Green Card & Visa News » Permanent Residence

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.

British Columbia expands Provincial Nominee program to bring in more foreign workers

Tushar Mathur — Fri, 27 Apr 2012 05:38:00 +0000

Canadian province, British Columbia, has announced a new pilot project to bring more immigrant workers to its Peace River Regional District. They hope the plan will help fix the region’s severe worker shortage.
The new initiative, designed to expand British Columbia’s Provincial Nominee Program, will be called the Northeast Pilot Project. The British Columbia government hopes that it will attract foreign workers to jobs of all skill levels.

“This is all part of the jobs strategy to support the jobs plan,” said John Yap, Chair of the British Columbia’s Immigration Task Force in an announcement at Fort St. John. “All kinds of jobs. Skilled, semi- skilled, to help support the economy here in the northeast.”

Currently the province’s employers are restricted to choose between twenty-two entry level and skilled occupations to qualify for the Provincial Nominee Program. Under the Northeast Pilot Project the number of occupations would be increased to over one hundred, and include positions such as mine service workers, heavy equipment operators and retail workers.

“First of all, the occupations have expanded dramatically, secondly there’s a key person that the businesses can go to for assistance, and thirdly the timeline that it takes to get approval for these immigrants to come to Canada and become permanent residence,” said Fort St. John Mayor Lori Ackerman.
Study Migrate offers a variety of programmes in Canada. Please visit our Canadian page for more information: http://www.globalvisasupport.com/canada.html

Increased funds required for UK Tier 2 visa applicants from 14 June 2012

Tushar Mathur — Thu, 05 Apr 2012 08:18:00 +0000

The UK Border Agency (UKBA) announced that they will increase the funds required to satisfy the maintenance requirement for Tier 2 visas applicants. The changes go into effect from 14 June 2012.

This follows a written ministerial statement from 15 March 2012 that outlines a number of changes to the Immigration Rules, including the closure of the Tier 1 Post Study Work route on 6 April 2012. The following changes will be made to the maintenance requirement for Tier 2 visa applicants:

Tier 2 Visa Applicants: Increased from £800 to £900
Dependents of Tier 2 applicants who have been in the UK for less than 12 months: Increased from £1,600 to £1,800
Dependents of Tier 2 applicants – all other applications: Increased from £533 to £600

If you plan to make a Tier 2 visa application on or after 14 June 2012, you must ensure that you have the correct funds held in your account as soon as possible. The funds will need to be held in your bank or savings account for a 90 day period prior to the date of your visa application. For this reason, the UKBA has delayed the implementation date until 14 June to allow immigrants sufficient time to hold these funds for 90 days, prior to submitting a visa application.

The UKBA has stated that these increases are in line with cost of living rises in the UK.

Other Tier 2 changes that will go into effect 6 April 2012 include:

Introducing a new minimum salary requirement of £35,000 for Tier 2 general and sportsperson migrants who wish to settle here (indefinite leave to remain or permanent residence) from April 2016 (with exemptions for those in PhD level and shortage occupation categories).
Introducing a ‘cooling-off period’ across all the Tier 2 routes. Tier 2 migrants will need to wait for 12 months from the expiration of their previous visa before they may apply for a further Tier 2 visa. Although, it is important to note that many Tier 2 visa holders can still apply for indefinite leave to remain if they meet all of the requirements including showing that they meet the new minimum pay requirement of £35,000.
Introducing new post-study arrangements for graduates switching into Tier 2.

Global Visa Support offers a variety of programs in United Kingdom. Please check our UK page for more information: http://www.globalvisasupport.com/uk.html

Canadian immigration announces faster permanent residency for foreign caregivers

Tushar Mathur — Sun, 08 Jan 2012 10:43:00 +0000

Canadian immigration has now shortened the procedures needed for foreign live-in caregivers to obtain permanent resident status and has also announced several changes which they say will protect the caregivers from abusive employers. Canadian Citizenship, Immigration and Multiculturalism Minister Jason Kenney stated the changes were the Canadian government’s response to reports of abuse to foreign caregivers by their employers.

“Too many live-in caregivers have completed their work obligations but must continue living in the home of their employer, waiting for their application for permanent residence to be reviewed,” said Kenney. “This is understandably frustrating. That’s why we have started issuing open work permits to live-in caregivers as soon as they have completed their obligations and submitted an application for permanent residence.”

Under the new procedures, a foreign caregiver can apply for permanent residence after 3,900 work hours, rather than after two years of work as a caregiver in Canada as required under the old system, ensuring overtime is appropriately recognized. The Live-in Caregiver Program allows Canadian families to hire workers from abroad to provide care to a child, an elderly person or an adult with disabilities when there is a demonstrated shortage of Canadians and permanent residents to fill available positions.

“The change I have announced today will help caregivers settle into their new life in Canada while they wait for their permanent resident applications to be processed,” Kenney added. “And with the significant improvements being made to our global case processing system, my department’s officers will be better able to manage the file load between Canada and missions abroad and improve the efficiency of that processing.”

In 2010, Canadian immigration admitted a record number of permanent residents through the Live-in Caregiver Class—nearly 14,000 in all— This is similar to the number of live-in caregivers who entered the country as temporary foreign workers in 2007.

The changes announced by Canadian immigration include:

the elimination of the need for a second medical examination when the caregiver applies for permanent residence;
increasing the amount of time a caregiver has to complete the required 3,900 hours for permanent residence from three years to four;
the adoption of a standardized employment contract that ensures both parties agree to the salary, hours of work, vacation time, overtime, holidays, sick leave, and the terms of termination and resignation;
defining the costs the employer is obliged to pay, including the caregiver’s travel expenses in coming to Canada, medical insurance, workplace safety insurance and third-party representative fees;
emergency processing of work permits and employer authorizations to hire live-in caregivers who have been abused and need to leave their employment immediately; and
an assessment of the genuineness of the job offer, as well as confirming the employer has sufficient financial resources to pay the wages of the caregiver and whether the accommodations being provided are adequate.

Global Visa Support offers several Canadian programs. Please visit our website for more information: http://globalvisasupport.com/canada.html

Form I-130 Filing Location Changes

Tushar Mathur — Tue, 27 Dec 2011 04:01:00 +0000

“WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) will change the filing locations for Form I-130, Petition for Alien Relative. Effective Jan. 1, 2012, domestic petitioners will mail their stand-alone I-130 applications to either the Chicago Lockbox or the Phoenix Lockbox, depending on where they reside in the United States. The new filing locations will be updated with the corresponding addresses on Jan. 1 on the Form I-130 Direct Filing Locations page. This effort will balance workloads between the two locations and provide more efficient and effective processing of Form I-130.

There will be no change in filing locations when submitting Form I-130 along with Form I-485, Application to Register Permanent Residence or Adjust Status. Individuals filing these forms together will continue to mail them to the Chicago Lockbox facility. Petitioners filing from overseas addresses in countries without USCIS offices will also continue to file at the Chicago Lockbox facility. Petitioners residing in a country with a USCIS office may send their I-130 forms to the Chicago Lockbox, or they may file their Forms I-130 at the international USCIS office having jurisdiction over the area where they live.”

Source: USCIS Website

USCIS proposes rule to process EB-5 immigrant petitions filed between 1995 and 1998

Tushar Mathur — Thu, 29 Sep 2011 04:25:00 +0000

On Sept. 27, 2011, the USCIS announced that it has published a new rule for the processing of certain applications approved between 1995 and 1998 by foreign investors under the fifth preference employment-based immigrant visa classification (EB-5). The authority of the rule comes from the 21st Century Department of Justice Appropriations Authorization Act.

The new rule applies to approximately 580 principal immigrant investors who had their Immigrant Petition by Alien Entrepreneur (I-526) approved between Jan. 1, 1995, and Aug. 31, 1998. Their dependents are also covered.

In addition to an approved I-526 petition, these applicants must have also met the following condition prior to Nov. 2, 2002: Either filed a Form I-485 to attempt to adjust their status, or a Form I-829 to seek to remove their conditional permanent residence status obtained as an alien entrepreneur.

The proposed rule, if adopted, would provide an additional two-year period of time for these immigrant investors to meet the EB-5 investment and job-creation requirements. Other Eb-5 applicants would not be affected by this new rule. The public has 60 days to submit comments on this proposal. The new rule is accessible at www.regulations.gov.

Eligibe Widows Must File Self Petition by October 28, 2011

Tushar Mathur — Mon, 19 Sep 2011 19:50:00 +0000

USCIS reminds certain eligible widows or widowers of deceased U.S. citizens to file their visa petitions by October 28, 2011 – the deadline imposed by the FY2010 DHS Appropriations Act. This Act, signed into law by the President on October 28, 2009, removed the requirement that the marriage must have existed for two years before the death of the U.S. citizen spouse in order for the surviving spouse to self-petition for lawful permanent residence status. The elimination of the so-called "widow penalty" also allows any minor children of the widow(er) to apply for status. However, the law imposed a two-year deadline to file the petition. Applicants whose U.S. citizen spouse died on or after October 28, 2009 will
have two years from the date of the citizen spouse's death to file a
Form I-360 petition. For whose applicants whose U.S. citizen spouse died before October 28, 2009, and if they did not have a Form I-130 visa petition pending on October 28, 2009, they must file the I-360 visa petition on or before October 28, 2011.

Australia lowers barrier for entry for foreign students

Tushar Mathur — Thu, 14 Apr 2011 17:45:00 +0000

Australia will lower the barriers for entry for many people who with to obtain student visas.
The student visa assessment level for 38 countries will be lowered across one or more visa subclasses as of 2 April 2011. The changes come after an internal review of Australia’s student immigration system by the Department of Immigration and Citizenship (DIAC).

The review was most likely prompted by calls from Australia’s education sector to make it easier for overseas students to gain entry; In recent years, Australia has seen a sharp decline in the number of international students applicants after stricter rules were put into place.

Applicants from 38 countries will benefit by not having to provide so much documentation in support of their student visa applications; It is likely that less documentation will need to be provided to show English language proficiency, financial capacity and academic qualifications.

“Prospective students and their families, agents and education providers should be aware that these changes will lower the minimum evidentiary requirements needed for the grant of a student visa for the selected countries and education sectors,” a DIAC spokesman said today.

DIAC was quick to point out that the changes only affect the requirements for initial entry as a foreign student — not the requirements to stay on in Australia as a permanent resident after studies are completed.

“While many international students apply for permanent residence when they complete their studies, this is an entirely separate process and there is no guarantee that, on the basis of having held a student visa, a person will meet the requirements to be granted permanent residence,” DIAC said.

DIAC warned potential applicants not to choose Australia solely based on their chances of obtaining a permanent skilled immigration visa in future.

“Students should not make educational choices solely on the basis of expecting to achieve a particular migration outcome, because the skilled migration program will continue to change and adapt to Australia’s economic needs,” the spokesman said.

270,499 student visas were granted during the 2009-10 Fiscal Year, with 382,710 student visa holders actually in the country as at 30 June 2010; 80,450 of these students were from India, 80,010 were from China and 21,720 were from South Korea.

Canadian immigration proposes stricter marriage requirements

Tushar Mathur — Thu, 31 Mar 2011 19:29:00 +0000

The Canadian government has proposed a new rule which would require a person coming to stay in Canada with their partner to stay in the relationship for two years before being granted permanent residence.

The stricter requirement is an attempt by Citizenship and Immigration Canada (CIC) to crack down on fraudulent marriages.

Under the new proposal, a spouse or partner from overseas who has been in a relationship with their Canadian partner for less than two years would only be granted conditional permanent residence.

If the overseas partner failed to stay in the relationship, or it can be shown that it is not a genuine relationship, conditional permanent residence could be revoked.

The United States, Britain and Australia already have similar laws in place.

The Canadian government has also proposed to introduce a “sponsorship bar”. This would prevent those who gained entry to Canada themselves as sponsored partners and spouses from sponsoring a new partner for five years.

UK lures rich immigrants

Tushar Mathur — Sat, 26 Mar 2011 13:17:00 +0000

The UK has announced new visa rules which would allow wealthy foreign-born investors and entrepreneurs to gain permanent residence (properly known as indefinite leave to remain) in the UK much more quickly than normal.

The new rules, which take effect in April 2011, would allow people who invest at least 5 million to settle (indefinite leave to remain) in Britain after three years. Those who invest at least 10 million will be able to settle after two years. Normally, people must live in the UK lawfully for five years to attain settlement.

Immigration minister Damian Green also announced a new visa which will allow an investor or entrepreneur with 50,000 of funding from a reputable organisation in a “high potential” business to come to the UK. The usual entrepreneur visa requires that an applicant already has 200,000 available to invest in the UK.

There will also be a new visitor visa for prospective entrepreneurs. This will allow you to enter the UK to secure funding, and make arrangements to start your business; You will then be able to apply for a full entrepreneur visa that will allow you to live in the UK on a long term basis.

Entrepreneurs in the UK will also be able to gain permanent residence more quickly by creating 10 jobs or by turning over 5 million pounds over a three-year period.

It remains to be seen how successful these changes in the immigration rules will be in practice. Only one thousand of these new visas will be available. Very few people in the World have GBP5 Million to invest anyway. Probably a number of businessmen will employ at least ten people in their new business in the UK in the first three years; These people may turn out to be the main beneficiaries of the changes.

Other Countries are also taking steps to encourage entrepreneur immigration. The US has announced legislation which if enacted will create a new “E-6″ or “StartUp” visa, to attract foreign-born entrepreneurs to the US.