The National Interest Waiver

Posted February 6, 2018

Citations:

  • Immigration and Nationality Act (INA) §203(b)(2)(B)
  • 8 USC §1153(b)(2)(B)
  • 8 CFR § 204.5(k) et. seq.
  • Adjudicator’s Field Manual (AFM) 22.2(j)(4)
  • Matter of New York State Dep’t of Transportation (NYSDOT), 22 I&N Dec. 215

The National Interest Waiver (NIW) is a sub-category of the Employment-Based (EB) 2nd preference immigration category.  The EB-2 category allocates immigrant visas (i.e., grants of Lawful Permanent Resident (LPR) status, aka green cards) at an annual level equivalent to 28.6% of all worldwide immigrant visas (approx. 40,000 per year), plus any unused immigrant visas from the EB-1 category.  EB-2 is generally reserved for “members of the professions holding advanced degrees” or persons of “exceptional ability” (as opposed to the more stringent “extraordinary ability” requirement for the EB-1 category).

There are two significant differences between the EB-1 and EB-2 categories.  First, qualifying foreign workers may self-petition for LPR status in the EB-1 category – that is, petition for LPR status without a standing job offer from a U.S. employer – if claiming eligibility as a person of extraordinary ability, or as a multinational executive or manager.  Workers in the third EB-1 sub-category, outstanding professors or researchers, must have a tenure or tenure track offer from a university or institute of higher education, or a private employer actively engaged in the research, thus may not self-petition.

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USCIS Again Accepting Deferred Action (DACA) Renewal Requests

Posted January 16, 2018

Read the official USCIS notice.  According to USCIS:

“If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.”

“If you previously received DACA and your DACA expired before Sept. 5, 2016, or your DACA was previously terminated at any time, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions.”

 

 

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Federal Judge Halts Trump DACA Termination

Posted January 10, 2018

A federal District Court judge in San Francisco ruled on January 9, 2018 that the Trump Administration’s efforts to terminate DACA were based on a “flawed legal premise” and halted the winding down of the program, casting further confusion on renewal eligibility for thousands of DACA recipients.  If you are a DACA recipient that possessed approved deferred action status on September 5, 2017 – the date of the Trump Administration’s announcement to terminate DACA – you MAY be eligible in the near future to apply for renewal, pending further rulings by higher courts.

WHAT IT MEANS: Practically speaking, DACA recipients CANNOT submit renewal applications until (if) USCIS implements the ruling, which appears unlikely to happen soon.  More likely, the Ninth Circuit Court  of Appeals will take up the appeal and USCIS will delay implementation of renewal applications until a Ninth Circuit ruling.  And any number of judicial or political decisions may be made in the meantime that render the District Court ruling irrelevant.

Stay tuned as Washington, DC finally grapples with the vexing issues of Dreamers and U.S. immigration.

 

 

 

 

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E-2 Treaty Investor – Best Evidence

Posted November 9, 2017

Section 101(a)(15)(E) of the Immigration and Nationality Act (INA) authorizes E-2 visa classification for the national of a treaty country who “develops and directs the operation of an enterprise in which he or she has invested, or is actively in the process of investing, a substantial amount of capital.”

The following document checklist describes evidentiary documents that typically demonstrate an individual’s or small group of partners’ qualification for E-2 treaty investor status in the United States.  The list is non-exclusive.  Best evidence of investor qualification (items 4 though 6) should be always tailored to the petitioner/investor’s background and proposed investment enterprise.

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