CBP Starting a new Pilot Program to Change Incorrect I-94 Information via Email

EvHelpI94

For those of you who have had issues with incorrect information on your I-94 in the past, you understand the difficulties you have to go through to get it corrected.  Generally, you have had to go back to the port of entry, hope that someone can see you in a timely manner, and then have them give a new I-94.  The US Customs and Border Protection (CBP) agency has just started a pilot program to allow certain individuals to send requests to change the I-94 via email as opposed to having to go to the port of entry in person.

The pilot program allows all such requests stemming from entries in (or from people residing in) certain areas of Texas.  In addition, the pilot is only going to be running until January, 2016.  Hopefully this pilot will be expanded and, eventually will become permanent so that those entering the US will not have to spend money to fix errors made by CBP officers at a point of entry.

We will update you as more information is made available.

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

images

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.

I am about to file my I-140, should I file the I-485 concurrently with it or wait to file the I-485 until the I-140 is approved?

imgresMany, many clients have asked us this question, and it is not an easy question to answer. Most importantly, the answer may be different depending on each persons exact situation. First, to explain a little bit, this question is looking at the fact that, under current USCIS rules, you can file the I-485 at the same time you file your I-140 and before you know if the I-140 is approved or not. While filing both applications together certainly saves time (both applications timelines run together), it can cause other issues. For example, if the I-140 is denied, then your I-485 would be denied. If you were relying on that application for your status, then you would be out of status from that point forward (most likely).

Generally, the factors we look at are:

  1. What is your current status? If you are on an H-1B, then there is little risk of filing the I-140 and I-485 together as you can maintain your H-1B status even after filing the I-485. Other statuses are trickier.
  2. When does your current status expire and what is the chance of your employer renewing it?
  3. Do you (or a spouse) need work authorization as soon as possible or can you wait?
  4. Do you need to travel in the near future (and need means need, not want).
  5. What category of I-140 is being filed?

These are just some of the questions we go through with our clients to help them make the determination on whether to file the I-140 and I-485 together, or to wait and see if the I-140 is approved first, then file the I-485.

Clearly, each individual will have to review the facts in their individual case and make a decision for themselves as to which process to use. You can, of course, call with any questions in this regard.

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.

Delay in having your EAD issued? You are not the only one.

imgresUSCIS, under it guidelines, is suppose to adjudicate an EAD application for an adjustment applicant within 90 days of filing.  If they are unable to do so, the regulations clearly state that an interim EAD is suppose to be made available to the applicant.  However, realistically, USCIS has not had a process in place to issue such interim EADs, nor have they actually issued such interim EADs, in many, many years.  Unfortunately, USCIS has also confirmed as recently as September of last year, that is still having issues adjudicating EAD applications in a timely manner.  So what can you do to potentially avoid being with out work authorization?

I think the first, and best course of action, is to make sure to file your applications for work authorization as quickly and early as you can.  For renewal applications, this means you can file up to 120 ahead of the expiration of your current EAD card.  We would certainly advise doing so, just to protect yourself.

A second option open is to start a service request if your EAD has been pending for 75 days or more.  We would definately urge people to initiate the request ON the 75th day, and to not wait for 90 days to pass.  To start a request, you can either call the 1-800 number (1-800-375-5283) or use the e-request system that USCIS has set up for online request submissions. By using one of these systems, you are alerting USCIS to the fact that there is an issue and, hopefully, they can then address it prior to the expiration of 90 days.

Lastly, there is an expedite process that USCIS allows people to use in true emergencies.  This is not premium processing, as premium processing is not available for EAD applications.  It is a system whereby you file an application for expedite to USCIS stating the facts that give rise to the request and showing that you meet one of the listed reasons for expediting:  severe financial loss to the company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest; USCIS error; or compelling interest of the USCIS.  USCIS is very strict in applying this criteria and does not readily grant such requests.  In addition, we have seen cases where the amount of time it took USCIS to adjudicate the expedite request and to actually expedite the EAD, more time had passed than had they just let the process gone on normally.  So generally, if there is a reason to expedite, this should be included up front, and not sent in only as a last resort, as it may not actually end up expediting the process.

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.

January 2015 Visa Bulletin Released – Worldwide EB-3 Movement

The January 2015 Visa Bulletin was released by the Department of State today.  While family based cases moved forward about 1-2 months in each category, the major movement forward was for employment based category 3 (EB-3) – those sponsored by employers for Professional or skilled jobs.  In this category, the priority date moved forward from November 1, 2012 to June 1, 2013.   As this is a big movement, we would suggest those who are now eligible to file adjustment of status applications should do so as soon as possible.

For those from India and China waiting for EB-2 dates to move – there was no movement for India EB-2, and China EB-2 moved forward 1 month to February 2010.

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.

Changes to NVC Processing Procedures

The NVC justimgres announced that, as of the 12th of November, they are no longer requiring that original documents (except the affidavit of support documentation) be submitted to their office with Immigrant Visa applications.  Instead, applicants need only submit copies of documents, and, once the NVC reviews the documents and ensures that all copies are present, the case will be sent to the consular post.  The Applicant will then be directed to bring the original documents to the consular post at the time of their interview.

Hopefully this will speed up the process. It will certainly help in those cases where the NVC actually looses documents, instead of having to get all new originals, applicants will now be able to just send in copies.We sincerely hope that this will also soon lead to the possibility of filing documents online as opposed to through mail, but the NVC has made no move in this direction as of yet.  We will update you with anything further as we hear about it from the NVC.

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-2 for India may Retrogress as Early as November

According to Charles Oppenheim, the Chief of the visa Control and Reporting Division, US Department of State, the usage patterns for India, the number of visas used, etc. mean that there will definately be retrogression, and it may happen as soon as November. India has seen rapid forward movement of its priority date for the EB-2 category over the past months because the DOS is trying to ensure that all immigrant visas are used before the end of the current fiscal year. As a result many more people from India are filing their adjustment of status applications based upon their older I-140 EB-2 applications now coming current. While USCIS is trying to adjudicate these cases as quickly as possible, a number will be left over by the time the new fiscal year starts on October 1, 2014. This means that there will be a number of people with cases ready for adjudication at the beginning of the fiscal year which, in turn, means that a number of the immigrant visas allocated to Inida will be used quite quickly, necessitating the retorgression.

If past trends hold, however, then, as the fiscal year progresses, the DOS will be able to move the dates for India forward to use the otherwise unused numbers from other countries.

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.

Image courtsey of http://www.thats-bejing.com

September Visa Bulletin – A little Movement

The September Visa Bulletin was released by the Department of State and does show a little movement forward in certain categories.  First we will look at the family based immigrant visas.  In this area, there was not much movement forward, but a few notable movements are:

  • Unmarried sons and daughters of US Citizens:  Moved forward about 1 month to May 2007 for most countries.
  • Spouses and Children of Permanent Residents:  Moved forwards about 6 months to January 1, 2013 for most countries.
  • Unmarried Sons and Daughters of Permanent Residents:  Moved forward about 2 months to September 1, 2007
  • The other categories had little to no movement.

In the employment Based Categories there were only two areas in which there was movement:

  • India in the 2nd preference moved forward from January 22, 2009 to May 1, 2009.
  • In addition the Philippines moved forward in both the 3rd preference and All other categories from June 1, 2010 to April 1, 2011 – almost a one year jump.

While it is good that India is moving forward in the 2nd preference, this is what the DOS stated in terms of the movement forward for India in the 2nd preference for the coming months:

“The use of potentially “otherwise unused” Employment numbers prescribed by Section 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India Employment Second preference cut-off date to advance very rapidly in recent months. Continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, however, and no assumptions should be made until the dates are formally announced. Once there is a significant increase in India Employment Second preference demand it will be necessary to retrogress the cut-off date, possibly as early as November, to hold number use within the fiscal year 2015 annual limit.”

We shall keep you updated if the DOS releases any additional guidance

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 Extraordinary Ability: The Cold Hard Facts

approval-rating

Many times we hear from clients or prospective clients that a “friend” of theirs, who has much less in the way of credentials, was approved for an EB-1A.  Sometimes it was a  “friend of a friend” or a “relative”  or some other acquaintance who had the approval.  While I have no idea if these individual stories are accurate or not (and I do suspect that some of these people may have been approved in different categories, either the EB-1B Outstanding Researcher (employer sponsored) or the EB-2 National Interest Waiver (self-sponsored))  I do know that numbers wise, very few people, especially on a country by country basis, are approved in this category every year.

Overall, every year there are 40,040 immigrant visas made available to the EB-1 category.  Each country gets approximately 3% of these immigrant visas per year.   There is also a limited number of visas that can be re-allocated from countries that typically do not use all their visas, to those that use more, but this is very limited and may, only bring a single countries usage up to 7% of the total or approximately 2,802 immigrant visas in this category.  It should be noted that this 3% includes all three application types in this category:  the EB-1A Extraordinary Ability AND the EB-1B Outstanding Researcher AND the EB-1C Intracompany Transferee.  All three application types share the number of visas in this category.  It also included not just the principal filer, but their spouses and children as well.   It should also be noted, that there is no backlog in this category for any country, so the maximum number of visas in this category allocated to each country is not even being used, further bringing down the overall number of approvals.  Overall, there are simply not that many people per country getting approved in this category.

Looking at USCIS statistics, this category, the EB-1A, has a historic approval rating of just over 50%, again showing how difficult this is.  Plus, you also need to take into account that there is a certain percentage of cases that are filed that definitely qualify (they won a Nobel Prize or similar, or they have huge amounts of documentation).  Once those people are taken into account, the actual approval rating for those with less sure cases is even lower.  This is in stark comparison to the EB-1B Outstanding Researcher which has an approval rating in the 90% range.

So for those approved in this category, congratulations you are truly one of a small percentage.  For those looking at applying in this category, do not deceive yourself into thinking it is easy as it is not.  It is possible to get approved with the right documentation and the right arguments, that is what is sets apart those cases that are approved, and those that are not.  We will discuss more about the kinds of documentation necessary in future posts.

As always remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.

The April Visa Bulletin is out

The April 2014 visa bulletin was released late last week.   For the Employment based categories, China 2nd Preference moved to March 8, 2009 and 3rd Preference worldwide, China and Mexico moved up a month to October 1, 2012.  India Second and Third Preference stayed the same and Philippines 3rd Preference also moved up a month to June 15, 2007.

In terms of Family numbers, F1 numbers moved up about 20 days to February 22, 2007 for Worldwide, India and China and to November 1, 1993 for Mexico and November 1, 2001 for the Philippines.  F2A numbers stayed the same and F2B numbers moved forward almost two months to October 22, 2006 for Worldwide, China and India but stayed the same for Mexico and Philippines.  F3 numbers moved up about 1 month for Worldwide, China and India and about 1-2 weeks for Mexico (June 22, 1993) and Philippines (February 22, 1993).  And lastly, the F4 numbers moved up about 1 week for everyone.

The Department of State did not update its estimates of movement that it put out last month, but so far, they are following those estimates fairly closely.