The report highlighted that many employers and potential applicants have complained about their inability to truly understand the requirements of [...]]]> On December 29, 2011, the DHS Ombudsman issued a report highlighting the inadequacies of the current extraordinary abilities visa and outstanding researcher/professor visa adjudication process.  Additionally, the report recommended numerous improvements to the adjudication process.

The report highlighted that many employers and potential applicants have complained about their inability to truly understand the requirements of the visas because of the subjectivity associated with the current adjudication process.  The Ombudsman states:

Our nation’s immigration laws recognize the importance of attracting individuals of extraordinary ability from around the world to the United States to continue their work in the arts, athletics, business, education, healthcare, and sciences. USCIS issued policy guidance which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to Form I-140 employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals.

The Office of the Citizenship and Immigration Services Ombudsman met with stakeholders to discuss their concerns, reviewed filings and adjudications, examined the applicable law, engaged with USCIS operations and headquarters personnel. Stakeholders report that petitions adjudicated under this I-140 policy memo have resulted in decisions that are unfair, opaque, and inconsistent. USCIS Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analysis of I-140 petitions but instead changed when ISOs made a final merits determination. Based on its findings, the Ombudsman’s Office makes these recommendations to improve fairness, consistency, and transparency in adjudications of extraordinary ability employment-based petitions.

Additionally, the Ombudsman suggested improvements to the EB 1-1 visa and EB 1-2 visa applications by:

1. Conduct formal rulemaking to clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulations; and
2. In the interim, provide public guidance on the application of a final merits determination; and
3. In the interim, provide ISOs with additional guidance and training on the proper application of preponderance of the evidence standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions

Lets hope that the USCIS listens to the Ombudsman’s recommendations and improves the adjudication of the U.S.’s most appealing immigration visa.

This holds especially true for the best and brightest immigrants - including those applying through the extraordinary abilities visa and the outstanding professors and researchers visa.  [...]]]> Each year, the Department of Homeland Security provides statistics from the previous year.  These statistics provide great insight into immigration trends – especially when compared to previous years’ statistics.

This holds especially true for the best and brightest immigrants - including those applying through the extraordinary abilities visa and the outstanding professors and researchers visa.  The 2010 statistics show that EB 1-3 applicants (Multinational executives and managers) continue to be the largest subsection within the first priority worker section.  Additionally, the statistics highlight that most EB1 visa applicants are already in the United States.

Employment-based Visas -First  Priority Workers

Given the general lack of  action towards legislative [...]]]> New York Immigration attorney Chris Gafner’s most recent article, “How USCIS Can Help the United States Win the Global Competition for the Best and Brightest” was recently included as part of the National Foundation for American Policy’s legal brief, Reforming America’s Regulations and Policies on Employment-Based Immigration.

Given the general lack of  action towards legislative immigration reform, the legal brief emphasis ways the immigration agencies can improve the immigration system through regulation and internal policy tweaks.

To read the entire legal brief, visit the NFAP’s website.

For example, statistics show that Requests for Further Evidence [...]]]> The Immigration Agency (USCIS) in the United States has released its data on EB-1 cases from 2010 and 2011.  The data, although not a complete picture of the EB-1 Visa – provides statistics that reflect what many EB-1 Visa Lawyers have been feeling about the category.

For example, statistics show that Requests for Further Evidence (RFE’s) are much more likely in EB1-1 Extraordinary abilities visa petitions than in EB 1-2 outstanding professors and researchers categories.

K-1 [...]]]> The USCIS has issued its AAO processing times report for July 2011.   AAO stands for Administrative Appeals Office and is the part of the immigration agency that reviews appeals to certain immigration decisions made by the immigration agency.  A few of the more popular immigration categories are listed below (along with the processing time):

K-1 Fiance Visa -   2 months

H-1B Specialty Occupation Visa – 20 months

I-140 EB 1-1 Visa for Extraordinary Abilities – 15 months

I-140 EB 1-2 Visa for Outstanding Professors and Researchers – 6 months

I-140 EB 1-3 Visa for Multinational Managers – 18 months

I-140 EB 2 National Interest Waiver – 13 months

The speed of the business world and the speed of the immigration system are rarely the same.  In the high-paced business world it is difficult to wait weeks or even months to receive immigration approval from the USCIS.

Acknowledging its slowness, the USCIS provides certain employment-based immigration petitioners to receive a response within 15 [...]]]>  

The speed of the business world and the speed of the immigration system are rarely the same.  In the high-paced business world it is difficult to wait weeks or even months to receive immigration approval from the USCIS.

Acknowledging its slowness, the USCIS provides certain employment-based immigration petitioners to receive a response within 15 days.  The service, called Premium Processing, comes at a cost – currently $1225 – that is payable to the Immigration Agency.  With Premium Processing, the immigration agency guarantees that it will provide a response to a petition within 15 days of receiving a petition.  Additionally, the immigration agency provides direct contact information for attorneys to utilize for Premium Processing cases.

Premium Processing is available for many nonimmigrant and immigrant visas.  The Premium Processing Chart below show the petitions that can currently utilize premium processing.

The new address is:

USCIS Dallas Lockbox

EB 1-1 [...]]]> The USCIS has recently released its statistics on the approval rates for the EB 11 Visa (Extraordinary Abilities Visa) and the EB 12 Visa (Outstanding Professors and Researchers).  These two immigrant visa types are the most enticing immigrant visas that the United States has to offer top notch immigrants.  Here are the statistics:

EB 1-1 Approvals for Extraordinary Abilities Visa

EB 1-2 Approvals for Outstanding Professors and Researchers Visa

The EB 1-A visa (also known as the EB 1-1 visa) is [...]]]> The USCIS recently released a policy memorandum concerning its adjudication of EB 1-A visa and EB 1-B Visa.  The memorandum updates the USCIS’s guidelines to its adjudicators as to how to review an application’s documentation and refines how the adjudicators analysis each petition.

The EB 1-A visa (also known as the EB 1-1 visa) is for noncitizens possessing extraordinary abilities in a field of endeavor that is beneficial to the United States.  It is the most enticing immigration visa the United States has to offer the best and brightest minds.  The EB 1-B visa (also known as the EB 1-2 visa) is for outstanding professors and researchers.  It is a slightly yet enticing immigration visa for attracting the best and brightest minds to the United States.

The revisions to the adjudicator’s guidelines follow a federal court case in which the USCIS was found to have distorted the criteria necessary to obtain the EB 1-1 and EB 1-2 visa.  As a result of the distortion, it is believed that many eligible petitioners were denied.   Although it is yet to be seen whether the new guidelines will alleviate the problem, it is hoped that they will increase the likelihood of more eligible applicants will be granted the visas.

To see if these changes will affect your ability to qualify, please contact a EB-1 Visa Lawyer.

The USCIS decided to review and revise its process for granting EB-1-1 visa decisions following a 9th Circuit Court [...]]]> The USCIS recently released a preliminary template for its adjudicators to follow when deciding EB-1 decisions.   The release was made to allow EB-1-1 practitioners the opportunity to comment on the revised template before it became final.

The USCIS decided to review and revise its process for granting EB-1-1 visa decisions following a 9th Circuit Court decision that criticized the agency’s inappropriate adjudication of previous EB-1-1 visas.  Whether the USCIS will change its EB-1-1 process (and not just its template for decision) is yet to be seen.

If you are interested in reviewing the template for EB-1-1 visas, please visit the USCIS website.

The preliminary memorandum [...]]]> As previously mentioned, the USCIS has issued a preliminary memorandum concerning changes it is considering making to the EB 1-1 and EB 1-2 Visa category.  The impetus for the memorandum is the Ninth Circuit’s Kazaran decision, which criticized the USCIS for creating novel interpretations of the EB 1-1 and EB 1-2 criteria.

The preliminary memorandum was made public in an attempt to gain additional insight into revising the two categories from attorneys who focus on EB 1-1 and EB 1-2 cases, and from other shareholders in these two immigrant categories.   Once the USCIS has had time to navigate the responses to its preliminary memorandum, it is expected that it will issue a final memorandum.

EB 1-1 Immigrant Status is reserved for immigrants who possess extraordinary abilities and who will benefit the United States by becoming a lawful permanent resident.  Many immigrant scientists, immigrant physicians, and immigrant businesspersons use the visa to bring their highly valuable skills to the United States.

EB 1-2 Immigrant Status is reserved for outstanding scientists and researchers who will come to the United States and contribute to the nation’s economic, academic and scientific growth.