Not Need to File Form I-485 Supplement J for Approved EB-1A and NIW Petitioner

Not Need to File Form I-485 Supplement J for Approved EB-1A and NIW Petitioner Question, My Form I-140 petition in the EB-1A category has been approved, and I will file Form I-485 application to get my Green Card, do I need to file Form I-485 supplement J? Answer, Unless you are filing Form I-485 together with Form I-140 that names you as the principal beneficiary, you must file Supplement J at the time you file your Form I-485 to confirm that the job offered to you in the underlying Form I-140 is still bona fide and available to you. USCIS may request that you file Supplement J again prior to final processing of your Form I-485. If the alien applicant is filing Form I-485 application based on an approved or pending Form I-140 petition, the Form I-485 supplement J is generally required. If the alien applicant having a pending I-485 application qualifies for AC-21 job portability, a supplement J must be submitted to the USCIS to request that the previously filed I-485 adjustment of status application be approved, on the basis of a change of employers or a new job with the same employer, if the new employment is considered a “a same or similar” position. Also, the supplement J may be filed proactively by the alien applicant at any time. Otherwise, prior to approving the I-485 application, the USCIS may issue a Request For Evidence (RFE) or Notice of Intent to Deny (NOID) to request an updated supplement J. Supplement J must be filled out in its entirety, and must be signed in the original. The supplement requests information about the sponsoring employer and the proposed job. There is no filing fee for submitting a supplement J. But the supplement J is not required in the following situations: 1) Form I-485 supplement J is not required, if the Form I-140 petition is being filed concurrently with the Form I-485 2) Form I-485 supplement J is not required, if the I-485 is being filed based on a National Interest Waiver (NIW) I-140 application; 3) Form I-485 supplement J is not required, if the I-485 is being filed based on a EB1 Extraordinary Ability (EB-1A) I-140 application. Individuals seeking or granted a EB2 National Interest Waiver (EB2 NIW) of the job offer requirement, and individuals seeking or granted classification as an alien of EB1 Extraordinary Ability (EB-1A), do not need to file Supplement J. Because these employment-based immigrant visa categories are not tied to a specific job offer. Also, individuals seeking or granted classification as an alien of EB1 Extraordinary Ability or seeking or granted a National Interest Waiver of the job offer requirement do not have to file Supplement J, when filing Form I-485 or to request job portability under AC-21 job portability. http://www.greencardapply.com/question/question17/I485_Supplement_J_EB1A_022817.htm http://www.greencardapply.com

Do I Need to File Form I-485 Supplement J also?

Do I Need to File Form I-485 Supplement J also? Question, I will file Form I-485 application for my status adjustment after the Form I-140 approval, do I need to file Form I-485 supplement J also? Answer, U.S. Citizenship and Immigration Services (USCIS) has released Form I-485 supplement J, a form used in conjunction with Form I-485 application to adjust status. The Form I-485 supplement J is used to provide confirmation of job offer from U.S. employer, and to notify the USCIS in cases where the job is ported to a new employer or a new job. Form I-485 supplement J provides a standardized way of verification that a job offer continues to exist, or of notifying the USCIS of a new job offer. Although this does not make any substantive changes to the requirements to qualify for an employment-based Green Card application, it is still important to understand the requirements for when this supplement must be submitted. The Form I-485 supplement J should be included with Form I-485 application submission. The supplement J is used for one of the two purposes: 1) Confirm that the job offered to you in Form I-140 remains a bona fide job offer that you intend to accept once your Form I-485 is approved; or 2) Request job portability under AC-21 job portability to a new, full-time, permanent job offer that you intend to accept once your Form I-485 is approved. This new job offer must be in the same or a similar occupational classification as the job offered to you in Form I-140 that is the basis of your Form I-485. In adjudicating Supplement J, U.S. Citizenship and Immigration Services (USCIS) does not make a determination whether you have current work authorization with an employer. The basis for adjustment of status to lawful permanent resident under a valid Form I-140 is not actual (current) employment. Rather, the basis is prospective employment. Therefore, the adjudication of Supplement J, for applicants requesting job portability under AC-21 job portability, is primarily limited to a determination of whether you have a bona fide job offer from a U.S. employer that is in the same or a similar occupational classification as the position for which the underlying Form I-140 was filed and approved. Individuals seeking or granted a EB2 National Interest Waiver (EB2 NIW) of the job offer requirement, and individuals seeking or granted classification as an alien of EB1 Extraordinary Ability (EB-1A), do not need to file Supplement J. Because these employment-based immigrant visa categories are not tied to a specific job offer. Also, individuals seeking or granted classification as an alien of EB1 Extraordinary Ability or seeking or granted a National Interest Waiver of the job offer requirement do not have to file Supplement J, when filing Form I-485 or to request job portability under AC-21 job portability. http://www.greencardapply.com/question/question17/I485_Supplement_J_022717.htm http://www.greencardapply.com

Will I Be Eligible for Form I-485 Application for Adjustment of Status?

Will I Be Eligible for Form I-485 Application for Adjustment of Status? Question, I had a H-1B visa vefore. I have accrued more than 2 months of unlawful stay in U.S., will I be eligible for Form I-485 application for adjustment of status? What are the penalties for accruing unlawful stay? Answer, If you are currently in United States unlawfully, then it is unlikely you are qualify to file USCIS Form I-485 application for adjustment of status inside U.S. The Form I-485 application is for people who has valid visa or status in the United States. If you came to U.S. on a temporary visa, such as a tourist visa, H-1B or L1 visa, F-1 visa, J1 exchange visa, or other visa categories, you are required to either leave the U.S. before your authorized stay expires, or successfully apply for an extension of your stay. You can find the date that you are expected to leave U.S. on the I-94 card that the U.S. border official placed in your passport when you entered U.S. If you apply for a visa or status renewal, you should make sure to submit the renewal application, such as Form I-539 application, to U.S. Citizenship and Immigration Services (USCIS) before the date shown on your I-94 card. Once you have submitted your renewal application, you can lawfully stay in the United States while awaiting a decision. If you become eligible for Green Card application for U.S. permanent residence while you are on a nonimmigrant visa, you are then able to submit Form I-485 application for adjustment of stats before your visa expires, and receive a Green Card. However, if your visa runs out before you submit your Form I-485 application for adjustment of status, you are considered to be in the United States unlawfully, and you may not be apply for adjustment of status inside United States. The U.S. immigration law has created various penalties for people who stay in U.S. unlawfully, such as not ineligible to apply for a Green Card from within the United States. But you may be able to go to a U.S. consulate in your home country and complete your Green Card application process there - referred to as the "consular processing" procedure. But there are other penalties for unlawful stay in Unoted States. If you have spent more than 180 days in the United States unlawfully, and then leave U.S., such as for an immigrant visa/green card interview, you will be required to spend three years outside the United States before returning. If your unlawful stay was for one year or more, than you face a ten-year bar on returning. http://www.greencardapply.com/question/question17/I485_Application_Eligible_022017.htm http://www.greencardapply.com

The Status Extension and Employment after a H-1B Petition for F-1 Student

The Status Extension and Employment after a H-1B Petition for F-1 Student Question, I am a beneficiary of an H-1B petition filed by an U.S. employer, and I am now in my 60-day grace period following the end of my OPT employment authorization. May I benefit from an automatic status extension? If yes, would I be able to continue employment? or will it just extend my grace period until the October 1 employment start date? Answer, The H-1B petition requesting for change of status has to be timely filed, which is defined as filing before your current nonimmigrant status expires. In addition, the duration of status while on OPT is defined as including the 60-day grace period. Furthermore, the USCIS rule also states that any employment authorization is extended if an H-1B petition is timely filed. Based on USCIS rule, if an H-1B petition with change of status is timely filed before your current F-1 status expires, then you may be able to take advantage of both the automatic extension of status and the automatic extension of employment authorization. http://www.greencardapply.com/question/question17/F1_Grace_Period_021917.htm http://www.greencardapply.com

The Dhanasar Decision's Impacts on National Interest Waiver Application for Entrepreneurs

The Dhanasar Decision's Impacts on National Interest Waiver Application for Entrepreneurs Question, What are the Dhanasar case decision's impacts on the EB2 National Interest Waiver Application for foreign entrepreneurs? Answer, The Dhanasar case decision opens the NIW category to entrepreneurs. The decision reviews the history of NIWs and what did and did not work in the past. This decision will make NIW green cards more accessible in general, and specifically for entrepreneurs. Here are the few aspects of the new decision: 1) The case allows using the person’s degrees and experience. This benefits highly educated entrepreneurs. 2) The case allows teaching as evidence. So an entrepreneur who also teaches in his or her field will now get a boost in the NIW category. 3) The benefit to the U.S. interest can be local, such as helping to create jobs in a depressed area or creating a specialized local product. Entrepreneurs can argue the impact of their work on the economy, starting regionally, and then adding national supply chain implications if applicable. 4) Dhanasar decision specifically notes that entrepreneurial work can lead to an NIW petition approval. This has been on the USCIS website for several years, but now it is even clearer. The decision notes that “evidence that the endeavor has significant potential to employ U.S. workers, or has other substantial positive economic effects may well be understood to have national importance.” 5) The decision also notes that the entrepreneurial venture does not need to succeed: “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed.” The business just needs to be “well positioned to advance the proposed endeavor.” This stresses the importance of a high quality business plan for entrepreneur's NIW petitions. 6) The decision requires an NIW applicant to show that it would be “impractical” to go through the normal labor certification process. The labor certification is the most common form of employer-sponsored Green Card application. But for entrepreneurs, it can be difficult because labor certification requires a full time job offer at a competitive salary, and evidence that the company has the ability to pay that salary. As always, NIW immigration category is a chance for creativity in showing a foreign national’s talents. http://www.greencardapply.com/question/question17/NIW_Entrepreneurs_020717.htm http://www.greencardapply.com

President Trump's Immigration Executive Orders and H1B Program

President Trump's Immigration Executive Orders and H1B Program Question, Will the President Trump's immigration executive orders impact the H1B program and H1B workers? Answer, President Trump has signed several immigration related executive orders. Another possible proposed order, entitled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” may include several provisions related to the employment-based immigration system. The unconfirmed draft version of a new executive order would impact on the H1B visa program, the executive order instructs the Secretary of Homeland Security to: “in consultation with the Secretaries of State and Labor restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs.” “consider ways to make the process for allocating H1B visas more efficient and ensure that beneficiaries of the program are the best and the brightest.” "provide recommendations for making U.S. immigration policy better serve the national interest; and to recommend changes to the immigrations [sic] laws to move towards a merit-based system.” Among other provisions, it would require that rather than H-1B visa being awarded in lotteries, the U.S. government would be required to prioritize the top foreign students who have studied in the U.S. These would include advanced degree holders, those earning high wage, and those with valuable skills. Also, the OPT program gives foreign graduates in fields like science, technology, engineering or math the right to find jobs in the U.S. for up to 36 months, depending on their degree subject. Mr. Trump could roll the time limit back to the original 12 months, the threshold until it was expanded under President George W. Bush in 2008, and tighten the eligible fields of study. These instructions are vague, and they may impact H1B program. It may result in direct action against H1B program, but it is possible that this order will never be signed. http://www.greencardapply.com/question/question17/H1B_Executive_Order_020617.htm http://www.greencardapply.com

How to Meet the 3 Prong Requirements of Matter of Dhanasar for EB2 NIW Petitions

How to Meet the 3 Prong Requirements of Matter of Dhanasar for EB2 NIW Petitions Question, Please provide a guidance for how to meet the requirements of the 3 tests or prongs of the Matter of Dhanasar case, for EB2 National Interest Waiver petition? Answer, One of the most productive, often efficient ways to U.S. permanent residence, is through a National Interest Waiver (EB2 NIW), under which a foreign national can receive U.S. permanent residence by showing that his or her employment will serve to the U.S. national benefits. There are two immense advantages to the EB2 NIW immigration category: 1) a foreign national can self-petition for U.S. permanent residence, rather than having to be sponsored by an U.S. employer; 2) the NIW petition submission is made directly to USCIS (U.S. Citizenship and Immigration Services), thereby avoiding entirely the recruitment and advertising requirements of the labor certification application process through the Department of Labor. However, over years, despite the advantages of the National Interest Waiver petition, USCIS immigration examiners have operated under somewhat vague guidance of precedential NYSDOT case, on the adjudication standards for National Interest Waiver petitions. The precedential EB2 National Interest Waiver case of Matter of Dhanasar (AAO, December 2016) provides a more flexible analysis that may benefit many petitioners. For the case of Matter of Dhanasar, regarding the first prong of showing "substantial merit and national importance", the USCIS Administrative Appeals Office (AAO) noted that the alien beneficiary’s merit may be shown in the fields of business, entrepreneurialism, science, technology, health, culture or education. It held that the petitioner is not required to show that the alien beneficiary has the potential to create a substantial impact, since it acknowledged that pure science and research may not translate into economic benefits for United States. Regarding whether the proposed endeavor has national significance, the AAO focused on potential prospective impact. It clearly stated that this impact is not to be evaluated solely geographically, but on a broader scale. Regarding the second prong of the Matter of Dhanasar case, in determining "whether the foreign national is well positioned to advance the proposed endeavor", the following factors may include, but are not limited to: the individual’s education, skills, knowledge, record of success in similar areas; a plan for the future; progress made in achieving the proposed endeavor; the interest of other related parties, such as users, customers, or investors. The AAO noted that the petitioners are not required to demonstrate that they are more likely than not to succeed in their fields. Regarding the third prong of the Matter of Dhanasar case, the AAO listed the following factors that may be considered in showing that "on balance it benefits the U.S. to waive the requirements of a job offer and labor certification": in light of the foreign national’s background; whether it would be impractical for the foreign national to obtain a job offer or labor certification on the foreign national’s behalf; whether it would still benefit the U.S. even if other qualified U.S. workers are available; and whether U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. It should also be emphasized that the AAO eliminated the requirement of comparing the foreign national to other U.S. workers in the same field, and stressed that the new test was more flexible, so that more foreign nationals may satisfy the requirements of the EB2 National Interest Waiver. The third prong is actually a new prong, unlike the third prong of NYSDOT case, this third prong does not require a showing of harm to U.S. national interest or a comparison against U.S. workers in the petitioner’s field. The NYSDOT case’s previous third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. This more flexible third test which can be met in a range of ways is meant to apply to a greater variety of individuals. However, the factors to be evaluated regarding this prong requiring that on balance, it benefits the U.S. to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification, and whether the U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. That is where excellent advocacy skills will continue to play a critical role in obtaining an approved EB2 National Interest Waiver petition. http://www.greencardapply.com/question/question17/NIW_Matter_Dhanasar2_012417.htm http://www.greencardapply.com

What is the New Precedential National Interest Waiver Decision Released by AAO?

What is the New Precedential National Interest Waiver Decision Released by AAO? Question, What is the new precedential National Interest Waiver decision released by AAO, and the case of Matter of Dhanasar? Answer, In Matter of Dhanasar that USCIS' Administrative Appeals Office (AAO) released on December 27, 2016, AAO created a precedential new test for a EB2 National Interest Waiver petition (EB2 NIW) in sustaining the appeal, and approved the national interest waiver petition. For an EB2 National Interest Waiver petition, USCIS may grant a national interest waiver of the labor certification, which allows for self-petitioning by the foreign national, if the petitioner demonstrates that the alien is a member of the profession holding an advanced degree or equivalent, or because of exceptional ability in the arts, sciences or business, and will substantially contribute to the U.S. economy, culture, educational interests or welfare. The foreign national’s services must be in the sciences, arts, professions, or business. In the landmark case of Matter of New York State Department of Transportation (NYSDOT). USCIS established a framework for evaluating national interest waiver petitions. This EB2 NIW petition case required: 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. In Matter of Dhanasar, the AAO held that the NYSDOT analysis caused much confusion, and had a tendency to lead to unnecessary subject evaluation. AAO held that it was vacating NYSDOT criteria, and adopting a new and clearer framework for adjudicating EB2 National Interest Waiver petitions, which is stated as: Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence: 1) the foreign national’s proposed endeavor has both substantial merit and national importance; 2) the foreign national is well positioned to advance the proposed endeavor; and 3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion. In the underlying case of Matter of Dhanasar, the AAO noted that the petitioner: holds two master’s degrees and a Ph.D. in fields related to his area of developing air and space propulsion systems; is serving as a postdoctoral research associate and developed novel models; provided evidence of his publications and other published materials citing to his work; evidence of his membership in professional associations; documentation regarding his teaching activities; letters of recommendation from experts in his field. In finding that the foreign national petition satisfied all 3 prongs of the new test, it also noted his funding from national science agencies. http://www.greencardapply.com/question/question17/NIW_Matter_Dhanasar1_012317.htm http://www.greencardapply.com

The Battered Spouse Waivers for Conditional Permanent Residents

The Battered Spouse Waivers for Conditional Permanent Residents Question: I obtained conditional permanent resident status based upon a marriage with a U.S. citizen spouse. Can I apply for the removal of conditions by myself based on the cruelty by a U.S. citizen spouse? Answer: Conditional permanent residents are spouses of U.S. citizens who obtain permanent resident status based upon a marriage of less than two years at the time of approval. These individuals must file to remove the conditions, or the status will expire after two years. The removal of conditions must be filed jointly - that is, it must be signed by both spouses. There is a waiver of the joint filing requirement if the conditional permanent resident spouse has been subjected to battery or extreme cruelty by a U.S. citizen spouse. If approved, the victim may have her/his conditions removed on permanent residence, and thus will hold permanent status, without the help of the abusive spouse. http://www.greencardfamily.com/question/question2017/Waivers_Conditional_Resident_022017.htm http://www.greencardfamily.com

The Following-To-Join Benefit for a Permanent Resident's Spouse

The Following-To-Join Benefit for a Permanent Resident's Spouse Question: I recently got my family-based I-485 application approval and the Green Card. Now, I want to bring my wife to United States. We married a few years ago before I come to the United States. Please let me how would I do this, Thank you very much. Answer: Since the spousal relationship have existed before your admission to the United States, your wife may qualify for the following-to-join benefit for a permanent resident's spouse. You should file Form I-824 at the USCIS office that took the I-485 approval on your case. The documents you must file with the USCIS include a copy of the I-797, Notice of Action, for your original I-485 application. If your I-824 application is approved, USCIS will notify a U.S. consulate in your wife's country that you are a U.S. lawful permanent resident, so that your wife can apply for a following-to-join immigrant visa. Your wife must then contact the local U.S. consulate to complete the visa processing. http://www.greencardfamily.com/question/question2017/Spouse_Following_Join_021917.htm http://www.greencardfamily.com