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Immigration Case Examples

EB-1

You may be eligible for the EB-1 extraordinary ability immigrant classification if you have extraordinary ability in the sciences, arts, education, business, or athletics as demonstrated by sustained national or international acclaim and recognized achievements in the field of expertise. In addition, you must show that you will continue working in your area of extraordinary ability. Extraordinary ability means that your level of expertise indicates that you are one of the small percentage of individuals who have risen to the very top of your field. You may self-petition as an extraordinary ability individual since a job offer is not required for this classification.

 

EB-2

The EB-2 classification is divided into two sub-categories: professionals with advanced degrees and individuals with exceptional ability in the sciences, arts or business. Although a job offer from an employer and a labor certification from the Department of Labor are generally required for the EB-2 classification, you may be eligible to self-petition if you are asking for a waiver of the labor certification requirement based on the national interest.

 

EB-2 ADVANCED DEGREE PROFESSIONAL

You may be eligible for this category if: (1) you are a professional holding a U.S. Master’s degree or higher or foreign equivalent degree that relates to the field you will be working in; or (2) you have a U.S. Bachelor’s degree or foreign equivalent degree and at least 5 years of progressively responsible experience in your field after receiving your Bachelor’s degree.

 

EB-2 EXCEPTIONAL ABILITY

You may be eligible for this category if you have exceptional ability in the sciences, arts, or business. Exceptional ability means that you have a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.

 

NATIONAL INTEREST WAIVER

A foreign national may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his (her) admission to permanent residence would be in the National Interest of the United States.

There is no rule or statutory standard as to what will qualify an alien for a National Interest Waiver. USCIS considers each case on an individual basis.

The procedure is to file the case with evidence to establish that the your admission to the United States for Permanent Residence would be in the national interest.

Requirement 1: You must show that you plan on working in the United States in an area of substantial intrinsic merit.

Under the first prong of the NYSDOT test, it is important for you to focus on the proposed employment. USCIS will look at your documents to determine whether the importance of your proposed work is readily apparent.  Some of the evidence you may submit to demonstrate that you plan on working in the United States in an area of substantial intrinsic merit includes:

  • A letter from you and/or your company describing the work and its importance

  • Articles or other published media discussing your and/or your company’s work and its importance

  • Letters from experts in the field attesting to your work and its importance

    • Testimonial letters should include information about the expert’s own credentials, such as a C.V.

Requirement 2: You must show that the proposed impact of your work is national in scope.

While your employment may be limited to a particular geographic area, you must establish a benefit to more than a particular region of the country. Under the second prong of the NYSDOT test, you must demonstrate that the proposed benefit to be provided will be national in scope. USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field. Some of the evidence you may submit to demonstrate that the proposed impact of your work is national in scope includes:

  • Published articles or media reports

  • Copies of contracts, agreements, or licenses showing the scope and impact

  • Letters from current and former employers discussing your work and its national importance

  • Letters from experts in the field attesting to your work and its national importance

    • Testimonial letters should include information about the expert’s own credentials, such as a C.V.

Requirement 3: You must show waiving the labor certification requirement would benefit the national interests of the United States.

The purpose of the labor certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. Thus, when deciding whether to grant a waiver of the labor certification requirement, USCIS looks at all of the evidence to see whether the national benefits you offer are so great that they outweigh the national interests inherent in the labor certification process. This means that your evidence must show that you serve the national interest to a substantially greater extent than the majority of your colleagues and that you have a degree of influence on your field that distinguishes you from your colleagues. The national interest evaluation is prospective. This means you must show that you have a past record of specific prior achievements that indicate future benefits to the national interests of the United States.

Demonstrating that your business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify you for an NIW.  However, you still have to show that the creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Some of the evidence you may submit to demonstrate that waiving the labor certification requirement would benefit the national interests of the United States includes:

  • Copies of published articles that cite or otherwise recognize your achievements

  • Copies of grants or other funding you received listing the amount and terms of the grants, as well as the principal and co-investigators

  • Documents showing how your work is being implemented by others, for example:

    • Contracts with companies using your or your company’s products

    • Documents showing licensed technology that you and/or your company invented or co-invented, and how that licensed technology is being used by others

    • Patents or licenses awarded to you and/or your company with documents showing how they are being used and why they are significant to your field

 

U VISA

The U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Congress created the U non-immigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.

You may be eligible for a U nonimmigrant visa if:

  • You are the victim of qualifying criminal activity.

  • You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.

  • You have information about the criminal activity.  If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf.

  • You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime.  If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.

  • The crime occurred in the United States or violated U.S. laws.

  • You are admissible to the United States.  If you are not admissible, you may apply for a waiver.

 

ASYLUM

Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

  • Race

  • Religion

  • Nationality

  • Membership in a particular social group

  • Political opinion

If you are eligible for asylum you may be permitted to remain in the United States.  You may include your spouse and children who are in the United States on your application at the time you file or at any time until a final decision is made on your case.  To include your child on your application, the child must be under 21 and unmarried.

 

Permission to Work in the United States

You cannot apply for permission to work (employment authorization) in the United States at the same time you apply for asylum.

You may apply for employment authorization if:

  • 150 days have passed since you filed your complete asylum application, excluding any delays caused by you (such as a request to reschedule your interview) AND

  • No decision has been made on your application

If you are granted asylum you may work immediately. Some asylees choose to obtain Employment Authorization Documents (EADs) for convenience or identification purposes, but an EAD is not necessary to work if you are an asylee.

 

Bringing Your Family to the United States

If you are granted asylum you may petition to bring your spouse and children to the United States.  To include your child on your application, the child must be under 21 and unmarried.

You must file the petition within two years of being granted asylum unless there are humanitarian reasons to excuse this deadline.

 

Filing for Permanent Residence (Green Card)

You may apply for a green card one year after being granted asylum.  You must submit a separate application packet for yourself and, if applicable, for each family member who received derivative asylum based on your case.

 

NATURALIZATION

Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA).

  • You have been a permanent resident for at least 5 years and meet all other eligibility requirements.

  • You have been a permanent resident for 3 years or more and meet all eligibility requirements to file as a spouse of a U.S. citizen.

  • You have qualifying service in the U.S. armed forces and meet all other eligibility requirements.

  • Your child may qualify for naturalization if you are a U.S. citizen, the child was born outside the U.S., the child is currently residing outside the U.S., and all other eligibility requirements are met.

 

EB-5 Immigrant Investor Program

USCIS administers the EB-5 Program. Under this program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if they:

  • Make the necessary investment in a commercial enterprise in the United States; and

  • Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

This program is known as EB-5 for the name of the employment-based fifth preference visa that participants receive.

Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.

 

O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O nonimmigrant classification is commonly referred to as:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)

  • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

  • O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.  For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1

  • O-3: individuals who are the spouse or children of O-1’s and O-2’s