Green Card Sponsorship

At the end of the 2016 calendar year, the Administrative Appeals Office (AAO) published a welcome precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).  In this case, the AAO has significantly revised the framework for evaluating National Interest Waiver (NIW)-based immigrant visa petitions that had been established in 1998 in Matter of New York State Dep’t of Transp.. (NYSDOT).

Because the NIW route to permanent residence (green card) status avoids the labor certification process (which involves testing the U.S. labor market and proving to the U.S. Department of Labor that there are no U.S. workers, able, willing, qualified and available for the job in question) and allows a foreign national to petition for himself or herself (or to have an employer petition on his or her behalf), it is an attractive immigration option for those who qualify.  However, the adjudication standard set in the NYSDOT case was confusing and restrictive, and deterred many people from utilizing this immigration category as a pathway to achieving lawful permanent residence status.

Matter of Dhanasar breathes new life into this green card category.

Under INA §203(b)(2)(B)(i),  USCIS may grant a national interest waiver of the labor certification requirement, if the petitioner demonstrates that the beneficiary is a member of the professions holding an advanced degree or equivalent (or has exceptional ability in the arts, sciences or business) and will substantially contribute to the U.S.’s economy, culture, educational interests or welfare. The foreign national’s contributions must be in the sciences, arts, professions or business and his or her work must be in the “national interest of the United States”.

Under the prior NYSDOT standard, a petitioner had to meet a three-part test, proving that: (1) the employment is of substantial intrinsic merit; (2) any proposed benefit be national in scope; and (3) the national interest would be adversely affected if a labor certification were required for the foreign national.

Continue Reading Matter of Dhanasar Breathes New Life into NIW Green Card Category

On December 30, 2015, the US Court of Appeals for the 2nd Circuit ruled that US Citizenship and Immigration Services (USCIS) must notify either the beneficiary of an approved I-140 or successor employer, of any intent to revoke the petition prior to revocation (Mantena v. Johnson, Docket No. 14-2476-cv, (2nd Cir., Dec. 30, 2015)).  Continue Reading 2nd Circuit Court Requires I-140 Revocation Notice: Analysis

On December 31st, the Department of Homeland Security issued a proposed rule addressing and extending employment flexibility for certain classes of nonimmigrants and prospective immigrants. The new rule proposes to amend current regulations to “clarify and improve longstanding agency policies” related to provisions in both the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) and the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”). When implemented, the rule has the potential to provide a clear adjudication system for USCIS and benefits for foreign nationals who would like more flexibility in the U.S. job market. While actual implementation is historically varied, we are cautiously optimistic that this rule will provide more standardized guidance for petition and application adjudication at the service centers. This post will examine the benefits for individuals who are already in the permanent residency process. Continue Reading DHS Proposes New Rule for Increased Job Flexibility: Part 1

It’s September 25th, not April 1st! Like a cruel April Fool’s joke, the October Visa Bulletin has just been revised and the new India & China EB-2 filing dates have retrogressed. The instructions in bold type in the new bulletin indicate that this revised bulletin is to be used to determine who is eligible to file on October 1st.

Something similar to this happened in 2007 when the Department of State and Department of Homeland Security got in what may be best described as a spat over advancing visa bulletin numbers. In 2007, the government gave in and ended up allowing filings based on the previous bulletin.

These government agencies will be harshly criticized for releasing a revised visa bulletin only days before the October 1st planned filing date under the initial bulletin issued on September 9th. We are waiting to see if anything changes early next week.

USCIS announced today that it will:

“suspend final adjudication of employment-based Form I-485 applications… because the Department of State reports that the statutory cap has been reached for the employment-based preference categories for fiscal year (FY) 2015.”

However, this is not something to panic about.

As my colleague Michele Frangella wrote about in August, the end of the government’s fiscal year is September 30th. As of today, all available employment-based green cards have been used up so there are no more green card numbers for USCIS to access to approve cases for the next 6 days.  Once the new fiscal year starts on October 1st, they will again have green card numbers officially available. It doesn’t impact eligibility to continue to file I-485 applications based on Visa Bulletin guidance, including those cases newly eligible to file October 1st.

 

Exciting news from U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) this week. The agencies announced that beginning with the visa bulletin effective October 1, 2015, USCIS will accept for filing I-485 applications to adjust status to Permanent Resident according to a separate filing date chart.

Continue Reading USCIS To Accept Certain I-485/AOS Applications Before Priority Date Becomes Current

It’s that time of year again. The Department of State will begin accepting requests to register for the 2016 Green Card Lottery. Online registration begins today, October 1, 2014 and will conclude on November 3. The lottery, officially known as the Diversity Immigrant Visa Program (DV-2016), is a path for foreign nationals who meet the eligibility requirements to secure permanent resident status in the United States.

Facts about the Green Card Lottery for 2016

  • Online registration begins on the US Department of State’s website on October 1, 2014 and ends on November 3.
  • There is no fee to register for the Green Card Lottery.
  • 50,000 green card entries from those who meet the eligibility requirements will be selected.
  • Being selected does not guarantee a person will get a green card — applicants still need to  meet the standards for admissibility and to file a visa application and supporting documentation with USCIS within the designated time period.

For more information about the Diversity Visa Lottery Program and how it all works, read this advisory Susan Cohen recently wrote that sums up what foreign nationals need to know.

The First Circuit, in a recent landmark decision, Massachusetts v. United States Department of Health and Human Services, held that Section 3 of the Defense of Marriage Act (“DOMA”) violates the Equal Protection Clause of the Constitution. In the immigration context, DOMA is a barrier to immigration equality for same-sex couples and their families. Specifically, because of DOMA, U.S. citizens have no legal ability to file a green card petition for a same-sex spouse. This is one of the most common immigration benefits sought by U.S. citizens. Same-sex couples are also excluded from all other immigration benefits that flow from a legal marriage. Continue Reading First Circuit Holds DOMA Unconstitutional