The EB1 Immigration Categories and the Persons of Extraordinary Ability

The EB1 Immigration Categories and the Persons of Extraordinary Ability EB1 has three separate subcategories of case types that can enjoy this classification. The unifying element is that none of these cases requires a labor certification. Each starts at the I-140 petition stage. The categories are: Persons of Extraordinary Ability (EB1A); Outstanding Professors and Researchers (EB1B); and Multinational Executives and Managers (EB1C). There are no other types of EB1 cases. A labor certification-based EB2 or EB3 cannot simply be switched over to EB1 when an individual has more work experience, etc. http://www.greencardapply.com/news/news12/news12_0725.htm The EB1 - Extraordinary Ability category is intended for the small percentage of individuals who have risen to the very top of their respective fields of endeavor, and can be based on self-sponsorship. That is, the foreign national does not need an employer as the sponsor. The person of "extraordinary ability," however, must seek to enter and/or remain in the United States to continue to work in his or her area of prospective benefit to the U.S. The extraordinary ability can be in the sciences, arts, education, business, or athletics. This ability must be demonstrated by sustained national or international acclaim. There must be extensive documentation of the recognized achievements in the field. The required evidence of sustained national or international acclaim can include evidence of a one-time achievement, such as a major international award. The typical example of this is a Nobel Prize. For those who have not received such accolades, it is necessary to show documentation of three categories of evidence out of a list of ten. The categories of evidence are: 1. documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor 2. documentation of membership to associations in the field for which the classification is sought, which require outstanding achievements of their members as judged by recognized national or international experts in their disciplines or fields 3. evidence of the candidate's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought 4. published material about the individual in professional or major trade publications or other major media, relating to the foreign national's work in the field for which classification is sought 5. evidence of the foreign national's authorship of scholarly articles in the field, in professional or major trade publications or other major media 6. evidence of the foreign national's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field 7. evidence of the display of the foreign national's work in the field of artistic exhibitions or showcases 8. evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales. 9. evidence that the foreign national has commanded a high salary or other significantly high remuneration for services, in relation to others in the field 10. evidence that the foreign national has performed in a leading or critical role for organizations that have a distinguished reputation. http://www.greencardapply.com http://www.greencardfamily.com

The EB1 Multinational Manager or Executive Green Card Application

The EB1 Multinational Manager or Executive Green Card Application The EB-1 Multinational Manager or Executive Green Card is an immigration category that will permit a foreign worker to live and work in the United States on a permanent basis. Once the green card is issued, the worker is free to do what he or she likes and may discontinue working for the employer/sponsor. To qualify for the EB-1 Multinational Manager or Executive Green Card, an applicant must prove all of the following: 1) There must be a U.S. company or organization that is active and conducts regular and systematic operations It is called the “U.S. Employer.” A U.S. company or organization must be established for at least one year and must be active. Its operations must occur on a regular, ongoing basis. Applicants must provide evidence of activity, such as the business registration, lease or deed for business premises, occupational license, photographs of the business premises and operations, proof that the business has employees (such payroll tax records), advertising, receipts for business expenses, invoices, contracts, and recent financial information (such as balance sheets, financial statements, company income tax return, and recent bank statements for the company). 2) There must be a company or organization located outside of the U.S. that is active and conducts regular and systematic operations It is called the “Foreign Employer.” The applicant must provide evidence that a company or organization located outside the U.S. is currently active and conducts business on a regular, ongoing basis. This foreign company or organization must continue to be active for the duration of the applicant’s EB-1 application. Once the green card is approved, it does not matter if the Foreign Employer is no longer active. 3) The U.S. Employer and the Foreign Employer must be related entities To be “related entities,” the U.S. Employer and the Foreign Employer must be affiliates OR one should be the subsidiary of the other. To qualify as affiliates, the same individual or groups of individuals must own a controlling interest (at least 50%) in both the U.S. Employer and the Foreign Employer. To qualify as a subsidiary, the Foreign Employer must own the U.S. Employer or vice versa. Evidence must be provided to show who owns the U.S. Employer and the Foreign Employer, such as U.S. and foreign company income tax returns and stock certificates. http://www.greencardapply.com/news/news12/news12_0702.htm For example, if Sam owns 100% of an active company in the U.K., and recently purchased 50% of an active business in the U.S., then he owns a controlling interest in both companies. The companies are affiliates, meaning they are related and will qualify for an L-1 Visa. The U.S. Employer and the Foreign Employer do not have to engage in the same line of business, though it helps the application if there is some logical connection between the two entities. http://www.greencardapply.com http://www.greencardfamily.com

The Requirement of “Permanent Employment” for EB1 Outstanding Professors and Researchers Petitions

The Requirement of “Permanent Employment” for EB1 Outstanding Professors and Researchers Petitions The EB1-OR category was created for Outstanding Professors and Researchers in order to speed up the process for outstanding professors and researchers to become permanent residents. One of the requirements for EB1-OR is that the alien beneficiary receives a permanent job offer from the sponsoring employer. The USCIS has clarified the definition of “permanent employment” when considering EB1-OR petitions. http://www.greencardapply.com/news/news12/news12_0805.htm According to current definitions, “permanent” is defined as “either tenured, tenure-track, or for an indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.” A major concern for many has been research positions that are based on grant money received yearly. This usually means that the researchers are employed on one-year contracts. The USCIS says that if the employer petitioning for the alien shows the intention to continue to get funding and gives a reasonable expectation that funding will continue, then the employment may be considered “permanent.” The USCIS has asked adjudicators to take into consideration the circumstance of the job and its benefits. If a research position has a term limit of one year, but evidence is provided that the job will be continued beyond that one year, then it can be considered a permanent job. This is good news for many petitioners who employee researchers or are researchers. In the past, researchers may have been reluctant to file an EB1-OR petition since the job was not permanent, but was instead determined by funding on a yearly basis. Now, instead of having to file through a process such as EB2 National Interest Waiver (NIW), employers wishing to employee researchers may be able to file through EB1-OR, which in some cases has a shorter wait time than the NIW. This means that the employee can start working for his/her employer sooner. http://www.greencardapply.com http://www.greencardfamily.com

Indian and Chinese EB-2 Visa Cut-Off Dates

The State Department reportedly notified the USCIS that as of April 11, 2012, it had exhausted Indian/Chinese EB-2 visa numbers for FY 2012 and would not authorize such EB-2 visas to the USCIS. This raises a question for the State Department as to what cut-off dates they will publish for the next several months for Indian and Chinese EB-2 category. If they publish that India/China EB-2 is "Unavailable," the USCIS will not be able to receive any new EB-485 applications no matter how earlier priority dates the Indians and Chinese EB-2 cases have, not to mention their inability to adjudicate and approve pending cases. On the other hand, should they decide any specific cut-off dates for these categories, there arises a legal question as to whether the USCIS can refuse approval of the pending EB-485 applications or new EB-485 applications with earlier priority dates. The situation for May 2012 Visa Bulletin was different in that at the time the May 2012 Visa Bulletin was published, it had no information that the Indian/Chinese EB-2 annual visa allocations have been exhausted. Ideally, after the State Department learned that the visa number had been exhausted, they could have published revised visa bulleting for May 2012, which they opted not to. These two departments learned a valuable lesson from a political and legal disaster during the FY 2007 Visa Bulletin fiasco period. Additionally, the issue involves a more practical stake involved for the USCIS. Hypothetically, should the State Department set a cut-off date for the Indian/Chinese EB-2, the USCIS will be required to continuously receive EB-485 applications from Indian and Chinese professional workers with a priority date earlier than the cut-off date, albeit inability of the USCIS to approve any such pending EB-485 applications regardless of how far back of priority dates one has. This situation will keep the USCIS busy with continuing in-flow of fee funds to support the agency financially without any financial crisis. Imagine what happens if the State Department set the EB-2 visa numbers "Unavailable" for four months! During the four months, they will not be able to receive any new Indian/Chinese EB-2 I-485 applications!? Imagine its impact on the USCIS finance and idle resources!? Very curious of what has been cooked behind the spotlight on this matter between the State Department and the USCIS for the upcoming Visa Bulletins. http://www.greencardapply.com/news/news12/news12_0508.htm www.greencardfamily.com www.greencardapply.com

Employers Face Increasing Audits and Supervisory Recruitment in PERM

The Office of Foreign Labor Certification reported in the recent stakeholder meeting that the audits and supervised recruitment would increase. At the time of report, approximately 30% cases faced either audit and supervised recruitment. In a number of cases, after receiving the responses to the audits, the agency has turned the cases into a supervised recruitment track in a number of cases. This trend has resulted in a tremendous delay in PERM processing times and potential denials for the employers that have been picked for such audits and supervised recruitment. Strikingly, such cases have been denied after wasting a tremendous time and expenses for certain incredibly unbelievable "minor" "trivial" "technical" matters. For instances, there have been a number of reports that after the audit or supervised recruitment, the agency denied the application for the reason that in the job bank job order, employer checked the box of driver license requirement or drug testing requirement, travel requirement, etc. pursuant to the job bank formats when those requirements had not been printed in the advertisements. Another large number of denials have been produced for failure to justify why the unqualified U.S. workers were not offered an on-the-job-training when arguably such on-the-job-training would make such unqualified workers qualified for the job. Another traps included missing of information among the recruitment record in a minor matter or the employer failed to contact the applicants and failed to preserve evidence. Employers are strongly advised to pay attention to the details and good record-keeping to survive in the new permanent labor certification environment and not to experience waste of money and time and denials. http://www.greencardapply.com/news/news12/news12_0509.htm www.greencardfamily.com www.greencardapply.com

The Recent I-485 Application Trends and Tracking

In the past few months, it has been possible for many foreign nationals to advance to the final stage in the permanent residence (green card) process. The U.S. Department of State (DOS) Visa Bulletin has shown employment-based, second preference (EB2) cutoff dates for India and China to be moving forward significantly since November 2011. This development has created much excitement, with numerous applicants seeking insight into case processing trends and timeframes. There is currently a very clear trend toward rapid I-485 case processing. This begins with the issuance of receipt notices almost immediately upon filing, and the fingerprinting notices follow early in the process. EAD and AP approvals typically are received well in advance of the 90 days the U.S. Citizenship and Immigration Services (USCIS) is allowed for processing these benefits. While it would be unwise to make plans that rely on receiving the EAD and/or AP rapidly, at this time, they are often in hand within 60 days of filing, and sometimes even earlier. Finally, the much anticipated I-485 approval notices are arriving daily. While total processing time varies from filing to approval, it often takes less than five months. Individuals should not become overly concerned if they see others who have cases moving a bit more quickly. Cases are neither all processed in a completely uniform manner, nor at the same pace. There are differences from one USCIS service center to another, as well as numerous other factors that contribute to variation in the time each case takes to process. The USCIS is doing a remarkable job, quickly moving through each step in the I-485 case process. This is particularly noteworthy, given the volume of I-485 cases now eligible for filing and adjudication due to the movement of the cutoff dates. This is good news for those who have been able to file in the past few months. http://www.greencardapply.com/news/news12/news12_0507.htm www.greencardfamily.com www.greencardapply.com

Can I Transfer My Priority Date from the Labor Certification Case to NIW?

Question: I have an approved EB3 Labor Certification based Form I-140 application from my employer, with a priority date of last year September. Due to the immigration visa number retrogression in my home country, I can not apply for the status adjustment for U.S. Permanent Resident of I-485 form. Since I have a PhD degree, if I apply for EB2 National Interest Waiver Immigration category now, can I transfer my earlier priority date from the Labor Certification case to the later case filed in EB2 National Interest Waiver Immigration category? -------------------------------------------------------------------------------- Answer: Yes, an individual with an earlier priority date established through an approved I-140 petition in one employment-based category may transfer that earlier priority date for a later case filed in a different employment-based category. This can be a benefit for you when the retention of the earlier priority date is permitted for a later filed EB2 National Interest Waiver case. Please also note that this procedure does not work if the initial I-140 petition has been revoked by your employer, or by USCIS due to fraud, or for use in a labor substitution case. http://www.greencardapply.com/question/question12/question12_0509.htm www.greencardfamily.com www.greencardapply.com