Green Card & Visa News » Beneficiary

Recent Decision on National Interest Waiver

Tushar Mathur — Thu, 10 May 2012 15:09:00 +0000

Foreign professionals and researchers applying for employment-based permanent residence status may consider obtaining an
national interest waiver (NIW).
Normally, a foreign worker who wishes to apply for a green card by
filling a U.S.
job opening must obtain a Certified Permanent Labor Application (“Labor Certification”).
The Labor Certification is to show that the employer cannot find a U.S. worker who
is qualified, willing and ready to do the job.
Applicants who apply for a national interest waiver are requesting that
the Labor Certification be waived because it is in the interest of the United States.

Unfortunately, the jobs that qualify for a national
interest waiver are not defined by statute. National interest waivers are
usually granted to those who have exceptional ability and whose employment in
the United States
would greatly benefit the national interest. Applicants seeking a national interest waiver may self-petition (they do not
need an employer to sponsor them) and may file their green card application directly
with USCIS.

The legal standard for adjudicating an NIW petition was clarified by an Administrative
Appeals Office (AAO) decision, Matter of New York Dept. of
Transportation in 1998. In NYDOT, the
Beneficiary possessed a master’s degree in civil engineering and was being
petitioned to provide professional engineering services for the rehabilitation,
replacement, maintenance and inspection of bridges. The AAO cited three factors
that must be considered when evaluating a request for a national interest
waiver.

First, it must be shown that the foreigner seeks employment in an area of
substantial intrinsic merit. Eligibility is not established solely by showing
that the beneficiary’s field of endeavor has intrinsic merit. In the NYDOT
case, substantial intrinsic merit was found. The importance of proper
maintenance of the state’s bridges was sufficient to meet this first criteria.

Secondly, the petition must prove that the proposed benefit will be national in scope. In the NYDOT
case, while the alien’s employment in NYDOT was limited to the local area, New York‘s bridges and
roads connected the state to the national transport system. Because the proper
maintenance and operations of bridges and roads served the interests of other
regions as well, the benefit was national in scope.

Finally, the petitioner
must demonstrate that the national interest would be adversely
affected if a labor certification were required for the alien. The engineer
in NYDOT failed to meet this criteria because his contributions did not stand out among his peers, and therefore, his petition did not warrant
a waiver of the Labor Certification.

A recent Administrative Appeal Office (AAO) decision from
November 2011 provided some additional guidelines on the requirements of the
NIW application. An NIW petition filed
by a post doc research scientist in the field of nanoscience and nanotechnology
was denied by the USCIS
Texas Service
Center. The AAO reversed the denial on appeal mostly
because the TSC failed to give proper evidentiary weight to the scientist’s
influential published work in his field.
Although he only had four publications, they were published in the well-known Journal of the American Chemical Society and were
cited more than 400 times by his peers.

The AAO also noted that the legislature
history suggested that the standard of adjudication for NIW applications should
be applied as flexible as possible.
According to the AAO, it does not matter that the petitioner’s articles
were published when he was still a graduate student, which is an issue for
EB-1B outstanding researcher petitions.
Finally, the AAO also noted that Congress’s intention is to grant national interest waiver on the basis
of
the merits of the individual applicant rather than the importance of a particular field of work; the nonscientist met his legal burden
of proof for a national interest waiver.

In sum, the requirements for a national interest waiver are stringent. But for those who meet the basic requirements, a waiver can substantially speed up the green card application process.

H-1B Cap-Gap Relief for FY2013

Tushar Mathur — Sat, 31 Mar 2012 01:30:00 +0000

(The USCIS released the following Q&As on H-1B Cap-Gap Relief for FY2013 on 03/29/2012.)

Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations – Questions and Answers

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2012 under the Fiscal Year (FY) 2013 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?

A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?

A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an FY 2013 H-1B cap-subject petition is April 2, 2012 for employment starting not before October 1, 2012. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1, 2012. Consequently, F-1 students whose periods of authorized stay expire before October 1, 2012, and who do not qualify for a cap-gap extension, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?

A3. H-1B petitions that are timely filed on behalf of an eligible F-1 student and request a change of status to H-1B on October 1, 2012 qualify for a cap-gap extension.

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, which begins Monday April 2, 2012, while the student’s authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filed request to change status to H-1B on October 1, 2012 has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30, 2012 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?

A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1, 2012.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?

A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?

A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1, 2012 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?

A7. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?

A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?

A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of this authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?

A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1B petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?

A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?

A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

§ the student finds employment appropriate to his or her OPT;

§ the period of OPT is unexpired; and

§ the DSO has requested a data fix in SEVIS.

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?

A13.Yes. The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect. The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date. This will prevent the student from changing to H-1B status. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved before resuming employment.

Q14. In cases where a student is authorized to work OPT past the H-1B change of status effective date, can the student continue working on OPT if a request to revoke/withdraw the H-1B change of status is submitted to USCIS?

A14. If the H-1B revocation occurs before the H-1B change of status effective date, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after the H-1B change of status effective date, the student will need to stop working before the H-1B change of status effective date, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.

NOTE: This is NOT a cap-gap situation since the student has an EAD authorizing OPT beyond the H-1B change of status effective date.

Q15. Do students remain in valid F-1 status while the request to change the OPT end date is pending?

A15. If the H-1B revocation occurs before the H-1B change of status effective da te, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Last updated:03/29/2012

Poverty Guidelines for 2012 for Affidavit of Support of Immigrants

Tushar Mathur — Sat, 10 Mar 2012 18:25:00 +0000

There are many legal requirements for a foreigner who wants to become a Lawful Permanent Resident of the

United States

. One of which is proof that the intending immigrant will not become a financial burden of the United States. In all family-based petitions, the petitioner must promise under oath that the beneficiary immigrant will not become a financial burden of the U.S. by completing a Form I-864, Affidavit of Support. The only exception is if the beneficiary has already completed 40 quarters of work in the U.S. The petitioner (also the financial sponsor) must demonstrate in Form I-864 an income of at least 125 percent of the current poverty level for the his household size, including the immigrants and their dependents.

If the petitioner cannot meet the I-864 requirements, another person may act as a joint sponsor and complete his or her own Affidavit of Support. Both petitioner and the beneficiary may also use their assets such as real estate, stocks, bonds, cash, etc., to meet the I-864 requirements.

Every year, the U.S. Department of Health and Human Services (HHS) publishes the poverty guidelines for the public every year. The 2012 guidelines have just been published, and they are listed below.

Size of Household	48 Contiguous States, D.C., U.S. Virgin Islands, Guam & CNMI	Alaska	Hawaii
125% of Poverty Line
2	18,912	23,650	21,762
3	23,862	29,837	27,450
4	28,812	36,025	33,137
5	33,762	42,212	38,825
6	38,712	48,400	44,512
7	43,662	54,587	50,200
8	48,612	60,775	55,887
	Add $4,950 for each additional person	Add $6,187 for each additional person	Add $5,687 for each additional person

BIA held F2A visa beneficiaries may not "opt out" of automatic conversion to F1

Tushar Mathur — Fri, 07 Oct 2011 04:19:00 +0000

The Board of Immigration Appeal (BIA) has just held that a visa beneficiary is not allowed to retain his F2A preference status by opting out of automatic conversion to the F1 category as a son of a United States citizen upon his parent’s naturalization. Matter of ZAMORA-MOLINA, ID 3729, 25 I&N Dec. 606 (BIA 2011)

The mother of the beneficiary son filed a visa petition on his behalf when he was under the age of 21. However, while the case was waiting for a visa number, the son turned 21 and, subsequently, the mother became a naturalized citizen.

The regulation automatically converts a F2A (minor unmarried child of resident parent) and F2B (adult unmarried child of resident parent) petition to be an immediate relative and F1 petition respectively upon the naturalization of the petitioner. 8 C.F.R. § 204.2(i)(3)

Section 6 of The Child Status Protection Act (CSPA), also known as section 204(k)(2) of the INA, allows an alien to affirmatively opt out of automatic conversion from the F2B category to the F1 category by filing a written statement with the Attorney General. However, BIA held that there is no provision of law that allows an applicant to “opt out” of automatic conversion from F2A to F1 when the petitioner-parent becomes a citizen. Hence, the son in this case is not able to adjust his status by using the current cut-off date under the Mexico F2A preference category.

This is a very important decision on a controversial issue. BIA did not address the Equal Protection argument raised by the son as it lacks authority to rule on Constitutional issues. However, the issue is hardly settled and will likely be revisited by a federal court soon.

Poverty Guidelines for 2011 for I-864

Tushar Mathur — Fri, 28 Jan 2011 16:08:00 +0000

An intending immigrant must prove to the U.S. government that he or she will not become a “public charge” after immigration. In other words, proof that there is sufficient financial support is one of the many requirements for a person to obtain a U.S. green card. In all family petitions, the petitioner must promise under oath that the beneficiary immigrant will not become a financial burden of the U.S. by completing a Form I-864, Affidavit of Support. The only exception is if the beneficiary has already completed 40 quarters of work in the U.S. The petitioner (also the financial sponsor) must demonstrate in I-864 an income of at least 125 percent of the current poverty level for the his or her household size, plus the beneficiary immigrant(s).

What if the petitioner cannot meet the I-864 requirements? Another person may act as a joint sponsor if the petitioner does not have the required financial resources. Both petitioner and the beneficiary may also use their assets such as real estate, stocks, bonds, cash, etc., to meet the I-864 requirements.

How do we know what the poverty guidelines are? It is the job of the U.S. Department of Health and Human Services (HHS) to publish poverty guidelines for the public every year. The 2011 guidelines have just been published, and they are listed below.

Size of Household	48 Contiguous States, D.C., U.S. Virgin Islands, Guam & CNMI	Alaska	Hawaii
125% of Poverty Line
2	18,387	22,975	21,162
3	23,162	28,950	26,650
4	27,937	34,925	32,137
5	32,712	40,900	37,625
6	37,487	46,875	43,112
7	42,262	52,850	48,600
8	47,037	58,825	54,087
	Add $4,775 for each additional person	Add $5,975 for each additional person	Add $5,487 for each additional person

New Rule in Force from 6th October

Tushar Mathur — Sat, 10 Oct 2009 18:13:30 +0000

There is a rule from the Department of Homeland Security that requires the sponsoring employers to file a petition for all the Aliens for whom R-1 non-immigrant status is sought. To comply with the same now the consular officers are required to ensure that, the said applicants have obtained an I-129 petition form from the Department of Home land security, prior to the issuance of the visa. The said rule has been in force from the 6^th of October 2009.

In case there is a further requirement of a clarification about this rule you might feel free to get in touch with the Legislation & Regulations division of the Visa Service’s. The contact person would be Lauren Prosnik. Phone # (202) 663-2951.

Now the question is what is this rule been promulgated for? The answer to that is, on the 26^th of Nov 08, the department of homeland security announced the requirement for the sponsoring employers to file a petition for all the Aliens for whom R-1 non-immigrant status is sought. Also as per the same law the period of the validity of the visa is not supposed to exceed the period as mentioned in the petition. As a result of that, an R-1 non-immigrant visa would now require the applicant to be established as a beneficiary of an approved petition. The implementation of this petition requirement by the United States Citizenship and Immigration Services has been, for the purpose of authenticating and determining the petitions from the religious organizations for the religious workers. This would also help to ensure that such religious workers are admitted into the United States on the request of a religious organization and that is exactly where the workers work.

Miscellaneous regulatory findings:

As per the Administrative procedure act there is a regulation that involves the foreign affairs function of the US therefore according to the 5 USC 553(a)(1) is not subjected to the procedures of rule making as set by 5 USC 553.

As per the Executive orders 12866, the new rule has been reviewed by the department of State to ensure its consistency with the regulatory philosophy and the principals set by the Executive orders 12866. They have also determined that the cost of maintaining this rule is justified according to the benefits that are to be derived out of it.

As per the paper work reduction act does not impose the requirements of information collection, as per the provisions of the paper work reduction act 44 USC chapter 35.