Q & A: NIW [National Interest Waiver] green card petitions, legal standards and practical tips

Question: I am a PhD candidate in petroleum engineering (finished my masters in 2009) who works at a supercomputing center. I have about 16 publications including one journal article and 1 book chapter. I am either 1st or 2nd author on these. I have been a reviewer on 6 conferences. My area of research is geologic CO2 sequestration, identifying the candidate reservoirs and studying the long term effects. To a lesser extent, the research is about shale gas (but in development phase) because that’s where the CO2 is going to be stored. I managed to get 6 letters from collaborators, including 2 letters from NSF program directors. I also have a national award and about 40 citations of my work.

My question to you is this: What are my odds of getting an NIW EB2 approved given my qualifications?

Answer:  Hello and thank you for contacting me. Based on the information you have provided, it sounds very promising. Have you filed yet?

I would say your qualifications are good, in that USCIS should be satisfied that your past record of accomplishment will lead to tangible benefits in the US. However, with respect to the field, and whether it should be considered an area of substantial intrinsic merit and national in scope, that is more difficult to say, mainly because you have not provided as much information.

Please find below the standards for the NIW, for your reference. I would also advise that for EB-1 outstanding researcher/extraordinary ability cases and EB-2 NIW cases, presentation techniques play a large part in the process. In other words, you want to make the adjudicators job easier by presenting your evidence in a way that allows them to determine if your case is a winner within the first 5 minutes of review.


The EB-2 NIW I-140 petition should demonstrate the following:

1) a history of past achievement that will lead to tangible benefits in the national interest;

2) that you will continue to work in an area of substantial intrinsic merit;

3) that your application for permanent residence deserves to be placed at the head of the line because your work serves the national interest to a substantially greater degree than others.

The current legal standard for EB-2 NIW cases is derived from a CIS Administrative Appeals Office (AAO) decision, Matter of New York State Dept. of Transportation, Int. Dec. 3363 (Comm. 1998) (“NYSDOT”).

This case established a three pronged test: (1) the self-petitioner must seek employment in an area of work that is of “substantial intrinsic merit;” (2) the self-petitioner must demonstrate that the proposed benefit will be “national in scope;” and (3) the self-petitioner must establish that he will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”

In order to meet the third prong of the NYSDOT test, an applicant must do more than merely work in an area of intrinsic merit that is national in scope, as required under the first two prongs of the NYSDOT test.

The AAO restated this test as whether “[the employer would be] unlikely to locate a qualified worker who can benefit the United States in the same degree.” The applicant must distinguish herself from the hypothetical minimally qualified U.S. worker in one of two ways:

1) by presenting a record of past achievement (e.g., a track record of accomplishment) that would reasonably lead to tangible benefits to the national interest; or

2) by demonstrating that he/she is playing a key or critical role in a project that will yield tangible benefits and is national in scope.

Finally, here is a blog post related to EB-1 cases, which provides additional insight into how USCIS reviews cases for applicants similar to you: http://ryvinimmigrationblog.blogspot.com/2011/0

Best of luck and please do not hesitate to contact me if you need assistance.

Michael Ryvin
michael@ryvinlaw.com

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Live Webinar: Immigration Compliance for Small Business: I-9s Compliance, Fines, Advice & Noting E-Verify’s Limitations

In the current legal environment, you need to understand your responsibilities when hiring new employees and contractors. Mistakes can result in fines and other penalties. Do you know how to comply with I-9s and E-Verify? What are the odds you will be fined and how are those fines calculated? Join this webinar where you will learn:

► How to complete the Form I-9 properly

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► How to bring down or eliminate the possibility of fines before your site is visited.

► Which federal contractors and subcontractors must use E-Verify and the problems that can ensue from its use.

WEBINAR DETAILS:

Date/Time: Wed., March 2, at noon ET

Presenter: Christina Lang Wallace, Attorney at Law, Partner of Ryvin Wallace Group

Duration: 60 minutes

Who Should Attend: Business owners and employees interested in making sure they follow immigration compliance requirements

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TN Scientific Technician case approved for three years in Toronto for Canadian software engineering technician with no post secondary education!

We recently were successful in helping a Florida based platform development company secure the services of a software engineering technician with no post-secondary (high school) education, through the NAFTA TN Scientific Technician/Technologist temporary worker classification.

This is significant because while a scientific technician/technologist is theoretically not required to have post secondary education, in practice, it is not unusual for applicants without a two-year associates degree to be refused by the United States Customs and Border Protection (CBP).

Read more about our case and the NAFTA TN Scientific Technician/Technologist requirements, including a copy of a key government memo, after the jump.


To qualify for TN status under NAFTA as a Scientific Technician/Technologist an applicant must prove two elements:

(a) Theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and

(b) The ability to solve practical problems in any of those disciplines, or the ability to apply principals of any of those disciplines to basic or applied research.

Additionally, the business person in this category must work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics.

Further, government policy memorandum dated in November 2002 provides additional guidance to immigration officers who are evaluating the qualifications of applicants under the TN Scientific Technician/Technologist category.  This memo established five key principles used to evaluate the admissibility. A copy of the memo is embedded below for your reference.

One of these principles addresses the applicant’s qualifications, specifically, how the requisite theoretical knowledge should be acquired.  The memo states the theoretical knowledge should have been acquired through the successful completion of at least two years of training in a relevant educational program; and that such training may be documented by presentation of a diploma, a certificate, or a transcript accompanied by evidence of relevant work experience.

Notably, there is no language in the regulations or the policy memo which requires the applicant to possess formal education. Rather, there is a suggestion in the policy memo that the applicant’s theoretical knowledge should come from at least two years of education.  Unfortunately, as noted above, the more an applicant deviates from two years of educational training, the more resistance he or she is likely to encounter during CBP’s review.

In anticipation of this issue, we helped our client carefully document his more than five years of experience, which included the design, development, troubleshooting and support of multi-platform software systems and applications.  We also armed him with a copy of the memo and a legal brief, to help ensure CBP understood that while two years of education is suggested, it is not required. 

If you have any question about the NAFTA TN Scientific Technician/Technologist category, please don’t hesitate to contact one of the experienced attorneys at Ryvin Wallace Group.

As noted, below please find the “five principals” memo for TN Scientific Technician/Technologists, for your reference:

var docstoc_docid=”72217787″;var docstoc_title=”Williams Five Principals Memo for Scientific Technicians_2002″;var docstoc_urltitle=”Williams Five Principals Memo for Scientific Technicians_2002″;
Williams Five Principals Memo for Scientific Technicians_2002

Q & A: I-130 upgrade after sponsor becomes a US Citizen

Question: I filed an I-130 for my spouse when I had my green card. Two months ago we received a receipt notice with a file number.  My spouse is in the US on an H1B and needs to adjust status.  I just became a US citizen and want to apply I-485 for my spouse. How can I upgrade my I-130? What location should I file the I-485? For concurrent filing or location for just I-485 filing? Should I attach a copy of my citizenship certificate and a copy of I-130 and receipt notice with my I-485? Is that enough or I should call some number to update my I-130 status before I file I-485?

Read our answer after the jump.


Answer: Hello and thank you contacting me. Congratulations on your naturalization! I believe your spouse should file an I-485, with a copy of her I-130 receipt notice (Form I-797) and your naturalization certificate. I would also make an effort to alert USCIS to the nature of your somewhat unique filing. Something like “I-485 filing based on pending I-130 & Upgrade to immediate relative category”. I would mark the FedEx like this, in addition to a brightly colored cover paper. Not the cover letter which lists the enclosed documents, but just a separate bright sheet of paper to alert USCIS. With respect to where to file, since she is filing an I-485, I would probably file here: http://bit.ly/i201Nw. Notably, the FedEx address for I-130 filings looks the same (http://bit.ly/fjcMk6). I noticed the calling talk in some of the forums as well. The comments seem a bit outdated though. Also, I have found that USCIS does not handle anything without a check attached very well. I don’t think calling the customer service number can hurt anything, but it seems to me the I-485 filing is more likely to be effective. Finally, the way you can tell if USCIS has understood and correctly processed her application is if you get the I-485 receipt notice. They won’t accept an I-485 application if the applicant is not eligible to file it.

Best of luck and let me know if you need help with the filing.

Sincerely,

Michael Ryvin
michael@ryvinlaw.com

Q & A: I-140 Portability under AC-21: Same or Similar Job?


Question: I am a July 2007 filer with a Oct 2006 PD. My labor was filed as a Software Developer. Recently I got a job offer in a fortune 500 firm as a technical lead architect.  My labor certification (PERM) application was filed for the position of Electrical Engineer (SOC 17-2071.00).   My new position falls under the Computer Software Engineer (SOC 15-1031). My new employer said that he will not file under AC-21 and they will take appropriate action if I get an RFE. I want to know how strict the same similar job requirement is? Do you feel that taking a Lead Architect job with an Electrical Engineer labor cert would jeopardize my green card ?

Read our Answer after the jump.

Answer: Hello and thank you for your questions. I assume you mean to say that your new employer WILL NOT file notification with USCIS to confirm that you are porting your I-140 pursuant to AC-21; but they WILL respond to a request for evidence, if you get one. Let me know if I am missing something.

You should know that notifying USCIS is not required, so it is common for employers to not file any type of AC-21 notification with USCIS, and simply wait until an RFE is issued to address any concerns about the job. However, in my opinion, it is important to prepare the necessary AC-21 documentation, in anticipation of a possible request for evidence, now. Essentially, a record confirming you are eligible to port, including an analysis of relevant law and your positions.

This brings us to whether or not your positions are same or similar. Based on your explanation, I do have some concerns, since an Electrical Engineer and Software Engineer might NOT be considered same or similar, which could lead to a denial of your AOS.

Notably, you have only provided titles, so I cannot assess whether or not the jobs are same or similar. The only way to make the assessment is to compare the actual duties and responsibilities. If you can obtain the descriptions, I can help you make the comparisons. Please let me know if I can be of further assistance.

Best regards,
Michael Ryvin
Michael@ryvinlaw.com