business - session 5 - eb-1a-b and eb-2 niw issues … - 01 - spring...eb‐4: special immigrants...

EB‐1A/NIW: ACHIEVEMENT‐BASED IMMIGRATION OPTIONS

Michelle Salter, Davis Wright Tremaine

Qingqing Miao, Lane Powell

EMPLOYMENT‐BASED IMMIGRATION OPTIONS: FIVE PRIORITY CATEGORIES

Employment‐based 1st Preference (EB‐1):

• EB‐1A: Individuals with Extraordinary Ability

• EB‐1B: Outstanding Researchers and Professors

• EB‐1C: Multinational Executives or Managers

Employment‐based 1st Preference (EB‐1):

• EB‐1A: Individuals with Extraordinary Ability

• EB‐1B: Outstanding Researchers and Professors

• EB‐1C: Multinational Executives or Managers

EB‐2: Members of Professions with an advanced degree or its equivalent, or individuals w/exceptional ability

EB‐2: Members of Professions with an advanced degree or its equivalent, or individuals w/exceptional ability

EB‐3: Professionals, Skilled Workers, or Other Workers

EB‐3: Professionals, Skilled Workers, or Other Workers

EB‐4: Special ImmigrantsEB‐4: Special Immigrants EB‐5: Immigrant InvestorsEB‐5: Immigrant Investors

2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5

EB-1a/b and EB-2 NIW issues

March 15-16, 2018 of 8

FORM TO FILE:

I‐140 Immigration Petition: the intending immigration is

the “beneficiary” of a petition.

I‐140 Immigration Petition: the intending immigration is

the “beneficiary” of a petition.

The Petitioner is normally the “Petitioner.”

The Petitioner is normally the “Petitioner.”

The intending immigrant may both be the “Petitioner” and the “Beneficiary” – known as

“Self‐Petition.”

The intending immigrant may both be the “Petitioner” and the “Beneficiary” – known as

“Self‐Petition.”

STEPS AFTER THE PETITION IS APPROVED: ADJUSTMENT OF STATUS VS. CONSULAR PROCESSING

Adjustment of Status (AOS): Qualifying Applicants that are in the US

Form 485

Adjustment under INA § 245(a)

Adjustment under INA § 245(i) (Family‐based)

Adjustment under INA § 245(k): certain beneficiaries of EB petitions who are otherwise ineligible under INA §§ 245(c)(2), (c)(7) and (c)(8):

• Only available: EB‐1, EB‐2, EB‐3, EB‐4 (religious worker described in Section 101(a)(27)(C) only)

• Was lawfully admitted to the United States as a nonimmigrant

• Has not for an aggregate period of more than 180 days:

o Failed to continuously maintain a lawful status

o Engaged in unauthorized employment; or

o Otherwise violated the terms and conditions of admission

If AOS is not possible, beneficiary will have to return to home country and consular process.

Consular Processing: Applicants who are outside the US or cannot adjust

Applicant will apply for an immigrant visa from the U.S. Embassy or Consulate.

Once the visa is issued, the applaicant may enter the U.S. and receive his or her green card after the entry.

Upon the approval of the immigration petition, the National aaVisa Center (NVC) will notify the applicant and his/her petitioner to pay the immigrant visa fee and to collect documents.

Consular office will schedule the applicant for an interview when the priority date becomes current.

The specific consular processing procedure may differ from Consulate to Consulate.



March 15-16, 2018 of 8

PRIORITY DATE AND VISA BACKLOG:

Immigrant visas for the employment‐based immigrant preference

categories are numerically limited

Immigrant visas for the employment‐based immigrant preference

categories are numerically limited

State Department (DOS) allocates numbers based on preference category, country of chargeability &

priority date

State Department (DOS) allocates numbers based on preference category, country of chargeability &

priority date

Demand > supply of visas = visa queue (wait

list/backlog)

Demand > supply of visas = visa queue (wait

list/backlog)

Priority Date is used to determine an applicant’s place in the visa queue

Priority Date is used to determine an applicant’s place in the visa queue

The DOS publishes the Visa Bulletin every month as a guide for issuing

visas

The DOS publishes the Visa Bulletin every month as a guide for issuing

visas

Self‐Petition is Available ‐ Immigrant can file the petition by him/herselfSelf‐Petition is Available ‐ Immigrant can file the petition by him/herself

No certified PERM required No certified PERM required

In Most Cases, No or Shorter Visa BacklogIn Most Cases, No or Shorter Visa Backlog

Premium Processing is available for EB‐1APremium Processing is available for EB‐1A

ADVANTAGES OF EB‐1A & EB‐2 NIW:



March 15-16, 2018 of 8

EB‐1A EXTRAORDINARY ABILITY

Extraordinary Ability in Sciences, Arts, Business, or Athletics – Wide Range of Professions

3 out of 10 listed criteria to prove extraordinary ability:

“Final Merit” test by test established by Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)

Evidence of receipt of lesser nationally or internationally recognized prizes or awards

for excellence

Evidence of receipt of lesser nationally or internationally recognized prizes or awards

for excellence

Evidence of your membership in associations in the field which demand outstanding achievement of

their members

Evidence of your membership in associations in the field which demand outstanding achievement of

their members

Evidence of published material about you in

professional or major trade publications or other major

media

Evidence of published material about you in


media

Evidence that you have been asked to judge the work of others, either individually or

on a panel

Evidence that you have been asked to judge the work of others, either individually or

on a panel

Evidence of your original scientific, scholarly, artistic, athletic, or business‐related

contributions of major significance to the field

Evidence of your original scientific, scholarly, artistic, athletic, or business‐related

contributions of major significance to the field

Evidence of your authorship of scholarly articles in


media

Evidence of your authorship of scholarly articles in


media

Evidence that your work has been displayed at artistic exhibitions or showcases

Evidence that your work has been displayed at artistic exhibitions or showcases

Evidence of your performance of a leading or critical role in distinguished

organizations

Evidence of your performance of a leading or critical role in distinguished

organizations

Evidence that you command a high salary or other significantly high

remuneration in relation to others in the field

Evidence that you command a high salary or other significantly high

remuneration in relation to others in the field

Evidence of your commercial successes in the performing

arts

Evidence of your commercial successes in the performing

arts

EMPLOYMENT‐BASED PETITION: EB‐2

Labor certification is required (also means no self‐petition) except for the National Interest Waiver (“NIW”) category.Labor certification is required (also means no self‐petition) except for the National Interest Waiver (“NIW”) category.

Visa numbers are not readily available for citizens of China‐mainland and India. Visa numbers are not readily available for citizens of China‐mainland and India.

Advanced degree (or equivalent) is necessary, unless one is with exceptional ability. Advanced degree (or equivalent) is necessary, unless one is with exceptional ability.

Exceptional ability means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”Exceptional ability means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”



March 15-16, 2018 of 8

EMPLOYMENT‐BASED PETITION: EB‐2 NIW

Achievement‐based green card option (slightly lower standard than EB‐1A).Achievement‐based green card option (slightly lower standard than EB‐1A).

A Master’s Degree or Exceptional Ability in one’s field is needed. A Master’s Degree or Exceptional Ability in one’s field is needed.

Unfiled ETA 750B still needed for filing Unfiled ETA 750B still needed for filing

New Three‐part test established by Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). New Three‐part test established by Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

• the proposed endeavor is of substantial intrinsic merit and national importance

• the foreign national is well‐positioned to advance the proposed endeavor

• on balance, it would be beneficial to the U.S. to waive the requirements of a job offer

PHYSICIAN NIW

Criteria: Agree to work full‐time in a clinical practice. For most physician NIW cases, the required period of service is 5 years

Must work in a primary care or be a specialty physician

Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)

Must obtain an Attestation ‐ a statement from a federal agency or a state department of health that has knowledge of your qualifications as a physician and that states your work is in the public interest

A physician agrees to work for a period of time in a designated underserved area



March 15-16, 2018 of 8

NYSDOT VS. DHANASAR: WHAT IS THE DIFFERENCE?

Three‐Part Test under NYSDOT

Substantial intrinsic merit

Work is “national in scope”

The applicant can benefit the national interest to a “substantially greater degree that would an available U.S. worker having the same minimum qualifications”

Three‐Part Test under Dhanasar

Substantial intrinsic merit and national importance

The foreign national is well‐positioned to advance the proposed endeavor

On balance, it would be beneficial to the U.S. to waive the requirements of a job offer

FILING TIPS:

Importance of Awards Importance of Awards

Letters of Recommendation: What makes a good

letter of recommendation?

Letters of Recommendation: What makes a good

letter of recommendation?

Proof of intent to continue with his/her profession in the U.S.

Proof of intent to continue with his/her profession in the U.S.

For NIW, ETA 750B or ETA 9089?

For NIW, ETA 750B or ETA 9089?

RFE trend RFE trend Green card interview at

the USCIS or the Consualte

Green card interview at the USCIS or the

Consualte O‐1A and EB‐1A/NIWO‐1A and EB‐1A/NIW



March 15-16, 2018 of 8

HYPO 1:

John is a citizen of Germany

John is a citizen of Germany

Mid‐Level Manager (Director) at a global logistics

company

Mid‐Level Manager (Director) at a global logistics

company

Holds a bachelor’s degree in business administration

Holds a bachelor’s degree in business administration

Over 20 years of experience at

managerial level positions

Over 20 years of experience at

managerial level positions

Manages top 20 client accounts (20 Million + each year) for his employer

Manages top 20 client accounts (20 Million + each year) for his employer

Doubled the revenue

Doubled the revenue

Critical in securing one major client

account

Critical in securing one major client

account No major awards No major awards

HYPO 2:

Mary is a citizen of China Mary is a citizen of China Ph.D. in musicology Ph.D. in musicology Department chair of a major conservatory

Department chair of a major conservatory

Published books, articles and CDs (all in Chinese) Published books, articles and CDs (all in Chinese)

National Awards for research (in China) National Awards for research (in China)

Strong letters of recommendation Strong letters of recommendation

Executive Committee member of a professional

organization for musicians and music

scholars

Executive Committee member of a professional

organization for musicians and music

scholars



March 15-16, 2018 of 8

QUESTIONS?

THANK

YOU!



March 15-16, 2018 of 8

business - session 5 - eb-1a-b and eb-2 niw issues … - 01 - spring...eb‐4: special immigrants...

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