NIW – Page 3 – Immigration Briefs

December Visa Bulletin and Update from Mr. Oppenheim

The Department of State recently released the December 2015 visa bulletin and Mr. Charlie Oppenheim, the person at the Department of State in charge of the Visa Bulletin also recently gave AILA an update on his predictions for future movement of the Bulletin. I will summarize both of these documents below.

Family Based:

Final Action Date:

Most categories moved forward about 1 months. The one date to highlight is the F2A Category (Spouses and Children of Permanent Residents) which is now at June 15, 2014.

Application Filing Dates:

No Movement

Guidance:

Here is what Mr. Oppenheim has to say on family based categories:

F-2A and F-2B: Last year, the family-based 2B category advanced very quickly because the demand did not initially materialize. The dates have now advanced to the point where demand is materializing. A similar phenomenon is occurring with regard to F-2A. The agent of choice letters are not spurring sufficient demand, so until demand materializes, we can expect to see continued advancements in this category. As noted previously, the response rate is low in many of the family-based preference categories.

Employment Based:

Final Action Dates:

EB-2: The only real movement was India, which jumped from August 1, 2006 to July 1, 2007. China stayed in 2012 and the rest of the world is still Current.

EB-3: Everyone, except India moved forward about 1 month. China moved to April 15, 2012, the Philippines moved to August 1, 2007 and Mexico and the rest of the World moved to September 15, 2015. Unfortunately India stayed at April 22, 2004.

Application Filing Dates:

No Movement. USCIS did indicate they would accept I-485 application based upon these dates in December 2015.

In giving his guidance, Mr Oppenheim stated that the forward movement on the India EB-2 numbers is attributable to correcting the large rollback in the dates that occurred at the end of last fiscal year. Mr. Oppenheim projects that EB-2 India may advance monthly by as much as eight months over the course of the next few months. However, this would be the best case scenario, and the actual advancement is likely to be around four to six months at a time. On the downside, this forward movement will most likely spur EB-3 upgrades which will eventually impact demand, slowing EB-2 India advancement. Mr. Oppenheim expects the upgrade demand will start to materialize in December/January which will slow advancement in early 2016. Should the demand fail to materialize at the expected rate, then the “up to eight” month movement could occur.

Guidance:

In terms of China, the EB-2 China final action date will remain the same in December 2015 and Mr. Oppenheim does not anticipate much, if any movement in this category over the next few months as he already expects that number use will exceed the targeted usage for the first quarter of the fiscal year. Since the final action date for EB-3 China is later than the EB-2 China final action date, Mr. Oppenheim expects that some EB-2 China cases will downgrade to EB-3, which will take some of the demand pressure off of EB-2 China. This phenomenon has happened the last two years and ultimately results in increased EB-3 demand which slows movement or even retrogresses that category, while at the same time allowing EB-2 China to advance once again. Mr. Oppenheim expects this rebalancing to occur at some point next year, possibly as early as April.

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.

So your EB-1 was denied, should you appeal?

images We have had clients contact us wanting to appeal the denial of their case by USCIS to the Administrative Appeals Office (AAO). Generally, our response to people is that appeals are extremely difficult to get approved, and usually not worth the money. However many people still want to appeal and there are certainly many attorneys out there who will appeal cases telling people that they have a “good chance” at winning the appeal. The question is, what are the actual chances of winning on appeal?

Well, we can now answer this as the AAO released a detailed list of their adjudications over the past several years. So lets look at some of those numbers now:

EB1A: Extraordinary Ability

This is probably the type of case we most often see people wanting to appeal denials. The EB-1A category is hard enough to begin with, with only about a 50% approval rating. How is it on appeals? Well, in 2011 there were a total of 146 cases decided by the AAO. Of those, 137, or 93.9%, were dismissed. Only 8, or 5.4%, were sustained (i.e. the EA was approved by the AAO), and only 1 (or 00.7%) were remanded to USCIS for further decision. In 2012 93.6% (204 out of 218) cases were dismissed and only 6.4% (14) cases were sustained. In 2013 92.4% of cases were dismissed (122 out of 132). 8 cases were sustained (6%) and 2 were remanded (1.6%). And in 2014 88 cases (91.7%) of cases were dismissed and 5 cases were sustained (5.2%) and 3 cases were remanded (3.1%).

EB-2 National Interest Waiver

Unfortunately USCIS has not released approval statistics for this category, but we know it is much higher than 50%, probably around 70% or so. However, for the appeals, the rates are very similar to the EB-1A (but much fewer cases were decided). IN 2011 96.5% of cases appealed in this category were dismissed. In 2012 94.8% of cases were dismissed. In 2013 94.3% of cases were dismissed and 92.7% of cases were dismissed in 2014.

EB-1B: Outstanding Researcher

The EB-1B category generally has a very high approval rating overall, but except for one year, this did not carry over to the appeals area. In 2011 only 68.8% of cases were dismissed which is actually not bad. This means that almost 30% of the appeals were sustained, which is much higher than the EA and NIW. This changed rapidly in 2012 and 2013, when the rate of dismissal increased to 97% and 95% respectively. This peaked in 2014 when 100% of cases decided were dismissed.

CONCLUSION

What the above shows is that, for scientists, appealing a case is usually not a good idea as it is extremely difficult to get it approved. In most cases, refilling the case, either right away or a little while down the road, is usually the best course. Of course every case is different, and there are certain cases for which an appeal actually makes sense. Generally however, if the only response on appeal is that USCIS made the wrong decision, it will not work. There generally has to be something else – either USCIS mis-stated the law in some way, did not actually consider certain evidence at all (i.e. it was not discussed at all), or stated that certain evidence was not probative when, in actuality, it was obviously very probative (i.e. your work had been cited 1000 times, but the officer says that citations are not probative of the importance or impact you work has had). Not even every case with this type of problem will get approved on appeal, it simply increases the likelihood of success.

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-140 Premium Processing: Good or Bad?

Premium Processing is a service offered by USCIS for which anyone filing an I-140 (or with an I-140) can pay USCIS an extra $1225 and they will guarantee processing your case within 2 weeks or they will refund your money (and, according to USCIS, continue processing the case in an expedited manner). While it would certainly be nice if USCIS could just adjudicate I-140’s in a timely manner to begin with, considering it is now taking in excess of 6 months for most applications, more and more people are looking at using Premium Processing to get their cases decided quicker. Before you decide whether or not to turn over more money to USCIS, there are a coupe of things to consider:

1. What Type of Case do you have?

While Premium Processing is able to be used with most employment based cases, there are some that it cannot be used with. Actually, there is only ONE case type it cannot be used with: The National Interest Waiver. Why it cannot be used with this case type is not explained by USCIS, but we can hypothesize. My belief is that it would seem contrary to the whole spirit of the national interest waiver to adjudicate the cases quickly as it would appear that the national interest was not taken into account. Another possibility is that they feel that the extra burden it would create, even with the extra fees, would overwhelm the Premium Processing Unit. Perhaps, some day, USCIS will make this case type eligible. Until then, just remember, if you have a NIW case, you CANNOT use Premium Processing. If you have any other type of I-140 case, you can.

2. What is the current USCIS Processing Timelines?

While it does not happen frequently, there are times when certain I-140’s are being adjudicated fairly quickly (i.e 1-2 months). If you are filing such a case during a time in which USCIS is adjudicating that case type quickly, using premium processing may not really be worth the money. It is important to check the USCIS Processing times on the website (Click here for the link). (Click here to read my blog post on how to read the USCIS processing time reports).

3. How strong is your case?

Many times, our clients who have filed an EB-1A Extraordinary Ability case (EA) want to use premium processing. While we certainly understand wanting to know the outcome of the case sooner rather than later, we also feel it is important to look at the strength of the case to determine if and when to use premium processing in a particular case.

Primarily, what the strength of your case shows is the likelihood of getting a Request for Evidence (RFE). If your case is not so strong, there is more of a likelihood that USCIS will send you an RFE and if your case is strong, there is less of a likelihood. This is important because, lets say, you compile all your documents but still have just an ok case that is on the week side. If you use Premium Processing right away and USCIS issues an RFE asking for more evidence of your extraordinary ability what are you going to give them? After all, you just sent in all your documents less than 2 weeks ago. Will people who just gave you support letters give you new letters? Will you have more citations, or more papers? In cases like these we usually suggest that the client wait at least 1-2 months before using premium to ensure that there will be something we can use in the response should a response to an RFE be needed.

Stronger cases do not have to worry about this as much for two reasons. First, there is much less likelihood of getting an RFE. Second, since their cases are stronger, usually that means that their citation history increases at a faster rate, and there is usually more documentation out there that we did not get for the first application that we could still use in a response to an RFE.

4. What is USCIS track record at the time you want to use Premium Process?

Having many clients allows us to see trends at USCIS. And with Premium Processing, there definitely are trends. Sometimes it seems as though every application filed using premium received an RFE. Sometimes, a majority receive RFE’s but not a vast majority. And sometime, Premium Processing works as it should and applications are adjudicated equally through both Premium Processing and Regular Processing. Which trend is active is something you should investigate before deciding to use premium. If USCIS is sending an RFE on most or all cases filed using Premium Processing, it may be a good idea to hold off and wait until that trend turns around.

Conclusion

I hope the above shows you what we feel the main considerations are in terms of whether to use premium processing or not. If you have an attorney, checking with them can get you answers to all the above questions and make your choice easier. 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.

June 2015 Visa Bulletin – Forward Movement for Some

The Department of State has put out the June 2015 visa bulletin. While family based dates have remained fairly steady (with some backlogs and some slight movement forward) the bigger changes were on the employment side.

1st – Remain current for all countries
2nd – Remain Current for All Areas EXCEPT China is now in June 1, 2013 a jump of 1 year and India is at October 1, 2008, a slight movement forward of about 1 month
3rd – All countries moved forward to February 15, 2015, about 1 month forward movement, EXCEPT China, which is at September 1, 2011 (forward movement of about 4 months), India which is at January 22, 2004 (no movement) and Philippines, which moved back 2 years to January 1, 2005.
Other Workers: Same as 3rd preference except China is at January 1, 2006.
5th – China remains backlogged at May 1, 2013 while the rest of the world is current.

Overall, China moved forward quite a bit in the 2nd preference category (which includes the NIW application) which is good news. Unfortunately, India remains backlogged quite heavily although it did have some forward movement in the 2nd preference category.

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.

Are all Recommendation Letters Created Equal?

One of the most frequent questions we get from our clients is about the Letters of Recommendations needed for the self-sponsored applications (we actually call them Expert Review or Expert Opinion Letters). People want to know who the best referees are, what the letters need to say, etc. For the most part, people believe that these letters are a very important part, if not the most important part of the entire application.

While the letters are important, what is more important is that you have “objective”, independent evidence as to the importance and impact of your work AND, for the Extraordinary Ability application, your renown. By “objective” generally USCIS means documentation not produced solely for the green card application, but that exists already. A good example of this is a news article published online, or the selection of an article you published as an “article of the week”. Such evidence exists separate from the green card application itself. This is the type of evidence that makes the difference between an application that is approved, and one that is not. Most Expert Review Letters come from your current boss, or a former boss, or a postdoc advisor, or a collaborator, etc. These type of letters, while nice, and helpful in terms of showing the role you played in your work, are not considered “objective” as they come from those with an interest in you and your work. These type of letters simply confirm the “independent” evidence you submitted, but cannot make your case. Expert Review Letters from those who are independent of you, on the other hand, CAN be “objective” evidence and CAN be persuasive to an Immigration officer when they review your case.

Letters that come from others in your field who do not know you personally, maybe have never even met you, but they do know your work (through citations, through presentations, etc.) AND they have used your work to help with their own work (maybe they have utilized your research in their own work, or applied your findings in their own projects) are the type of letters that USCIS is looking for. A letter from such a person IS “objective” evidence as to the importance and impact of your work AND evidence as to your renown in the field. Especially for the EB-1A Extraordinary Ability application, this is the type of letter that you should be shooting for getting.

To summarize:

The most important evidence for a self-sponsored green card application is “objective evidence”
2. Most Expert Review Letters are NOT “objective” evidence
3. An exception to this rule are those Expert Review Letters that are written by “independent” people in your field who testify as to the importance and impact of your work AND how they have used your work in their own work

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.