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

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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.

New H-4 Work Authorization Rules “Close at Hand”

According to USCIS Director Leon Rodriguez, the new regulations allowing certain H-4 spouses the ability to apply for employment authorization are close at hand.  While we do not know exactly when the new rules will be out, the Director did also state that he was disappointed that they had not already been released.   As soon as the rules are published and we know what the parameters will be, we will certainly let you know.

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.

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.

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.

 

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.

 

Presentations and Self-Sponsored Green Cards: What you need to know

Almost all researchers, be they scientific researcher, social science researchers, or foreign relations researchers, have presented their work scientific-presentationat symposia, and other venues.  In terms of the Extraordinary Ability and National Interest Waiver applications, of what help are these presentations?  This greatly depends on the type of presentations and where you presented, as not all presentations are equal.

The first question is where did you present?  Was this a student event, or for professionals?  Was it put on by an organization in your field, or a University just for their faculty, students, etc.?  The answers to these questions can make a huge difference in terms of the helpfulness of the presentation.  USCIS is looking for professional presentations made at events put on by national or international organizations.  They want to see that it was prestigious to be asked to present there.  They want, in short, to see that the venue is such that it helps show the importance and impact of your work or that it helps show your renown.

The next question is what kind of presentation was it?  Was it a poster presentation? Oral presentations? Invited talk?  And most importantly of all, regardless of the type of presentation, what evidence can you get regarding the importance or impact of that work?  For example, if you were selected for an oral presentation at a conference, USCIS will not assume that this means your work was judges as being more important than those not selected for oral presentation.  USCIS needs evidence of this, and without it such presentations are not very helpful.  For panel discussions, look at why you were invited to be on the panel, who else was on the panel, etc.  Regardless of the kind of presentation, USCIS will need some evidence to show this importance.

As you can see, it is not sufficient to just give USCIS information of what you have done – you need to also explain to them the importance of what you have done and the impact your work has had.  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.