San Francisco Immigration Lawyer Q & A: Is my Labor Certification (PERM) based Green Card Application location specific?

Question: My I-140 was approved in May 2006, and my I-485 is still pending since July 2007. I have been working with Company A since 2003, and in January 2011 I moved from Indiana where I lived since 2003, to California. I still work for Company A in same position and with same salary. Do I have to move back to Indiana to get my green card or can I stay in California?

Answer: Yes, a labor certification (PERM) application IS location specific.  But, based on your fact pattern, it sounds like you are eligible to port your I-140 to the California position under AC-21 section 106 (c). If so, you are not required to return to Indiana.

This I-140 portability provision allows an approved or pending I-140 immigration petition filed on behalf of a foreign national [under EB-1-2, EB-1-3; EB-2; EB-3] categories to remain valid if (1) the foreign national’s adjustment of status application has been filed and remained un-adjudicated for 180 days or more; and (2) the foreign national changes job or employers and the new job is in the same or similar occupational classification.

Further, there is a December 27, 2005 Aytes memo which indicates that an I-140 beneficiary may benefit from I-140 portability when seeking employment in a geographic area [whether city, country or state] different from the one in which the employment described in the relevant labor certification [PERM] application or immigrant petition was to take place.

Alternatively, if you determine you are not eligible to port under AC-21, then your employer may either confirm their intention to employ you in Indiana upon issuance of the green card; or start a new California based PERM application on your behalf.

Please let me know if I may be of further assistance.

Michael Ryvin, Partner
Ryvin Wallace Group

AILA Liaison Practice Pointer: VSC: Preferred Order of Documents for Submission of Form I-129 Petitions

The Vermont Service Center has confirmed to AILA Liaison that its preferred order of Form I-129 petition and supporting documents at the time of submission is as follows:

1. Fee(s) – staple to first page
2. I-907 Request for Premium Processing Service (if filing as Premium Processing)
3. Form G-28
4. Form I-129 petition pages 1- 6 (and 7 if submitted)
5. Classification or Free Trade Supplement page
6. H-1B Data Collection and Filing Fee Exemption Supplement, if applicable
7. Form I-129 Addendums/Attachments
8. Labor Condition Application or application for temporary labor certification, if applicable
9. SEVIS form, if applicable
10. I-94 copies, passport pages, I-797 approval notices
11. Attorney letter
12. Company letter
13. Documents related to the beneficiary’s qualifications
14. Other supporting documents
15. I-129 Duplicate Copy and supporting documentation

By submitting the documents in the preferred order, practitioners may help facilitate faster administrative processing of cases through the VSC intake process.

USCIS Q & A re: National Interest Waivers for Entrepreneurs

Link to USCIS Q & A covering National Interest Waivers for Entrepreneurs

Here is the relevant text:


Q11. Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?
A11. Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.

Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A13. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:

“The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.”

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.

Q15. What are the three prongs laid out in the NYSDOT decision?

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.

2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.

3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Michael Ryvin, Partner
Ryvin Wallace Group

USCIS Director Alejandro Mayorkas Blog Post: Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth

Below please find a link to a blog post from the USCIS Director Alejandro Mayorkas, and some relevant excerpts, which discuss this current administration’s efforts to attract and retain high-skill entrepreneurs.

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced today [8/2/2011] that it will:

• Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

Expand the Premium Processing Service to immigrant petitions for multinational executives and managers;

• Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

• Implement fundamental enhancements to streamline the EB-5 process based directly on stakeholder feedback;

• Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and startup companies.

Of course, these efforts are more than welcome. But, I am approaching the same with a healthy degree of skepticism, considering USCIS continues to make questionable [am being polite here] decisions on visa matters involving highly-skilled foreign nationals with legitimate U.S. job offers. 

Michael Ryvin, Partner
Ryvin Wallace Group