Q & A: Need to file GC under EB2 - Company norms forcing me to file EB3

Question: I have 4 Yr Bach Deg in Comp Sci Engg and close to 10 yrs Exp in the same company out of which 4.3 Yrs was in India. I was transferred to the US (now on L-1 'A' visa) in Aug '06 to the US through the same Employer and have been here since then. My company is skeptical to file my GC in EB2 stating that 5 yrs experience has to be gained before I was transferred to the US (which is considered my petitioning employer branch).

I want to understand how I can file under EB2? Should I wait until 10 yrs exp since I see this as one of the clauses?? OR
Should I file now and PORT into EB2 after 10 yrs Exp in the same company (counting India + US exp in the company) OR
USE any of MY Client accolades or awards since I manage a very CRITICAL portfolio)

Answer:  
 
Why are you not looking at the EB-1 Multinational Manager or Executive category? The requirements largely mirror those for the L-1A intra-company transfer.

With respect to EB-2, I may be able to clarify your company’s concerns. Notably, your EB-2 case is based on a prospective offer of employment, and experience gained in the job offered may NOT be used to qualify for the job. 

For example, let’s say you were transferred to the US in the position of Engineering Manager in 06, and have held this position since.  Now the company wishes to help you with your green card, and the prospective permanent job offer which is to serve as the basis of your green card case, is the position you have been occupying for the last five years or so, Engineering Manager.   You may NOT use your experience with the company in the job offered, ie, since your transfer to the US. 

This is prohibited, as the purpose of the labor certification process is to protect the American worker.  And so, if the law were set up to allow you to use experience in the job offered, it would give you an unfair advantage over the American worker. 

Now it may be possible to use your experience gained in India, but you have less than 5 years, which means you cannot qualify for a position with minimum requirements of a bachelor’s degree plus five years. 

Your options are to explore the EB-1 (best option, since there are no back logs!); or move into a different EB-2 position, that is substantially (at least 50%) different from the position you have been occupying since your transfer.  Under this second scenario, you could use the experience gained in the US!    

I can help you review your eligibility under the EB-1 category, if you can provide me with a copy of your last L-1A filing.  Please let me know if I may be of further assistance, and good luck! 

Best regards,

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

San Francisco Immigration Lawyer Q & A: Is my Labor Certification (PERM) based Green Card Application location specific?

Question: My I-140 was approved in May 2006, and my I-485 is still pending since July 2007. I have been working with Company A since 2003, and in January 2011 I moved from Indiana where I lived since 2003, to California. I still work for Company A in same position and with same salary. Do I have to move back to Indiana to get my green card or can I stay in California?

Answer: Yes, a labor certification (PERM) application IS location specific.  But, based on your fact pattern, it sounds like you are eligible to port your I-140 to the California position under AC-21 section 106 (c). If so, you are not required to return to Indiana.

This I-140 portability provision allows an approved or pending I-140 immigration petition filed on behalf of a foreign national [under EB-1-2, EB-1-3; EB-2; EB-3] categories to remain valid if (1) the foreign national's adjustment of status application has been filed and remained un-adjudicated for 180 days or more; and (2) the foreign national changes job or employers and the new job is in the same or similar occupational classification.

Further, there is a December 27, 2005 Aytes memo which indicates that an I-140 beneficiary may benefit from I-140 portability when seeking employment in a geographic area [whether city, country or state] different from the one in which the employment described in the relevant labor certification [PERM] application or immigrant petition was to take place.

Alternatively, if you determine you are not eligible to port under AC-21, then your employer may either confirm their intention to employ you in Indiana upon issuance of the green card; or start a new California based PERM application on your behalf.

Please let me know if I may be of further assistance.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

USCIS Director Alejandro Mayorkas Blog Post: Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth

Below please find a link to a blog post from the USCIS Director Alejandro Mayorkas, and some relevant excerpts, which discuss this current administration’s efforts to attract and retain high-skill entrepreneurs.

http://blog.uscis.gov/2011/08/encouraging-entrepreneurs-and-high.html

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced today [8/2/2011] that it will:

• Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

• Expand the Premium Processing Service to immigrant petitions for multinational executives and managers;

• Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

• Implement fundamental enhancements to streamline the EB-5 process based directly on stakeholder feedback;

• Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and startup companies.

Of course, these efforts are more than welcome. But, I am approaching the same with a healthy degree of skepticism, considering USCIS continues to make questionable [am being polite here] decisions on visa matters involving highly-skilled foreign nationals with legitimate U.S. job offers. 

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

San Francisco Immigration Lawyer Q & A: Labor Certification Application/PERM based green card cases and U.S. labor market tests

Q: My employer wants to file a Labor Certification “PERM” based green card application for me. What are the regulations regarding advertising the position?

MR: A labor certification application is commonly referred to as “PERM” application and is submitted electronically to the U.S. Department of Labor after the U.S. employer [sponsor] performs a good faith test of the U.S. labor market. The PERM based green card process consists of three Stages:

Stage 1: Labor certification application, ie, PERM – to Department of Labor.
Stage 2: I-140 Petition for Immigrant Worker – to the Immigration Service (US CIS).
Stage 3: Clearance for US lawful permanent residence, ie, the green card, through “adjustment of status” performed on US soil or “immigrant visa processing” performed at a US consulate abroad.

The employer must test the U.S. labor market for the position offered to the foreign national, to see if there is a U.S. worker – instead of the foreign national - qualified and available for the job. After testing the market, if there is no such worker, then the foreign national proceeds with the stages of the process. If a qualified and available U.S. worker is found, the green card process stops. Yet, the employer is not required to hire the U.S. worker who might turn up during recruitment. It just signals that the market contains qualified US workers who should be offered the job first. It does not prevent trying for the green card again.

San Francisco Immigration Lawyer Q & A: Can my employer sponsor me for a green card while I am in F-1 OPT status?

Q: I am in F-1 OPT [optional practical training] status and my employer wants to apply for green card. I graduated with a Master of Science in December 2010 and started my OPT in February 2011. Currently I am working for a leading IT company on a contract basis from March 2011 - present. I am planning to apply for an H-1B visa for April 2012 quota. For now, my employer wants start green card process while I am in F-1OPT status. My questions:

1. Am I eligible to start green card when I am in OPT status?

MR: Yes, the employment based green card process can start while you are in F-1 [student] status. Notably, your green card case is based on a prospective offer of employment. In other words, you need only be employed in the prospective position “upon issuance of the green card” – which means when your I-485 [adjustment of status] application is approved. Depending on the nature of your case, this might not occur for years.

2. If eligible, will I be considered as potential immigrant because I am applying in OPT (without H1) and will it spoil my future visa processing?

MR: Yes, you would be considered a potential immigrant, which is why companies often have a policy of changing F-1s and TNs [another temporary intent visa classification] to H-1Bs BEFORE starting the green card process. However, this change is not required for eligibility to start a green card case, and you need to consider in what context the issue of intent becomes relevant.

Primarily, immigrant intent might harm you if you are seeking an extension of your F-1 status, or if you are seeking entry to the US in F-1 status. In either of these scenarios USCIS/CBP might refuse the extension/entry based on determination you have immigrant intent [and therefore do not meet the temporary intent requirement for being a student].

Assuming you are not seeking an extension or plan to travel and return in F status, you should have no trouble avoiding either of this potential pitfalls. NOTE: Once you secure H-1B status on October 1, 2011, the next time you leave the US you will likely need to secure an H-1B visa stamp at a US consulate abroad. The H-1B does not require temporary intent, so a pending green card matter should not have a negative impact on your H-1B visa stamp application.

The other common scenario where immigrant intent might harm an F-1 is when the F-1 files a green card application shortly after entering the US in F-1 status. This might lead to a presumption of fraud. Specifically, that the F-1 never intended to study in the US; rather, just wanted to enter for the purpose of filing a green card application inside the US.

Assuming you started F-1 status year(s) ago, attended and finished school, this presumption should not apply to you.

3. If not eligible then what is the edibility criteria and when to start the process?

MR: As discussed above, you are eligible to start. To be clear, someone does not have to be in H-1B status to start a green card case. This is just the most common scenario. Eligibility criteria for employment based green card can be reviewed here: http://www.ryvinlaw.com/services/employment-based-green-cards/

4. Can you please brief me about the green card process for my situation.

MR: I would need to see your resume to review your best available green card options. You should also note that for most green card categories, both you and position offered must qualify. For example, with a Master’s degree, you have the qualifications for EB-2, but if the job offered does not require someone with a Master’s degree [or equivalent] then you cannot file in the EB-2 category.

***

Please let me know if you require clarification. Sounds like you have some good options ahead of you and I wish you the best of luck!

Sincerely,

Michael Ryvin, Partner
Rvyin Wallace Group
michael@ryvinlaw.com
1-415-765-0679

NIW [National Interest Waiver] green card petition approved for PhD student with only 3 scientific research publications and seven citations!

We are pleased to report an excellent decision from the USCIS [United States Citizenship and Immigration Service] Nebraska Service Center on a national interest waiver green card petition!

This was a challenging petition for a highly skilled, but young, social researcher, dedicated to improving the lives of America’s elderly population.  USCIS acknowledged "that the proposed employment was in the national interest of the United States". BUT, USCIS also had serious doubts about whether our client's "past record of specific prior achievement justified projections of future benefit in the national interest”.

By working closely with our client and some of the leading organizations in the United States devoted to research and education in all aspects of gerontology, we prepared a comprehensive response which clearly demonstrated that despite our client's low number of publications/citations, her impact on the field was substantial.  Specifically, we solicited the opinions of the aforementioned leading organizations, and documented her influence on the field by showing that other leading figures in the field were not only taking notice of her work, but were also using it to advance their own work. 

Ultimately, we are so pleased that our client can now focus on helping America's elderly population without being distracted by the immigration process!

Please find a description of the legal requirements for the EB-2 I-140 NIW petition after the jump.

EB-5 Investor Visa Spotlight: New Enterprises

Spotlight EB-5 New Enterprise

Q & A: NIW [National Interest Waiver] green card petitions, legal standards and practical tips

Question: I am a PhD candidate in petroleum engineering (finished my masters in 2009) who works at a supercomputing center. I have about 16 publications including one journal article and 1 book chapter. I am either 1st or 2nd author on these. I have been a reviewer on 6 conferences. My area of research is geologic CO2 sequestration, identifying the candidate reservoirs and studying the long term effects. To a lesser extent, the research is about shale gas (but in development phase) because that's where the CO2 is going to be stored. I managed to get 6 letters from collaborators, including 2 letters from NSF program directors. I also have a national award and about 40 citations of my work.

My question to you is this: What are my odds of getting an NIW EB2 approved given my qualifications?

Answer:  Hello and thank you for contacting me. Based on the information you have provided, it sounds very promising. Have you filed yet?

I would say your qualifications are good, in that USCIS should be satisfied that your past record of accomplishment will lead to tangible benefits in the US. However, with respect to the field, and whether it should be considered an area of substantial intrinsic merit and national in scope, that is more difficult to say, mainly because you have not provided as much information.

Please find below the standards for the NIW, for your reference. I would also advise that for EB-1 outstanding researcher/extraordinary ability cases and EB-2 NIW cases, presentation techniques play a large part in the process. In other words, you want to make the adjudicators job easier by presenting your evidence in a way that allows them to determine if your case is a winner within the first 5 minutes of review.

Q & A: H-1B portability after the 6th year; priority date recapture

Question:  Hello, can you please provide me some guidance on my H-1B scenario? I am working on H-1B since October 2004. My current company filed for my green card and my I-140 petition is approved, with a priority date in January 2009.  I have recently been approved for H-1B status beyond my 6th year, valid to July 2012.  Now I want to know what are my options if I want to move from this job/company?

1. Can I change companies on H-1B now? If so, would I get a 3 yr or 1 yr extension?

2. Do I need to take a break from H-1B status and wait for a year before I can file for a new H-1B? Or can I apply when the H-1B quota opens again in April 2011?

3. Would I retain my GC priority date if I change jobs?

Please find RWG answers after the jump.