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EB‐1A/NIW: ACHIEVEMENT‐BASED IMMIGRATION OPTIONS
Michelle Salter, Davis Wright Tremaine
Qingqing Miao, Lane Powell
EMPLOYMENT‐BASED IMMIGRATION OPTIONS: FIVE PRIORITY CATEGORIES
Employment‐based 1st Preference (EB‐1):
• EB‐1A: Individuals with Extraordinary Ability
• EB‐1B: Outstanding Researchers and Professors
• EB‐1C: Multinational Executives or Managers
Employment‐based 1st Preference (EB‐1):
• EB‐1A: Individuals with Extraordinary Ability
• EB‐1B: Outstanding Researchers and Professors
• EB‐1C: Multinational Executives or Managers
EB‐2: Members of Professions with an advanced degree or its equivalent, or individuals w/exceptional ability
EB‐2: Members of Professions with an advanced degree or its equivalent, or individuals w/exceptional ability
EB‐3: Professionals, Skilled Workers, or Other Workers
EB‐3: Professionals, Skilled Workers, or Other Workers
EB‐4: Special ImmigrantsEB‐4: Special Immigrants EB‐5: Immigrant InvestorsEB‐5: Immigrant Investors
2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5
EB-1a/b and EB-2 NIW issues
March 15-16, 2018 Page 1 of 8
FORM TO FILE:
I‐140 Immigration Petition: the intending immigration is
the “beneficiary” of a petition.
I‐140 Immigration Petition: the intending immigration is
the “beneficiary” of a petition.
The Petitioner is normally the “Petitioner.”
The Petitioner is normally the “Petitioner.”
The intending immigrant may both be the “Petitioner” and the “Beneficiary” – known as
“Self‐Petition.”
The intending immigrant may both be the “Petitioner” and the “Beneficiary” – known as
“Self‐Petition.”
STEPS AFTER THE PETITION IS APPROVED: ADJUSTMENT OF STATUS VS. CONSULAR PROCESSING
Adjustment of Status (AOS): Qualifying Applicants that are in the US
Form 485
Adjustment under INA § 245(a)
Adjustment under INA § 245(i) (Family‐based)
Adjustment under INA § 245(k): certain beneficiaries of EB petitions who are otherwise ineligible under INA §§ 245(c)(2), (c)(7) and (c)(8):
• Only available: EB‐1, EB‐2, EB‐3, EB‐4 (religious worker described in Section 101(a)(27)(C) only)
• Was lawfully admitted to the United States as a nonimmigrant
• Has not for an aggregate period of more than 180 days:
o Failed to continuously maintain a lawful status
o Engaged in unauthorized employment; or
o Otherwise violated the terms and conditions of admission
If AOS is not possible, beneficiary will have to return to home country and consular process.
Consular Processing: Applicants who are outside the US or cannot adjust
Applicant will apply for an immigrant visa from the U.S. Embassy or Consulate.
Once the visa is issued, the applaicant may enter the U.S. and receive his or her green card after the entry.
Upon the approval of the immigration petition, the National aaVisa Center (NVC) will notify the applicant and his/her petitioner to pay the immigrant visa fee and to collect documents.
Consular office will schedule the applicant for an interview when the priority date becomes current.
The specific consular processing procedure may differ from Consulate to Consulate.
2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5
EB-1a/b and EB-2 NIW issues
March 15-16, 2018 Page 2 of 8
PRIORITY DATE AND VISA BACKLOG:
Immigrant visas for the employment‐based immigrant preference
categories are numerically limited
Immigrant visas for the employment‐based immigrant preference
categories are numerically limited
State Department (DOS) allocates numbers based on preference category, country of chargeability &
priority date
State Department (DOS) allocates numbers based on preference category, country of chargeability &
priority date
Demand > supply of visas = visa queue (wait
list/backlog)
Demand > supply of visas = visa queue (wait
list/backlog)
Priority Date is used to determine an applicant’s place in the visa queue
Priority Date is used to determine an applicant’s place in the visa queue
The DOS publishes the Visa Bulletin every month as a guide for issuing
visas
The DOS publishes the Visa Bulletin every month as a guide for issuing
visas
Self‐Petition is Available ‐ Immigrant can file the petition by him/herselfSelf‐Petition is Available ‐ Immigrant can file the petition by him/herself
No certified PERM required No certified PERM required
In Most Cases, No or Shorter Visa BacklogIn Most Cases, No or Shorter Visa Backlog
Premium Processing is available for EB‐1APremium Processing is available for EB‐1A
ADVANTAGES OF EB‐1A & EB‐2 NIW:
2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5
EB-1a/b and EB-2 NIW issues
March 15-16, 2018 Page 3 of 8
EB‐1A EXTRAORDINARY ABILITY
Extraordinary Ability in Sciences, Arts, Business, or Athletics – Wide Range of Professions
3 out of 10 listed criteria to prove extraordinary ability:
“Final Merit” test by test established by Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)
Evidence of receipt of lesser nationally or internationally recognized prizes or awards
for excellence
Evidence of receipt of lesser nationally or internationally recognized prizes or awards
for excellence
Evidence of your membership in associations in the field which demand outstanding achievement of
their members
Evidence of your membership in associations in the field which demand outstanding achievement of
their members
Evidence of published material about you in
professional or major trade publications or other major
media
Evidence of published material about you in
professional or major trade publications or other major
media
Evidence that you have been asked to judge the work of others, either individually or
on a panel
Evidence that you have been asked to judge the work of others, either individually or
on a panel
Evidence of your original scientific, scholarly, artistic, athletic, or business‐related
contributions of major significance to the field
Evidence of your original scientific, scholarly, artistic, athletic, or business‐related
contributions of major significance to the field
Evidence of your authorship of scholarly articles in
professional or major trade publications or other major
media
Evidence of your authorship of scholarly articles in
professional or major trade publications or other major
media
Evidence that your work has been displayed at artistic exhibitions or showcases
Evidence that your work has been displayed at artistic exhibitions or showcases
Evidence of your performance of a leading or critical role in distinguished
organizations
Evidence of your performance of a leading or critical role in distinguished
organizations
Evidence that you command a high salary or other significantly high
remuneration in relation to others in the field
Evidence that you command a high salary or other significantly high
remuneration in relation to others in the field
Evidence of your commercial successes in the performing
arts
Evidence of your commercial successes in the performing
arts
EMPLOYMENT‐BASED PETITION: EB‐2
Labor certification is required (also means no self‐petition) except for the National Interest Waiver (“NIW”) category.Labor certification is required (also means no self‐petition) except for the National Interest Waiver (“NIW”) category.
Visa numbers are not readily available for citizens of China‐mainland and India. Visa numbers are not readily available for citizens of China‐mainland and India.
Advanced degree (or equivalent) is necessary, unless one is with exceptional ability. Advanced degree (or equivalent) is necessary, unless one is with exceptional ability.
Exceptional ability means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”Exceptional ability means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5
EB-1a/b and EB-2 NIW issues
March 15-16, 2018 Page 4 of 8
EMPLOYMENT‐BASED PETITION: EB‐2 NIW
Achievement‐based green card option (slightly lower standard than EB‐1A).Achievement‐based green card option (slightly lower standard than EB‐1A).
A Master’s Degree or Exceptional Ability in one’s field is needed. A Master’s Degree or Exceptional Ability in one’s field is needed.
Unfiled ETA 750B still needed for filing Unfiled ETA 750B still needed for filing
New Three‐part test established by Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). New Three‐part test established by Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).
• the proposed endeavor is of substantial intrinsic merit and national importance
• the foreign national is well‐positioned to advance the proposed endeavor
• on balance, it would be beneficial to the U.S. to waive the requirements of a job offer
PHYSICIAN NIW
Criteria: Agree to work full‐time in a clinical practice. For most physician NIW cases, the required period of service is 5 years
Must work in a primary care or be a specialty physician
Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)
Must obtain an Attestation ‐ a statement from a federal agency or a state department of health that has knowledge of your qualifications as a physician and that states your work is in the public interest
A physician agrees to work for a period of time in a designated underserved area
2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5
EB-1a/b and EB-2 NIW issues
March 15-16, 2018 Page 5 of 8
NYSDOT VS. DHANASAR: WHAT IS THE DIFFERENCE?
Three‐Part Test under NYSDOT
Substantial intrinsic merit
Work is “national in scope”
The applicant can benefit the national interest to a “substantially greater degree that would an available U.S. worker having the same minimum qualifications”
Three‐Part Test under Dhanasar
Substantial intrinsic merit and national importance
The foreign national is well‐positioned to advance the proposed endeavor
On balance, it would be beneficial to the U.S. to waive the requirements of a job offer
FILING TIPS:
Importance of Awards Importance of Awards
Letters of Recommendation: What makes a good
letter of recommendation?
Letters of Recommendation: What makes a good
letter of recommendation?
Proof of intent to continue with his/her profession in the U.S.
Proof of intent to continue with his/her profession in the U.S.
For NIW, ETA 750B or ETA 9089?
For NIW, ETA 750B or ETA 9089?
RFE trend RFE trend Green card interview at
the USCIS or the Consualte
Green card interview at the USCIS or the
Consualte O‐1A and EB‐1A/NIWO‐1A and EB‐1A/NIW
2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5
EB-1a/b and EB-2 NIW issues
March 15-16, 2018 Page 6 of 8
HYPO 1:
John is a citizen of Germany
John is a citizen of Germany
Mid‐Level Manager (Director) at a global logistics
company
Mid‐Level Manager (Director) at a global logistics
company
Holds a bachelor’s degree in business administration
Holds a bachelor’s degree in business administration
Over 20 years of experience at
managerial level positions
Over 20 years of experience at
managerial level positions
Manages top 20 client accounts (20 Million + each year) for his employer
Manages top 20 client accounts (20 Million + each year) for his employer
Doubled the revenue
Doubled the revenue
Critical in securing one major client
account
Critical in securing one major client
account No major awards No major awards
HYPO 2:
Mary is a citizen of China Mary is a citizen of China Ph.D. in musicology Ph.D. in musicology Department chair of a major conservatory
Department chair of a major conservatory
Published books, articles and CDs (all in Chinese) Published books, articles and CDs (all in Chinese)
National Awards for research (in China) National Awards for research (in China)
Strong letters of recommendation Strong letters of recommendation
Executive Committee member of a professional
organization for musicians and music
scholars
Executive Committee member of a professional
organization for musicians and music
scholars
2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5
EB-1a/b and EB-2 NIW issues
March 15-16, 2018 Page 7 of 8
QUESTIONS?
THANK
YOU!
2018 NW Regional Immigration Law ConferenceBusiness Track, Session 5
EB-1a/b and EB-2 NIW issues
March 15-16, 2018 Page 8 of 8