who develops a vaccine for HIV would probably outweigh the interest in preserving the job for a minimally qualified U.S. researcher who did not make this discovery. Here, strong testimonial letters are key to a successful RFE response. USCIS requires that a foreign national must present national benefits so great as to outweigh the national interest in preserving U.S. jobs for U.S. workers through the Labor Certification process. http://www.greencardapply.com/question/question12/question12_0919.htm http://www.greencardapply.com http://www.greencardfamily.com

The AAO's Culturally Unique Standard for P-3 Petitions

The AAO's Culturally Unique Standard for P-3 Petitions The United States provides many performance and teaching opportunities for musicians and other entertainers. The P-3 category is appropriate for artists and entertainers seeking to enter the U.S. for purposes related to culturally unique performances or presentations. The Administrative Appeals Office (AAO) recently handed down a critical interpretation of the term culturally unique in a case entitled Matter of Skirball Cultural Center. http://www.greencardapply.com/news/news12/news12_0816.htm Helpful to others seeking the P-3 category, this case interprets the concept of culturally unique more expansively, beyond purely traditional artistic forms from a particular country, region, or culture. Given the burgeoning levels of global migration through the decades, it is likely that the decision in this case will be applicable to other artists and performers who present unique and identifiable blends of cultures in their work. Background: Culturally Unique Requirement: The P-3 visa is available for artists or entertainers, whether individuals or groups, coming to the United States to perform, teach, or coach in a program that is considered culturally unique. The regulations further define this category to include unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performances or presentations. As explained below, the argument in the Matter of Skirball Cultural Center centered on whether a form of music, which was the blend of several cultures, could qualify as culturally unique. Blending of Cultures Creates New, Unique Culture: The USCIS initially denied a P-3 petition because the musical group being sponsored intended to perform music that was "klezmer (Jewish music of Eastern Europe) with Latin and South American influences." The seven sponsored musicians were Jewish musicians from Argentina. Their musical influences came from their Jewish and Eastern European cultural heritage, as well as from their home in Argentina. The P visa petitioner provided the USCIS with evidence to show that this musical group was culturally unique. However, the USCIS denied the petition, reasoning that the type of music performed by the group was a mixture of different musical traditions, from different parts of the world - Eastern Europe and Latin and South America. The music, therefore, did not qualify as culturally unique, because this style was not specific to one place or one culture. The AAO disagreed with the position of the USCIS, and concluded that a mixture of different traditions, practices or styles could be combined to create something new. The law also allows for this new style to be something that is culturally unique to a "group of persons." The AAO explains that, in this case, the group of persons is South Americans born to Eastern European immigrants with a distinct Jewish Argentine culture and identity. Immigration Pattern Reflected in Decision: While this case is limited to the P-3 category, it speaks to us of the greater impact immigration patterns have upon culture. Immigrants bring parts of their unique cultural influences with them to their adopted countries, and the culture of their new homes is incorporated into their lives. This blend of multiple, often very distinct cultures can create a new, identifiable culture. This is evident in art, in food, and in identifiable forms of music. http://www.greencardapply.com http://www.greencardfamily.com

The "Good Cause for Termination" and the Requirement of “Permanent Employment” For EB1-OR Petitions

The "Good Cause for Termination" and the Requirement of “Permanent Employment” For EB1-OR Petitions The “good cause for termination” clause has been an important issue when adjudicating EB1-OR petitions. This clause is to be included in employment offers to ensure that the job is not “at will” employment. “At will” employment means that the employer can terminate an employee at any time with any or no cause at all. This clause was included to prevent this from happening and making sure employment was only terminated if there was a good cause for it. http://www.greencardapply.com/news/news12/news12_0825.htm Some employers have not been including a “good cause for termination” clause in the employment offers, as it raises legal and business issues for them and may be impractical for them. Some adjudicators of EB1-OR petitions for researchers have determined the outcome of the petition simply on the basis if the employment offer included this clause. According to the USCIS’ memo, EB1-OR petitions should not be denied simply because the offer of employment is lacking a “good cause for termination” clause. However, it must be indicated that the employment offer is indefinite or unlimited in duration and that the employee will have an “expectation of continued employment.” This may be beneficial to many of petitioners because petitions will not automatically be denied because this clause is missing, as long as the employment offer has an “expectation of continued employment.” Also, employers may be more willing to apply through EB1-OR if the “good cause for termination clause” does not have to be present. Applying through the EB1-OR petition may allow employees begin working sooner than applying through a different process, such as NIW. Furthermore, for tenured or tenure-track positions, a “good cause for termination” clause is not mandatory and petitions should not be denied on the lack of one. The adjudicators of the petition should evaluate the petition by determining the nature of the position – if it is tenured or tenure track position. Those positions in which the employee does not have expectation of long-term employment, such as temporary or adjunct positions and limited duration fellowships will not be considered tenured or tenured-track positions by the USCIS. http://www.greencardapply.com http://www.greencardfamily.com

Helpful Guide for Students and Exchange Visitors Who Intend to Travel Outside of the United States

Helpful Guide for Students and Exchange Visitors Who Intend to Travel Outside of the United States U.S. Customs and Border Protection has created a helpful guide for students and exchange visitors who intend to travel outside of the United States. The arrival procedures outlined in this guide, which can be found on the CBP WebSite, can help minimize waiting times at the U.S. ports of entry (POEs), and reduce the need for the issuance of the Notice to Student or Exchange Visitor (I-515A). http://www.greencardapply.com/news/news12/news12_0909.htm The I-515A is issued to students and exchange visitors attempting to enter the United States in F-1, M-1, and J-1 statuses when they forget the necessary travel paperwork or travel with unsigned or outdated travel documents. The form allows for lawful admission to the United States for a period of 30 days, during which time students must remit appropriate documentation. The failure to timely submit the required documentation may result in termination of the related Student and Exchange Visitor Information System (SEVIS) records. According to the CBP, careful planning by students and exchange visitors can ensure that delays at the POE are minimal and reduce the need for issuance of the I-515A. It therefore would be better for everyone involved - the student / exchange visitor, the school, and the U.S. government - for F-1, M-1, and J-1 foreign nationals to travel with appropriate documents, as described below. In addition, the CBP suggests that students in F-1, M-1, and J-1 status carry evidence of their student or exchange visitor status, such as recent tuition receipts, transcripts, and acceptance letters, as well as the name and contact information of the Designated School Official (DSO) or Responsible Officer (RO). It is also advisable that students and exchange visitors prepare their own affidavits, verifying the status of their travel documents. Although these requirements are not new, many routinely forget to obtain proper documentation that would allow them to travel safely to the United States. While these individuals are fortunate that the I-515A procedure is in place, so that they may gain temporary admission to the United States, it would be best to avoid this process altogether. Those who are subject to these requirements should plan well in advance of travel to obtain proper documentation. In case of emergency, the documentation should be requested immediately all efforts should be made to have this in hand when seeking to reenter the United States. http://www.greencardapply.com http://www.greencardfamily.com

How to Respond to USCIS Request for Evidence

What Is a USCIS Request for Evidence, and How to Respond to a Request for Evidence Whether you’re applying for a visa, a green card, asylum or an extension of stay, you may receive a Request for Evidence from US Citizenship and Immigration Services at some point during the application process. http://www.greencardapply.com/news/news12/news12_0919.htm Hundreds of thousands of petitions are filed with USCIS every year, and receiving a Request for Evidence is common — just make sure you respond to it within the designated period of time. Nearly every USCIS application requires some kind of documentation — from personal documents and translations to photographs, bills and correspondence. This evidence is used to determine important factors in your immigration case, such as whether your marriage is real or fraudulent or whether you have enough money to support yourself and your family. If you do not send enough evidence, or if the documentation is incomplete or incorrect, you may receive a Request for Evidence from USCIS. Many people become concerned after receiving a Request for Evidence, but an RFE is not the same thing as a Notice of Intent to Deny from USCIS. A Request for Evidence simply means that you will need to submit additional paperwork, documents or translations. On the other hand, a Notice of Intent to Deny could mean that sufficient evidence was provided, but it may not be able to establish eligibility for the petition being sought. USCIS will almost always specify on the Request for Evidence form the additional documents that they would like to see to continue processing your application. If you are not in possession of all of the evidence USCIS is requesting, make sure to include as many other types of evidence as possible that would establish the eligibility of your case. Photocopies of personal documents, photographs and bills are acceptable. Clip together the evidence with the original Request for Evidence form and mail it to the address listed on the form. You can include a cover letter that lists your additional evidence, but make sure the Request for Evidence is the top sheet in your envelope. If you have documents or correspondence in another language that can be used to support your case, have them translated by a professional translator. USCIS has been known to send Requests for Evidence to those who chose to translate their documents themselves instead of obtaining a certified, notarized translation. The most important thing to do if you receive a Request for Evidence from USCIS is to respond within the given time frame. USCIS typically asks for a response within 30 days. Applicants who are not in the United States may be given 42 to 84 days to respond. Not replying on time may result in the denial of your application. Responding to a Request for Evidence from USCIS should be any US immigrant’s top priority. http://www.greencardapply.com http://www.greencardfamily.com