EB-1 Petition Analysis: Kazarian case for Extraordinary Ability and Outstanding Researcher/Professor (Part 2)

EB-1 Petition Analysis: Kazarian case for Extraordinary Ability and Outstanding Researcher/Professor (Part 2) The EB1-Extraordinary Ability (EA1A or EB1-EA) and EB1 Outstanding Researcher or Outstanding Professor(EB1B or EB1-OR) category has high standards for successfully obtaining approval. These two EB1 categories have become even more difficult, in large part due to a change in the way supporting evidence is analyzed by the USCIS. An explanation of the approach is set forth in an USCIS memorandum, relying on a case entitled Kazarian v. USCIS. The history of USCIS changes and the current, controversial, two-step analysis described in the USCIS memorandum are described here. The USCIS policy memo entitled, Evaluation of Evidentiary Criteria in Certain I-140 Petitions, provides instructions to USCIS adjudicators of Extraordinary Ability, Outstanding Professor or Researcher, and Exceptional Ability I-140 petitions. This memo outlines a two-step adjudication analysis based on the decision by the Court of Appeals for the Ninth Circuit in Kazarian v. USCIS. The USCIS issued a final memo on December 22, 2010. An interim memo previously issued on April 18, 2010 contained the same guidelines for adjudication of the affected types of petitions. The memo instructs USCIS adjudicators to use an approach to evidence evaluation referenced in the Kazarian case. This review consists of a "two-part approach where the evidence is first counted and then considered in the context of a final merits determination." The USCIS first evaluates the evidence presented to determine whether the initial evidentiary requirements are met - fitting within the listed categories of evidence pertinent to the requested immigration category. The second part of the analysis essentially involves reviewing the evidence as a whole to determine whether the foreign national meets the overall eligibility standard for the category. Since the Kazarian case, and the issuance of the interim and final memos, USCIS adjudicators and the Administrative Appeals Office (AAO) have been applying these instructions narrowly, interpreting them as requiring the application of the second part of the "Kazarian approach" in every case. This has resulted in large numbers of petition denials that potentially were approvable prior this change. The memo purports to base the guidance it contains on the Kazarian decision. The two-step framework for the analysis, however, was established earlier by other federal court decisions. The court in the Kazarian case did not have to apply two steps, as it found that the petitioner did not meet the required initial evidentiary criteria in the Extraordinary Ability category. As such, the holding in that case was not related to the two-step adjudication framework. Instead, the court warned that the USCIS was not to "unilaterally impose novel substantive or evidentiary requirements." This essentially means that the USCIS is supposed to review the evidence under the legal and regulatory criteria, as stated, and not put their own "spin" on the requirements by relying on the decision's dicta. In the Kazarian case, the court did not reach the second step in the analysis, as the petitioner did not sufficiently meet the initial evidentiary criteria. The trend involves a final adjudication from the USCIS using the second step in its analysis in most cases, without regard to the findings made during the initial review of the evidence. In many cases where the USCIS determines that the petitioner meets the initial evidentiary requirements, denials still are issued. This is due to the second step, wherein the USCIS often determines that the evidence, taken in totality, does not show that the petitioner has reached the level of accomplishment required for the requested classification. Adjudication trends since the issuance of the USCIS memo concern many in the immigration community. The USCIS interpretation of the Kazarian decision has altered long-standing adjudication principles. http://www.greencardapply.com/news/news13/news13_0610.htm www.greencardapply.com www.greencardfamily.com

Do I have the Status Problem after the J1 Visa Expiration and Before the H-1B Approval?

Question: As a visiting scholar, my J1 visa will expire at the end of this month. A company wants to hire me as a research engineer, and has applied the H1B visa for me to change the status. Due to the H1B visa yearly gap, the H1B application is pending, and I can work for the company only after October 1, 2013. Do you think I may have the status problem after the J1 visa expiration and before the H1B approval? -------------------------------------------------------------------------------- Answer: To qualify for the H-1B visa approval to change your status from J1 to H-1B in the United States, you need to keep a legal nonimmigrant status on October 1, 2013. Since your J1 visa will expire at the end of this month, USCIS may approve the company's H-1B petition for an alien's worker, but you may not be able to change your status from J1 to H-1B in the United States. If that situation happens, after the H-1B petition is approved for the employer, you need to travel to your home country to get the H-1B visa on your passport at an U.S. Embassy, and then return to U.S. to work for this company. http://www.greencardapply.com/question/question13/question13_0602.htm www.greencardapply.com www.greencardfamily.com

The No "Successor-in-interest" Nature for Corporate Changes by Merger or Acquisition

Question: I am in a unique situation. I have filed for my H1B through company A and pretty recently got a 3 year extension too. I also have an approved Labor and I-140 through them. This May the company had an asset only acquisition and is now operating under a new name and Employee ID. Since we are all open to file our I-485 I contacted my immigration lawyer and explained the company reorganization. At first the lawyer was claiming that we should file an Amended I-140 due to the reorganization. My company lawyer informed my Immigration Lawyer that the new company has not taken over the liabilities of the old company, it only took over the assets. Now my immigration lawyer claims that I will have to transfer my H1B to the new company and move forward with my original I-485 application and then port after 180 days. I wanted to get a second opinion from someone on this board. -------------------------------------------------------------------------------- Answer: An amended H-1B petition is required, if your current employer undergoes a manger or acquisition AND if the new company does NOT "succeed the interest and obligations of the petitioning employer", and your employment conditions have changed. The corporate changes by merger or acquisition with no "successor-in-interest" nature will have affect on the H1B employee's status. For your case, your company lawyer informed your immigration lawyer that the new company has not taken over the liabilities of the old company, which means that the acquisition is not "succeed the interest and obligations of the petitioning employer", so your current employer needs to inform the USCIS for this changes which will affect your H1B status. http://www.greencardapply.com/question/question13/question13_0609.htm www.greencardapply.com www.greencardfamily.com

how to file the financial sponsorship for his Green Card application.

Help Desk: I am a U.S. citizen, and my boy friend is from Nepal. He came here as a tourist and stayed illegal now for 11 months. We would like to get married in New York City soon. I want to know how to file the financial sponsorship for his Green Card application. Thank you. -------------------------------------------------------------------------------- Answer: Because you are a U.S. citizen, and your boy friend was inspected by the USCIS when he entered the U.S., he will be eligible to process his Green Cad application inside U.S. once you are married. A U.S. citizen or legal permanent resident can be the Sponsor of a family based immigration petition. However, the Sponsor has to meet some requirements and legal obligations. The Sponsor has to execute a legally binding affidavit of support for the beneficiary, in which the Sponsor guarantees to maintain the standard of living of the intending immigrant at a level not lower than 125% of the national poverty level. This obligation continues until the beneficiary has become a U.S. citizen, or has worked in the United States for 40 qualifying quarters. http://www.greencardfamily.com/question/question2013/question2013_0609.htm www.greencardapply.com www.greencardfamily.com

As a U.S. Permanent Resident, You May Sponsor Your Wife's Green Card Application

Help Desk: I recently get my Green Card based on my employment sponsorship. Please let me know how could I help my wife to get her Green Card? and how long it may take? Thank you very much. -------------------------------------------------------------------------------- Answer: As a U.S. Permanent Resident, you may sponsor your wife's Green Card application, by applying for an Form I-130 petition. If she is in overseas, she will have to wait for the I-130 petition to be approved by USCIS, and then wait for an immigration visa number to become available, which may take years, before her petition can be processed at the Consulate. However, if the wife is in the United States, she will have to continue to remain on the visa status (for example, H-1B, L) that the wife came in with, until she applies for their I-485 petition. http://www.greencardfamily.com/question/question2013/question2013_0610.htm www.greencardapply.com www.greencardfamily.com

CIR 2013 on the Senate Floor Schedule Next Week

CIR 2013 on the Senate Floor Schedule Next Week On May 28, 2013, this CIR 2013 bill was placed on Senate Legislative Calendar under General Orders. Calendar No. 80. The Senate began consideration of the motion to proceed to consideration of S. 744, to provide for comprehensive immigration reform. A motion was entered to close further debate on the motion to proceed to consideration of the bill, and, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, and pursuant to the unanimous-consent agreement of June 6, 2013, a vote on cloture will occur at 2:15 p.m., on Tuesday, June 11, 2013. However, subsequently, the motion to proceed was withdrawn. Then a unanimous-consent agreement was reached providing for further consideration of the motion to proceed to consideration of the bill at approximately 9:30 a.m. today, Friday, June 7, 2013. Here is the unanimous-consent-time agreement which was reached concerning the procedure for the next several days: that following any Leader remarks on Friday, June 7, 2013, Senate continue consideration of the motion to proceed to consideration of S. 744, to provide for comprehensive immigration reform; that the time until 1:30 p.m. be divided as follows: Senator Sessions, or designee, controlling three hours, and the Majority Leader, or designee, controlling the remaining time; that following any Leader remarks on Monday, June 10, 2013, Senate resume consideration of the motion to proceed to consideration of S. 744; that the time until 5 p.m. be divided as follows: Senator Sessions, or designee, controlling two hours, and Senator Leahy, or designee, controlling the remaining time; that at 5 p.m., Senate resume consideration of S. 954 (Farm Bill), to reauthorize agricultural programs through 2018, with the time until 5:30 p.m. equally divided between the two Leaders, or their designees; that at 5:30 p.m., all post-cloture time be considered expired and Senate vote on or in relation to the Leahy amendment, with no amendments in order to the amendment prior to the vote; and upon disposition of the Leahy amendment. http://www.greencardfamily.com/news/news2013/news2013_0609.htm Senate vote on passage of S. 954, as amended; that upon disposition of S. 954, Senate resume consideration of the motion to proceed to consideration of S. 744, with Senator Sessions, or designee, controlling one hour of debate on Monday, June 10, 2013 evening; that following any Leader remarks on Tuesday, June 11, 2013, Senate continue consideration of the motion to proceed to consideration of S. 744, with the time until 12:30 p.m. equally divided between the proponents and opponents; with Senator Sessions, or designee, controlling up to one hour of that time; that at 2:15 p.m., on Tuesday, June 11, 2013, Senate vote on the motion to invoke cloture on the motion to proceed to consideration of S. 744; and that if cloture is invoked on the motion to proceed, the time until 4 p.m., be equally divided between the proponents and opponents; and at 4 p.m., Senate vote on the adoption of the motion to proceed to consideration of S. 744. www.greencardapply.com www.greencardfamily.com

The Travel Document Requirements - Valid Visa for Reentry

Travel documents must be reviewed prior to departure. There are some steps, such as obtaining AP, which cannot properly be filed from outside the United States. For those who need to apply for visas, there are often supporting documents that should be gathered prior to departure from the U.S. Many unfortunate situations can be avoided by checking expiration dates of important documents, like the visa and AP, well in advance of departing the United States. Those who have plans to travel outside of the United States in the upcoming year must make sure their travel documents are in order. If a visa foil (commonly referred to as a stamp) is needed for reentry into the United States, it is important to double check the visa expiration date printed on the visa stamp in the passport. For many, a current visa in the appropriate nonimmigrant category is required for reentry into the United States after travel abroad. Obtaining a Visa It is important to remember that visa applications are made at U.S. consulates abroad. Appointments for visa interviews must be made in advance, and supporting documents must be completed and at hand for the interview. Application instructions are available online. These should be reviewed well in advance of the appointment. Instructions are subject to change and there are variations from one consulate to another with respect to some of the requirements and procedures. Port-of-Entry Matters Even if a new visa is not needed, travelers should make sure they have proper documents to present to the U.S. Customs and Border Protection (CBP) officials upon their return to the United States at ports of entry. To avoid possible problems with reentry, it is important for travelers to understand the requirements for entry in their particular status and to be ready to explain the purpose for their requested time in the United States. They should have appropriate documents to verify their explanations, for example, a recent letter from the employer for those seeking to enter in employment-based categories. http://www.greencardfamily.com/news/news2013/news2013_0610.htm Obtaining Advance Parole Individuals are advised to apply for AP in advance of the expiration date to avoid delays in travel. AP renewals can be filed up to 120 days in advance of the expiration date. In the case of a true emergency, AP generally can be requested at a local USCIS office on a same-day basis. However, this procedure is at the discretion of the local USCIS office and most offices are reluctant to issue these documents except in truly extreme situations, such as the death or serious illness of a close family member. Any such emergent request needs to be thoroughly documented. With respect to AP, the USCIS initiated a combination EAD/AP card in early 2011. While the dual benefits of EAD and AP can be granted in a single card, it remains necessary to separately file the required forms requesting each benefit. The same applies to renewals and extensions of EADs and APs. We have found that there is some confusion in this area. For that reason, readers are reminded that the EAD requires the filing of an I-765 form and the AP requires the filing of an I-131, both in the initial request and any renewal requests. www.greencardapply.com www.greencardfamily.com