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

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our fifth post we will discuss executive action on the Department of State’s visa bulletin and the related controversy and lawsuit. 

Visa Bulletin Changes: USCIS Gets Involved

In October 2015, the Department of State (DOS) unveiled a significant change to its visa bulletin. The monthly bulletin outlining immigrant visa availability issued by the State Department has two charts: one showing cutoff dates that govern when visas can be issued, and a new chart containing cutoff dates for when applications can be filed. In addition, USCIS now provides information on its website regarding the eligibility of applicants to file applications for adjustment of status US permanent residency, and it cross-references the DOS charts. Continue Reading A Preview of Business Immigration in 2016: Visa Bulletin Controversy Continues (Part 5/6)

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

What do Facebook, YouTube and Twitter have in common? The U.S. Embassy in Tel Aviv is using all three to reach visa applicants. The goal is to educate the public in Israel about the visa process. With Israel being the app center of the universe, there couldn’t be a better way of communicating with prospective visa applicants who ask essentially the same questions. As a response to a tech-driven culture in Israel, which sends thousands of its citizens to the U.S. each year on all types of visas, the U.S. Embassy announced the launch of a video series about the visa process.

Continue Reading U.S. Embassy in Tel Aviv Launches Online Videos about the Visa Process

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.

In conjunction with the redesign of the legacy e-filing system and transition to ELIS, USCIS has changed the process for paying the USCIS Immigrant Fee online. The revised payment process aims to “reduce the amount of information an immigrant must provide to USCIS.” In addition, anyone, including a family member, friend, employer, attorney, or accredited representative can pay the fee on behalf of an immigrant. All that is needed is the immigrant’s Alien Registration Number (A-Number) and DOS Case ID.

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