As an immigration attorney who is focused on the EB-2 national interest waiver green card, I am often asked about how long it will take to get a case processed and approved by USCIS. Currently, if you ask me that question, I will generally say about 18 months. Although the EB-2 NIW was once processed within 5 to 9 months, there is currently a huge backlog.
If you are hoping to pay for premium processing for your national interest waiver, unfortunately, that service is not currently available. No one is exactly sure when USCIS will start offering EB-2 NIW beneficiaries more rapid results through premium processing. Even immigration lawyers in your area are not certain about what is happening with premium processing for the EB-2 NIW.
EB-2 NIW has been authorized for premium processing
In late September 2020, while the pandemic was in full force, Donald Trump was still the President of the United States, and the backlog was becoming a behemoth, changes were made to premium processing policy.
Continuing Appropriations Act, 2021
On September 30, 2020, former President Trump signed the Continuing Appropriations Act, 2021. As part of that Act, allowances were made to expand the premium processing program.
One of the most exciting provisions of the Act for immigration lawyers and their employment-based green card clients was the inclusion of the EB-2 NIW as a Form I-140 category that was eligible for premium processing. But then nothing happened.
Changes to premium processing filing fees
Effective October 19, 2020, many green card categories that were eligible for premium processing experienced a fee increase from $1,440 to $2,500, including the EB-1A extraordinary ability green card.
When USCIS implements premium processing for the EB-2 national interest waiver petitions, the cost will be $2,500, as well. This, of course, is in addition to the $700 filing fee for Form I-140.
Authorization for premium processing
Even when USCIS finally institutes premium processing for the EB-2 NIW, the policy is not planned to be the same as for the EB-1A extraordinary ability green card. Although the Form I-907 fee will also be $2,500, the national interest waiver is set to have a promised processing time of 45 days.
This is a much longer time compared to the 15 calendar days afforded by EB-1A premium processing. But it is certainly better than 18 months or more.
Your guess is as good as mine
But who knows when the EB-2 NIW premium processing program will be implemented by USCIS. Also, many are wondering if USCIS will allow for previously filed petitions to be upgraded.
Can these EB-2 NIW cases be removed from that large pile that many of us imagine that they are festering in and get processed within 45 days? If you have filed a national interest waiver green card petition, or you plan to, you may want to consult with an immigration attorney near you to find out the latest on premium processing.
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Many immigrant visas for legal entry or residency in the United States require an American sponsor. Sponsoring an immigrant in the United States can be a huge responsibility.
Each year about 800,000 foreign-born residents become naturalized citizens. But the process toward obtaining a green card, and eventually citizenship, can be rigorous.
Sponsoring a Family Member
There are several types of sponsorships for family members.
Requirements for Sponsorship
A sponsor must be at least 18 years old and a U.S. citizen or legal permanent resident. Citizens who live abroad, such as military personnel, must provide evidence that their stay out of the country is only temporary.
In order to vouch for a family member, a sponsor can complete an affidavit of support. According to the United States Citizenship and Immigration Service (USCIS), this assurance document is a legal record.
Individuals who wish to sponsor an immigrant in the USA may ask someone to share the responsibility. However, sponsors may not combine their incomes in order to meet the required income threshold for sponsorship.
In the event that a sponsoring family member passes away after the approval of a visa petition, USCIS may allow for someone to take their place and assume responsibility. Because the original sponsor was a relative, the replacement sponsor must be family, as well.
Whether a person is a sponsor, joint sponsor, or substitute sponsor, they must be able to earn an adequate salary. The income threshold is generally 125% or more of the U.S. poverty line for the relevant household size.
An exception applies for soldiers, as well as those sponsoring their spouse or child. In this instance, income must meet or exceed the poverty level for a family of the sponsor’s size.
Sponsoring an Employee
A company, or prospective employer, may sponsor a foreign national for lawful permanent residency, based on a job offer. They first need to perform a labor certification.
A labor certification shows that, after a diligent search, there was not a pool of qualified applicants among U.S. citizens. Some employees may seek other types of visas that waive the labor certification requirement, such as the EB-2 national interest waiver or the EB-1A extraordinary ability green card.
Speak with an Immigration Attorney
If you are going to be sponsoring a noncitizen, or if you are seeking an EB-2 NIW or EB-1A, you might need legal assistance.
To err on the side of prudence, contact an immigration attorney to discuss your options and ensure your compliance with United States immigration law.
If you believe that you have to have a Ph.D. or at least a master’s degree to be eligible for an EB-2 second preference green card with a national interest waiver (NIW), you may be pleasantly surprised. Not everyone whose endeavors have substantial merit and national importance to the USA have that educational background.
In reality, the United States Citizenship and Immigration Service (USCIS) provides the following standard: “You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability.”
Advanced Degree or Its Equivalent
The term “equivalent” may seem ambiguous to some noncitizens who are pursuing an EB-2 NIW. In actuality, the way that USCIS views it is fairly concrete.
To be considered by a USCIS officer as a foreign national with the significance of an advanced degree, one must have at least a bachelor’s degree in the field of application and at least five years of progressive experience in their area of expertise.
What does exceptional ability mean?
Noncitizen professionals who do not have at least a bachelor’s degree in their area of career focus can still qualify for an EB-2 NIW. This is because there is an alternative way to achieve second preference status, exceptional ability.
USCIS provides several factors that may persuade a DHS adjudicator that an EB-2 NIW beneficiary has exceptional ability. The list below is not exhaustive.
National Interest Waiver
Someone who has a job offer and labor certification may be able to be approved for a second preference immigrant visa based on their advanced degree or exceptional ability. Those who wish to have the job offer and PERM waived can self-petition for an EB-2 NIW.
Since one of the three necessary elements for a national interest waiver is that the noncitizen is “well positioned to advance the proposed endeavor,” an EB-2 NIW self petitioner might consider using some of the exceptional ability criteria to demonstrate it. In this sense, they can meet both the thresholds of having exceptional ability and being well positioned.
Applying for an EB-2 NIW based on Exceptional Ability
If you do not have an advanced degree or its equivalent, or if you are not working in the field related to your education, you may still qualify for an EB-2 NIW. You have the option to self-petition for a national interest waiver, and you now have the information needed to gather your evidence.
Even if you are planning to petition for an EB-2 NIW yourself, it can be helpful to consult with an attorney before you begin. Gallagher Domanski Professional Law Corporation offers a free CV evaluation and has a dedicated Facebook Group, “EB-2 Self Petitioners.”
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When you are living and studying in the United States on an F-1 student visa, your wallet can empty out quickly. Out-of-state tuition, books, and housing add up, and your on-campus employment may not be much of a help.
Fortunately, the United States Citizenship and Immigration Service (USCIS) considers special situations that may warrant the granting of an Employment Authorization Document (EAD) to an F-1 visa student. Of course, this is done per their discretion, rather than a guarantee.
What does USCIS consider a special situation?
USCIS realizes that natural catastrophes and other extreme occurrences can affect one’s immigration needs. In such situations, CIS can consider certain requests on a case-by-case basis.
Some of the entreaties that USCIS will evaluate include those for delayed extensions or changes of status; fee waivers; and employment authorizations for F-1 visa students. This article will focus on the third type of request.
Severe Economic Hardship to F-1 Students
Caused by Unforeseen Circumstances
If an F-1 visa student experiences severe economic hardship because of unexpected circumstances that are out of their personal control, they can request an EAD card so that they can work off-campus and make more money. Some examples of unforeseen circumstances that USCIS considers include the following:
How an F-1 Student Can Apply for An EAD Card
An F-1 visa student who believes that they have a qualifying unforeseen circumstance can apply for an EAD card by filing Form I-765 with accompanying evidence of the hardship. Additionally, the Designated School Official (DSO) will need to complete the employment page on their Form I-20. This will show that they are eligible for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond their control.
An approved EAD card for an F-1 student is valid in one-year intervals until the expected date of graduation so long as the need for off-campus employment still exists.
Applying for Special Student Relief
Certain F-1 visa holders can also apply for special student relief that can allow them to receive an EAD card. Examples of students who might qualify for special relief include the following:
Students on an F-1 visa who believe that they might qualify for special relief should submit Form I-765 and their Form I-20 to USCIS with compelling evidence of their needs.
Ask an immigration attorney near you
If you are not sure whether your case might be considered by USCIS to be a special situation, or if you need help with presenting a compelling request to the immigration service, you might consider talking it over with an immigration lawyer near you. Gallagher Domanski Professional Law Corporation offers a free consultation. Just email us or visit our website. You can also join our Facebook group, “OPT to EB-2 NIW.”
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If you would like to achieve an employment-based green card, but you do not want to get a job offer and labor certification, the EB-2 national interest waiver might be for you. Foreign nationals are able to self-petition for this type of lawful permanent residency, even if they are living outside the United States.
Self petitioning; however, does not mean that an individual cannot access the experience of an immigration attorney. In fact, a lawyer who handles employment-based green cards can actually serve as the petitioner for the case, as well.
Matter of Dhanasar
In December 2016 the framework for the EB-2 national interest waiver changed as a result of Matter of Dhanasar, a case that sought to revamp the criteria for achieving a waiver of the job offer and labor certification requirement of an EB-2. What resulted is the current three-prong test for an NIW:
The second element for an EB-2 NIW, according to Dhanasar, is “that the foreign national is well positioned to advance the proposed endeavor.” But how does one show what their proposed endeavor is? And what qualifies as a proposed endeavor?
Fortunately, an EB-2 NIW candidate does not have to establish that their plans will definitely be successful in the United States once they are granted permanent residency. Therefore, the petitioner can submit a one-page future plan of their short and long term goals, or they can submit the large personal plan that has recently become popular among immigration tools merchants.
According to the Dhanasar case, being well positioned to achieve a proposed endeavor can be evidenced by “a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.” Other items can also assist in proving that a potential NIW beneficiary is well positioned.
Using EB-1A criteria to show that you are well-positioned
Although the EB-1A is a different type of green card that requires that a candidate be one of few who has risen to the top of their field, if an EB-2 NIW petitioner can show that a foreign national meets some of the criteria, this could demonstrate that they are well positioned. The EB-1A extraordinary ability green card requires that someone meet at least three of ten criteria.
If a second preference NIW candidate can show evidence that they fall into any of those ten criteria, they might be able to use that information to prove that they are well positioned. For example, they might submit examples of their published research, membership cards from professional organizations, or evidence of having judged the work of others. Moreover, letters of recommendation can be useful ways to show one’s stature in a particular industry.
Ask an EB-2 NIW immigration attorney near you
If you want to consult with an attorney before filing a second preference green card petition, it may be prudent to speak to one who handles the EB-2 NIW on a regular basis. After all, if you want really good Italian food, you do not go to a restaurant that has a diverse menu, right? You seek out a chef that prepares that type of cuisine on a regular basis.
If you are interested in reviewing a list of EB-1A evidence that might be used for your national interest waiver green card petition, Gallagher Domanski Professional Law Corporation offers one for free. Just email us or visit our website to ask for one.
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When your employment-based green card is finally approved by the United States Citizenship and Naturalization Service (USCIS), it is a wonderful day. However, it is not the end of the journey. The next step after approval of the Form I-140 petition is adjustment of status (AoS).
The steps in adjusting status to lawful permanent residency begin with filing more forms that have supporting evidence. Therefore, it can be helpful to have the assistance or advice of a skilled immigration attorney near you to make sure that all i’s are dotted and every t is crossed.
What is adjustment of status?
Adjustment of status, or AoS, can be used to apply for a green card if the foreign national is the United States. Those who are outside of the United States, must obtain the immigrant visa abroad through consular processing.
With an employment-based green card petition, some foreign nationals who are present in the USA prefer to file for AoS concurrently with their Form I-140 petition, so that they can remain in the country while it is being adjudicated by USCIS. This is done by filing Form I-485, Application to Register Permanent Residence or Adjust Status.
Form I-485, Application to Register Permanent Residence or Adjust Status, is a lengthy form that requires quite a bit of information. Status adjusters should be prepared to provide information about their addresses, present and former, their present and past employment, and facts about their parents and dependents.
The filing fee for Form I-485 is currently $1,140 for most foreign nationals, plus $85 for biometrics. Along with the form and the fees, an applicant for AoS will need to submit items that may include passport-sized photos, identification and civil documents, and proof of maintenance of status in the United States.
If a foreign national wants to travel outside the United States while the Form I-485 is pending, or if they need permission to work, there are two additional forms that might be filed. Form I-131, Application for Travel Document, and Form I-765, Application for Employment Authorization, may help to tide the status adjuster over until they officially receive their green card. A “combo card” might also be available to them that doubles as both an EAD card and a travel document.
What happens after you file Form I-485?
After USCIS receives your Form I-485, supporting documents, and any other related forms, you should receive a notice for a biometrics appointment. A biometrics appointment occurs at a local USCIS Application Support Center (ASC). On the date of the appointment a representative of USCIS will take fingerprints and a photograph and request that the foreign national sign documents.
If an adjustment of status interview is required, the foreign national will attend and should bring original copies of their documents. Occasionally, USCIS will issue a Request for Evidence (RFE) if certain items are still missing.
Consult with an immigration attorney near you
If you have already been approved for an employment-based green card, congratulations! You have overcome a large hurdle. But the process is not over yet, and you likely want to do everything right.
It may be beneficial to consult with a capable immigration lawyer about adjustment of status. Even if you decide to fill out the forms yourself, some law firms, such as Gallagher Domanski Professional Law Corporation, will be glad to check over your forms for a small fee.
If you are a professional or a researcher, and you want to achieve a green card without a job offer or labor certification, an EB-2 national interest waiver might be for you. You might believe that your work is quite meritorious and could benefit the USA, but that may not be enough.
United States Citizenship and Immigration Service (USCIS) officers tend to look for particular characteristics of a I-140 national interest waiver petition before they believe that it is approvable. Therefore, it can be beneficial to learn as much as you can about the EB-2 national interest waiver before applying.for one. It is also prudent to at least consult with an immigration attorney in your area.
National Merit Defined
The laws regarding employment-based green cards are part of the Immigration and Nationality Act (INA). Additionally, guidance can be found in the USCIS Policy Manual.
Specifically, the EB-2 NIW regulations come from a 2016 court decision called Matter of Dhanasar. That case states that national importance can be based on prospective national, or even global, impact. The Dhanasar decision also says that: “Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance.”
Ways to Show National Merit for an EB-2 NIW
USCIS officers will not likely put much weight on statements that the applicant makes about the national importance of their own work. More objective evidence can be more persuasive.
Find Some News Articles
Locating articles in mainstream publications, such as Newsweek, Forbes, or Time can be one way to show national importance. Many EB-2 NIW beneficiaries like to print out the articles to send to USCIS with the petition letter.
Another idea is to provide links to the articles within the text of the petition letter. As it stated in the Dhanasar case, endeavors that are newsworthy on a regional level may qualify as being nationally important.
Executive and Legislative Branches
Checking websites like whitehouse.gov or congress.gov can be helpful resources for establishing national importance. For example, the White House website has links to presidential proclamations and executive orders.
The Congress website shows bills that are currently being discussed on the House and Senate floors. There are also items from past congressional records, as well.
Letters of Recommendation
Although they may be considered less objective, since most EB-2 NIW applicants ask for the letters, a recommender might include examples of the national importance of an I-140 beneficiary’s work. These might be used to supplement other evidence.
Be sure to have letters of recommendation printed on letterhead. It is also preferable they include the date of signature.
Check with an Immigration Attorney Near You
Although you can self-petition for an EB-2 NIW, it is no easy task. Consulting with someone who drafts this type of petition letter on a regular basis can be extremely helpful.
At Gallagher Domanski Professional Law Corporation, we focus solely on EB-2 national interest waiver and EB-1A extraordinary ability green cards. We also file E-2 treaty investor nonimmigrant visa applications. Contact us.
Imagine your excitement when you finally receive mail from the United States Citizenship and Naturalization Service (USCIS). Then think of how crestfallen you might feel when you find a Request for Evidence (RFE) letter inside the envelope.
Receiving an RFE letter can be extra frustrating if you have already been waiting months for some sort of response from USCIS on your case. Nevertheless, responding to an RFE can be an opportunity to make sure that your petition is approvable by a USCIS officer.
What’s an RFE?
Foreign nationals who have never heard of an RFE should consider themselves lucky. If you “Ask Emma” about them on the USCIS website, here is what she will say:
"A request for evidence (RFE) is made when an application or petition is lacking required documentation (initial evidence), or the officer needs more documentation (additional evidence) to determine an applicant's eligibility for the benefit sought. We may send you a request for evidence at any stage of our review. The request will indicate what evidence or information is needed for us to fully evaluate your application or petition. The notice will explain where to send the evidence and will give the deadline for your response. Your application or petition will be held in suspense during that time. If you receive a request for evidence and have questions about what you need to submit, you may call our USCIS Contact Center at 1-800-375-5283."
So, basically, an RFE is the Department of Homeland Security’s way of making sure that they have everything they need to approve a case. However, sometimes, an RFE can be a stall tactic on the part of USCIS.
REQUEST FOR EVIDENCE DURING PREMIUM PROCESSING
Certain immigration petitions and applications, such as for the EB-1A extraordinary ability green card and the E-2 treaty investor nonimmigrant visa allow applicants to submit Form I-907 to request premium processing. Paying an additional $2,500 for premium processing means that a USCIS officer must “act” on the case within 15 calendar days. However, frequently this speedy processing means the issuance of an RFE, or worse, a Notice of Intent to Deny (NOID).
The bright side is that beneficiaries of more complex cases, such as the EB-1A or the E-2, can treat the initial application sort of like a practice exam. They can use the RFE letter as a form of cheat sheet to see exactly what they must do to “pass” the test by getting an approval.
GETTING AN RFE AFTER YOU FILED THE CASE YOURSELF
Some noncitizens prefer to petition for an EB-1A, an EB-2 NIW, or an E-2 themselves in order to save money. But, as a colleague once quipped, “Just because I can put a new transmission in my car myself doesn’t mean that I will feel safe driving it afterwards.” There is a reason that people get surgery from people who went to medical school and highlights from licensed beauty professionals. To do otherwise can mean disaster.
If you tried to file your immigration case yourself and received a NOID or RFE from USCIS, you can still save your case. Many immigration law firms near you are willing to take you on as a client and respond to your RFE. Some law firms, like Gallagher Domanski Professional Law Corporation, will apply the legal fee for the RFE response to the cost of refiling the case, should it become necessary.
Bona Fide Enterprise for E-2 Visa Purposes
Even if you come from a qualifying treaty country and have substantial, investable capital, your USCIS E-2 visa application could be denied if it fails to establish that the proposed or existing business is a bona fide enterprise. As such, an E-2 visa applicant should submit supplemental evidence that the enterprise meets E-2 visa criteria.
The USCIS E-2 visa standards require that the enterprise is a real, active, and operating commercial or entrepreneurial venture that produces goods or services for profit. To demonstrate that the investor has the requisite commitment to the enterprise, the E-2 visa applicant might provide USCIS with a detailed description of the activities of the business, as well as financial statements and business reports.
Other examples of evidence that may prove to USCIS that the proposed or existing enterprise qualifies as a bona fide venture include the following:
The USCIS requires that an E-2 visa applications be for a bona fide venture in the USA, and not a marginal enterprise. As such, it can be important for you provide them with sufficient documentation to demonstrate that the enterprise is bona fide.
A marginal enterprise, as defined by the USCIS, is one that does not have the current or potential capacity to generate more than enough income for the treaty investor and their E-2 visa dependents. A persuasive E-2 visa application should demonstrate that the treaty investor’s income will be more than sufficient for at least five years from the date of the E-2 visa classification.
The USCIS could deny an E-2 visa application if it determines that the proposed or existing enterprise is derived from relatively small capital and is intended only to provide a living for the investor and their E-2 dependents. One method of fortifying an E-2 application is by submitting a detailed business plan or executive summary.
Additional documentation that may convince the USCIS that a treaty investor business is bona fide, rather than marginal, includes following:
When you are applying for an employment-based green card, you need to provide the United States Citizenship and Immigration Service (USCIS) with a great deal of supporting evidence. One type of document that generally accompanies an immigration petition of this type is the letter of recommendation.
Foreign nationals who are applying for an EB-1A extraordinary ability or EB-2 national interest waiver green card are often professionals whose potential recommenders have busy jobs and lives. Therefore, an EB-1A or EB-2 NIW beneficiary may be asked to write their own recommendation letters and then present them to their recommender for signature.
If you are already paying an immigration lawyer near you to draft your EB-1A or EB-2 NIW petition letter, you might not want to pay extra for them to write letters for your recommenders to put on letterhead and sign. But if your only other option is to write the recommendation letters yourself, how do you do that? This article provides some information on the key parts of a strong letter of recommendation.
Parts of an EB-1A or EB-2 NIW Letter of Recommendation
A persuasive letter of recommendation for an EB-1A extraordinary ability or EB-2 national interest waiver green card petition should have several key items.
Introduction of the Recommender
The first paragraph of a EB-1A extraordinary ability or EB-2 national interest waiver recommendation should state the name of the green card applicant and the reason for the letter. Then in that same paragraph, or in the second one, there should be a listing of the qualifications of the recommender.
Some relevant information that can be included in the introduction of the recommender are their title, workplace, educational background, and notable accomplishments. These key facts can be useful in persuading a USCIS officer that what is written about the EB-1A extraordinary ability or EB-2 national interest waiver candidate carries some weight.
Subsequent Paragraphs Should Relate to the Purpose of the Letter
After the recommender is introduced in a letter about an EB-1A extraordinary ability or EB-2 national interest waiver candidate, the next paragraphs should relate to the green card beneficiary’s accomplishments. The letter can include any, or most, of an employment-based green card applicants notable achievements, including their research and citations, original contributions, and awards.
If the EB-1A extraordinary ability or EB-2 NIW applicant wants their recommender to describe their leading and critical role in an organization, there is a particular way that these achievements should be written. First, the company should be shown to be notable, such as through its large revenue, awards, or humanitarian efforts. Then, the list of accomplishments of the green card applicant should be specific and measurable, including dollar amounts and percentages. Lastly, they should be shown to have benefitted the organization as a whole.
Closing the Letter
The final paragraph of a letter of recommendation for an EB-1A extraordinary ability or EB-2 NIW candidate should state that the person is highly deserving of a green card. It should also tell the USCIS adjudicator that the applicant stands out among their peers and will greatly benefit the United States if a green card is approved.
When the recommender signs the letter, they should include their title and contact information. Finally, it should be printed on company or university letterhead.
Ask for a Sample from an Immigration Attorney
Some immigration law firms, such as Gallagher Domanski, are willing to provide a sample of a letter of recommendation to a foreign national. This can be helpful if you decide to draft a letter of recommendation by yourself so that it can be presented to someone for signature. Contact us with your questions about the EB-1A extraordinary ability or EB-2 NIW green card and related letters of recommendation.