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EB-1b Visa For Outstanding Professors and Researchers

Requirements for Outstanding Professors and Researchers
Any United States employer desiring and intending to employ a professor or researcher who is outstanding in an academic field under section 203(b)(1)(B) of the Immigration and Nationality Act may file an I-140 visa petition for such classification.

Initial evidence. A petition for an outstanding professor or researcher must be accompanied by: Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following: (A) Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field; (B) Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members; (C) Published material in professional publications written by others about the alien’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation; (D) Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field; (E) Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or (F) Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

Family-Based Immigration

1. How Do I Become A Permanent Resident Through Marrying a U.S. Citizen

There are two ways to become a permanent resident through marriage to a United States Citizen (USC): you can enter the U.S. by asking the USC fiancé(e) to apply for K-1 visa. Then getting married and applying I-485 to adjust your status to permanent resident. Or to get married first, then ask the USC spouse to apply “Petition for Alien Relative” and then “Application to Register Permanent Residence or Adjust Status” if the alien spouse is in the U.S. or go through consulate processing after “Petition for Alien Relative” is approved.

K-1/K-2 VISA

K-1/K-2 visas are issued to U.S. citizens’ fiancé(e)s and their children who are outside the U.S. and would like to join the USC here. After the K-1 petition is approved, the fiancé(e)s and their children must obtain visas issued at a U.S. Embassy or consulate abroad. The marriage must take place within 90 days of the fiancé(e)s entry into the U.S. If the marriage does not take place within 90 days or the fiancé(e) marries someone else, the fiancé(e)s and their children will be required to leave the U.S. A fiancé(e) may not obtain an extension of the 90-day original nonimmigrant admission.

If the fiancé(e) intends to live and work permanently in the U.S., he/she should apply to become a permanent resident after the marriage. Please note, the fiancé(e) will initially receive conditional permanent resident status for two years, permanent resident status will be granted after filing and being reviewed by USCIS that marriage is bona fide.

Conditional Permanent Resident Status

No matter which way you go, if the marriage lasts no more than two years before the petition, the alien spouse will get conditional permanent resident status first. The conditional permanent resident status has the same effect with permanent resident status except there is time limit–will be effective for two years. You can apply for “Petition to Remove the Conditions of Residence” within 90-day window period before your second anniversary of getting conditional permanent resident status to get permanent resident status.

Removal of Conditions on Permanent Residence

a.If you are still married to the USC who sponsored you to get conditional permanent resident status, you and your spouse should file jointly to remove the condition.

b.You may apply for a waiver of the joint filing requirement, if: 1) you entered the marriage in good faith, but your spouse subsequently died; 2) you entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment; 3) you entered the marriage in good faith and have remained married, but have been battered or subjected to extreme cruelty by your USC spouse; 4) the termination of your status and removal would result in extreme hardship.

2. A U.S. Citizen Can Also File Immigrant Visa Petition for Parents, Children, Adult Sons and Daughters and Siblings

3. A Permanent Resident Can File Immigrant Visa Petition for Spouse, Children and Unmarried Sons and Daughters

Registered Nurses

Schedule A immigrant petitions for nurses require an employer sponsor, an RN certificate and a Visa Screen certificate.

VisaScreen: first regulated in Section 343 of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), now codified at §212(a)(5)(C) of the Immigration and Nationality Act, the law requires that certain healthcare professionals educated outside the U.S. satisfy a screening program prior to receiving a permanent occupational visa (permanent resident alien visa). The screening includes an assessment of an applicant’s foreign education to ensure that it is comparable to that of a U.S. graduate in the same profession; verification that the applicant’s licenses are valid and unencumbered; determination of English language proficiency; and in the case of nursing applicants, verification that the nurse has either earned a CGFNS (Commission on Graduates of Foreign Nursing Schools) Certificate or passed the NCLEX-RN® examination. Applicants who successfully complete VisaScreen will receive a VisaScreen certificate.

While waiting for permanent resident status, an alien needs a valid non-immigrant status (including, but not limited to, H-1C, H-1B, TN) to stay in the U.S.

EB-5 Investment Visa

EB-5 Investment visa was created by Congress in 1990 for use by an entrepreneur to petition the U.S. Citizenship and Immigration Services (USCIS) for status as an immigrant to the U.S. pursuant to section 203(b)(5) of the Immigration and Nationality Act, as amended. The basic amount required to invest is $1 million. Congress created a pilot program in 1993, reducing the amount to no less than $500,000 in “designated regional centers.”

1.Qualifications

You may file this petition for yourself if you have established a new commercial enterprise:

In which you will engage in a managerial or policy-making capacity, and
In which you have invested or are actively in the process of investing the amount required [unless adjusted downward for targeted areas or upward for areas of high employment, the amount of investment shall be $1,000,000 (one million dollars)] for the area in which the enterprise is located, and
Which will benefit the U.S. economy, and
Which will create full-time employment in the U.S. for at least ten U.S. citizens, permanent residents, or other immigrants authorized to be employed, other than yourself, your spouse, your sons or daughters, or any nonimmigrant aliens.
The establishment of a new commercial enterprise may include:

Creation of a new business;
The purchase of an existing business with simultaneous or subsequent restructuring or reorganization resulting in a new commercial enterprise;
The expansion of an existing business through investment of the amount required, so that a substantial change (at least 40 percent) in either the net worth, number of employees, or both, results; or
Investment in a USCIS designated Regional Center; or
Investment in a troubled business (A troubled business is one that has been in existence for at least two years, has incurred a net loss for accounting purposes during the 12 or 24-month period before the petition was filed, and the loss for such period is at least equal to 20 percent of the business’s net worth before the loss. To establish investment in a troubled business, the petitioner must show that the number of existing employees will be maintained at no less than the pre-investment level for at least two years.)
2. Removing the Conditions

Assuming the INS approves an investor’s visa petition, he or she becomes a conditional resident for two years. Prior to the second anniversary, the immigrant investor must file a petition to remove the conditions, accompanied by evidence showing that a commercial enterprise was established, that the alien invested or was in the process of investing the required capital, and that the alien created or will create 10 full-time jobs.

Perm -Labor Certification

Immigrant Visa Petition Through Labor Certification
Labor certification is the first step used by most aliens through employment-base to get permanent residency status. Labor certification is intended to assure that the employer is not seeking to employ a foreign national permanently when qualified U.S. workers are willing and available to fill the position, and that employer has not offered wages or working conditions to the foreign national that will adversely affect the wages or working conditions of the U.S. workers. If the labor certification procedure locates any U.S. workers who meet employer’s minimum requirements (education, experience, training, etc.) for the position, the alien worker will not be permitted to obtain his permanent residence.

The U.S. Department of Labor requires the employer to test the local job market and approach the process as if the employer is willing to hire an American worker if one is qualified and available.

The employer must obtain a prevailing wage determination from the state workforce agency (SWA); placing a job order with SWA; placing job ads in two Sunday issues of a major newspaper in the region, or if the position is a professional one, to place one ad in Sunday paper and another in a professional journal; posting an internal job notice at a public place on the employer’s business premises for consecutive ten business days; and conducting any three of the following recruitment steps if the position is a professional job: (1) participating in a job fair; (2) posting job opening on the employer’s website; (3) advertising on a job search web site other than the employer’s; (4) conduct on-campus recruiting; (5) recruiting / advertising through trade or professional organizations; (6) recruiting through private employment firms; (7) recruiting through an employee referral program (if it includes identifiable incentives); (8) posting notice of job opening at a college campus placement office (if the job requires a degree but not any experience); (9) advertising in local and ethnic newspapers (to the extent they are appropriate for the job opportunity); and (10) placing radio or TV advertisements.

The employer must also evaluate the resumes, if any, received from applicants (conducting interviews when necessary) and determining if an applicant is qualified according to the job duties and other requirements.

L-1 Nonimmigrant Visa

The L nonimmigrant visa category is one of the most useful tools available to international companies needing to bring foreign employees to the U.S. Under section 101(a)(15)(L) of the Immigration and Naturalization Act, an alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity (L-1A), or in a position requiring specialized knowledge (L-1B). An alien transferred to the United States under this nonimmigrant classification is referred to as an intracompany transferee and the organization which seeks the classification of an alien as an intracompany transferee is referred to as the petitioner. The USCIS has responsibility for determining whether the alien is eligible for admission and whether the petitioner is a qualifying organization. These regulations set forth the standards applicable to these classifications. They also set forth procedures for admission of intracompany transferees and appeal of adverse decisions. Certain petitioners seeking the classification of aliens as intracompany transferees may file blanket petitions with the USCIS. Under the blanket petition process, the USCIS is responsible for determining whether the petitioner and its parent, branches, affiliates, or subsidiaries specified are qualifying organizations.

L-1A holder can apply permanent residency status directly under multi-national executive and manager category.

H-1B NONIMMIGRANT VISA

Definition. H-1B specialty worker visa petitions are filed by U.S. employers with the U.S. Citizenship & Immigration Services (USCIS) for professionals (with bachelor or higher degree in specific occupational specialty) to perform services in that specialty occupation.

An H-1B worker must satisfy the specialty occupation defined by 8 CFR 214.2:
Specialty Occupation means an occupation that requires:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Term. Initially 3 years; extensions can be granted for up to a total of 6 years, H-1B visa holders are eligible to apply for a one-year extension of H-1B status pursuant to the American Competitiveness in the 21st Century Act of 2000 (Pub.L.106-313). Under this legislation, as long as 365 days have elapsed since the filing of a labor certification application or an immigrant visa petition, H-1B status can be extended in one-year increments beyond the six-year limit until a final decision is made on the pending application or petition. Pursuant to the Section 104(c) of American Competitiveness in the 21st Century Act of 2000, aliens are eligible to have their H-1B status extended for a period of up to three years beyond the six-year limit provided an alien is the beneficiary of an approved I-140 petition and there is immigration visa backlog which prevent the alien from adjustment of his status.

Full Time/Part Time. There is no requirement that the position be full time. H-1B visa is available for part-time employment. Concurrent employment of the same specialty worker by multiple employers is also allowed.

NIW-National Interest Waiver

Requirements for National Interest Waiver

Any United States employer may file a petition on Form I-140 for classification of an alien under section 203(b)(2) of the Immigration and Nationality Act as an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is claiming exceptional ability in the sciences, arts, or business and is seeking an exemption from the requirement of a job offer in the United States pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone in the alien’s behalf, may be the petitioner.

(1) National interest. The Administrative Appeals Unit decisions have defined several factors to determine whether the alien’s admission as an employment-based second preference immigrant would prospectively benefit the national interest, including but not limited to, the alien’s individual contributions toward improving the U.S. economy, wages or working conditions, education, health care, housing, the environment, and the accommodation of the needs of a U.S. governmental agency.

(2) Initial evidence. The petition must be accompanied by documentation showing that the alien is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the arts, or business.
To show that the alien is exempted the requirement of a job offer, and thus of a labor certification because of the national interest, Matter of New York State Dept. of Transportation has enumerated a three-prong standard that the petitioner must meet in order to qualify for a national interest waiver. These three standards include: (1) whether the alien is seeking employment in an area of “substantial intrinsic merit”; (2) whether the proposed benefit will be “national in scope”, rather than solely limited to a particular region; and (3) whether the alien “will serve that national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”

(3) If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

This is only a legal opinion and not legal advice or service. Please contact attorney for legal advice or service.

EB-1a Visa for Aliens of Extraordinary Ability

Requirements for Aliens with Extraordinary Ability
An alien, or any person on behalf of the alien, may file an I–140 visa petition for classification under section 203(b)(1)(A) of the Immigration and Nationality Act as an alien of extraordinary ability in the sciences, arts, education, business, or athletics.

Initial evidence. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award), or at least three of the following:
(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) Documentation of the alien’s membership in associations in the field for which classification is sought, which requires outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought;
(iv) Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Contact Info

Law Office of Jessica Y. Meng
Silicon Valley Address:
4677 Old Ironsides Dr. Suite 350
Santa Clara, CA 95054
Tel: 408-986-9202
Fax: 408-986-9206
or Email Us for quicker response.


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