Immigration Visa – Immigration Briefs

Immigrant Visa Backlogs and Congress: Can They Fix the Problem?

Unknown Not everyone realizes but there are huge backlogs of cases for employment based immigrant visas. For about 1 year now the EB-1 category (Extra-ordinary Ability, Outstanding Professor and Researchers and Intra-Company Transferees) category has been backlogged about 1 year for most of the world and several years for China and about 4-5 years for India. The EB-2 category, while current for most of the world, has been backlogged about 4 years for China and about 10 years for India. The same is true of the EB-3 category. For those from India and China especially, the requirement of having to wait 10 years or more for a green card is hard on the family. It can cause children, who may be 2 or 3 when they arrive in the US, to age out before a green card can be obtained – forcing these now grown Children to either go home or get their own visas and begin their own processes. Furthermore, the employees are working for years without hope of major pay increases or promotions, for fear of being fired (if they ask and are denied) and loosing their place in line.

Congress has been looking at ways of fixing this. The most popular bill currently, that almost passed the Senate, would alleviate the issue by removing the per country limitations currently in place for employment based immigrant visas. Currently, all employment based immigrant visas are divided among all countries in the world evenly. While the Department of State can reallocate some visas based upon usage patterns, no country can get more than 7% of the immigrant visas in any given category. That means, for example, for EB-1 visas India can only get about 3,000 visas per year (and that includes visas for all dependents of the primary applicant (spouses and children). The bill in congress would remove those limitation in steps and would put in place protections so those from other countries who already applied in the employment categories when the bill was filed, would not loose their place in line. However, the effect of this bill would hit people from EVERY country.

Within 4-9 years all countries would be facing major backlogs in all categories. While the current backlog would be cleaned out by then, there would still be significant delays for everyone. Another bill, in addition to removing the per country limitations would also remove dependents from the visa count. This means a family of 6 or a family of 4 would be counted as just one immigrant visa against the quota. This would greatly help to reduce the backlog and would go a long way towards ameliorating the issues caused by just removing the per country cap. This bill, however, would also raise the number of employment based immigrant visas, a portion of the bill that is unlikely to pass this Congress or, even if it were, to be signed by this President. There are currently other Senators working at removing the increase in immigrant visas from the bill to try to make it more passable.

Overall, while all these bills try to tackle this issue, the problems with our current immigration system are fairly widespread. Our immigration laws were written over 30 years ago now in many cases, and longer in some. Many things have changed since then and a major overhaul is certainly in order. However, because of the current polarization of our political system, it is doubtful that any such major reform could be passed anytime soon. Therefore, smaller fixes are all we can hope for in the near term. Hopefully congress can get together and put together a bill that will help everyone and help prevent the current backlogs we have.

Those interested in this issue can read a good article in The Washington Post here.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

EB-1A: How Publications Can Show you Have Extraordinary Ability

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In the EB-1A Extraordinary Ability green card regulations, one of the 10 enumerated types of evidence is “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media” (See 8 CFR 204.5(H)(3)(vi)). Many of our clients have seen this, read about it online, and feel that all they have to do is show that they published papers and they met this criteria AND are on there way to showing they have extraordinary ability. Before getting into whether this view is accurate, I first want to review a little bit about the EB-1A application standard. To show that you meet the standard for the EB-1A USCIS has set up a two part process: Step 1 is to show that you meet 3 out of the 10 categories enumerated in the regulations; Step 2 is to show that, looking at all the evidence together, you meet the statutory standard of “sustained national or international acclaim”. It is important to remember that BOTH of these steps must be met to be approved. Just meeting one of the steps is not enough.

Showing that you have published in professional journals is certainly a category we use for many of our clients who file under the EB-1A category. For scientists it is a must, as it shows dissemination of your work (and both journal publications AND published abstracts can work here). To meet this category all you need to do is show that you meet the plain language of the category – or, in other words, just show you have published at least one paper in qualifying media (a professional journal, for example). The quality of the journal, the qualify of the paper, and the impact of the paper simply do not matter as there is no language in the regulations that would make them relevant for this category. However, while just showing this bare minimum will indeed show you meet this category for Step 1, when you get to Step 2, and need to show that, looking at all the evidence you have “sustained national or international acclaim”, just having this bare minimum will NOT help. USCIS will not automatically find that you meet Step 2 just because you meet Step 1 – this is very important to remember. We have seen denials in which the USCIS officer states that Step 1 was met, but Step 2 was not.

So how does one show that they have “sustained national or international acclaim” through publications sp as to help with showing that you meet the requirements of Step 2? The key is to show that others know of your work, use your work and rely upon your work in their own work. This can sometimes be shown through citation history, the fact that you were selected for oral presentations or invited to speak, the fact that your publications have been highlighted by others, or discussed in news articles. There are many ways of showing sustained national and international acclaim through the use of publications, but the one thing they all have in common is that additional objective documentation will be needed to show that your publications are being used by others in your field. While this can certainly include letters from those in the field who have used your work, that should not be the only evidence you present in support as USCIS tends to want additional, objective evidence in addition to letters.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

The National Interest Waiver – Within the Reach of Many

The National Interest Waiver application is a self-sponsored application that is a good fit for many, many researchers and others looking to get permanent residence in
the US. While many people feel that they need to show they are working for our government or something similar in order to show that their work i
s in the National Interest, this is actually not the case. The National Interest Waiver, while not easy to get approved, is much less restrictive than the E
xtraordinary Ability application and many people may be surprised that once they review the standard, that they can in fact qualify for this green card category.

So what are the actual qualifications for this application and how do you show your work is in the national interest? Unfortunately, this is a case in which both Congress and USCIS did not issue any guidance as to what the standard should be, so it was left to the courts. Specifically, the Administrative Appeals Office (AAO), in a precedent case (Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT)) did explain what is needed to show that your work is in the national interest. After the AAO issued this decision, USCIS formally adopted the decision as their standard.

The NYSDOT case laid out a three part test to determine if your work is in the national interest: 1) you must be seeking work in an area that has substantial intrinsic merit; 2) you must demonstrate that the proposed benefit to be provided by your work will be national in scope; and, 3) you must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making your position available to US Workers.
While the above can seem daunting in theory, it is not quite so daunting in practice. What it comes down to is showing you are, and will be, working in an important area and that you have already made a significant impact on your field. What type of documentation can show this?

If you are a scientist you can show this through publishing and presenting your work, citation history, peer reviewing, being accepted for oral presentation or invited to talk, having a paper highlighted at a journal website or elsewhere, having press about your findings. Please note, the above is a list of documents that CAN be used to show eligibility, and it is not a list of ALL documents that are needed, as you can be approved with less than all the above documents.
In general, while this is similar to the same type of documentation that is used for the Extraordinary Ability application, a key difference is that the NIW is a less restrictive standard than the EA. For instance, the Administrative Appeals Office, in looking at EA cases has indicated that perhaps 200 or more citations would be considered “a good number”. For the NIW application much less citations are needed. Many cases we have seen there are only 40-70 citations overall. Instead of having to show you are one of the few at the top of your field, the extent of your impact and influence on your area is key. This also me
ans that you do not need to be the first named author on your papers as it is the impact, not your renown, that is the key for the NIW.

For areas other than the sciences, such as foreign relations, health policy, etc, while the type of documentation can be much the same as above – publications, press, etc, you also have the opportunity to look at your role within projects, programs, or other initiatives. It can also be much more letter focused with letters from government officials or NGOs about the use and implementation of your work, etc. It all depends on whether your work is more academic related or applied in the field.

In essence, US interests are broad in nature, and thus, depending upon the extent of your standing within a specific area, you may very well be a good candidate for this type of visa application.

Please remember, always get your legal advice from an attorney and not a blog. Call and talk to an attorney to get the specifics of this status and your ability to qualify.