EB-5 Investor Visas are so Great

Report
Options For Filing A Self-Sponsored
Petition For Permanent Residence
Kathleen Grzegorek
Certified Specialist in Immigration
& Nationality Law
Terminology – Permanent Residence
 Lawful Permanent Residence (LPR) status
2
o
“Green Card”
o
Live and work in the US indefinitely
o
Can also lose this status
• Abandoning residence
 Staying out of the US for 6-12 month period
(with exceptions)
• Criminal convictions
o
Retain citizenship of home country
© Stone Grzegorek & Gonzalez LLP, 2014
Different Paths to Permanent Residence
 Family Relationships
o
Spouse, Parent, Adult Son/Daughter, Sibling
• Majority of Green Cards given in Family Category
 Investor Visas
o
o
o
$500,000 (Regional Center Investment Pool) to $1,000,000
(own business) depending on investment
Create jobs for 10 US workers
2 year conditional residence
 Diversity Visa Program (“Lottery”)
o
Held every year – usually October to December
 Other (Asylum, Refugee, etc.)
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© Stone Grzegorek & Gonzalez LLP, 2014
Necessity of Planning Ahead
 If you plan on staying in the United States long-term,
need to plan ahead
 It can take from 1.5 to 4+ years to obtain Permanent
Residence depending on the preference category and
your place of birth
o
Some nationalities such as India and China have longer
wait
• We will discuss why a longer wait for certain people
later in this talk when we look at the Visa Bulletin
 Can have H-1B status for 6 years, but more time is
possible IF your green card application is filed before you
enter the 5th year
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© Stone Grzegorek & Gonzalez LLP, 2014
Strategic Planning
 Save immigration documents and build documentation
for a future case
 Making a “green card” folder
o Copies of old passports, Forms I-20, DS-2019, etc.
o University Degrees, transcripts and translations into
English
o Biographical Documents
• Birth, marriage, divorce certificates, birth certificates of
your children plus translations into English
o
Documentation for Self-Sponsored Employment
Preference Categories
• We will discuss in detail for the remainder of this talk
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© Stone Grzegorek & Gonzalez LLP, 2014
Employment Based Green Card Categories
Employment Based
1st Preference
(EB-1)
1. Extraordinary Ability
(can be self-petitioning)
2. Outstanding
Professor/Researcher
(employer sponsored)
Employment Based
2nd Preference
(EB-2)
1. Advanced Degree (labor
certification required—
employer sponsored)
2. National Interest Waiver
(no labor certification
required—can be selfpetitioning)
Employment Based Bachelor’s Degree
“Skilled worker”
3rd Preference
(EB-3)
When Should You Consider Self-Sponsorship
 If an employer is unwilling to sponsor you since the job is
temporary
o
Employer sponsored categories require a permanent job
offer
 You do not want to be tied to the employer for a certain
length of time
o
It can take 1.5 or more years to process permanent
residence
 The employer is new or future unstable
o
Can be an issue with startups
 Payment of Fees – Employer unwilling to pay
o
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Some categories such as those involving labor certification
require the employer to pay legal fees
© Stone Grzegorek & Gonzalez LLP, 2014
First Preference – Extraordinary Ability
 Level of expertise indicating that the person is one of the
small percentage who has arisen to the very top of the
field of endeavor
o
o
Narrow the field
• Not just Astrophysicist – Astrophysicist in Cosmic
Microwave Background
Helpful to be at least a few years out from Ph.D. and not a
recent graduate
 Will continue work in the area of extraordinary ability
 Work will substantially benefit prospectively the United
States
 Sustained national or international acclaim and whose
achievements have been recognized in the field through
extensive documentation
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© Stone Grzegorek & Gonzalez LLP, 2014
At Least 3 of the Following Categories
Must Be Documented:
 Receipt of major prizes or awards
o
Include only awards given during your professional career,
awards given while you were a student are not recognized
for immigration purposes
 Evidence of membership in associations that require
outstanding achievement
o
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Include associations where you are invited to be a member
or there are some distinguishing criteria for membership
based on your standing in the field
• Good – National Academy of Sciences
• Bad – those that only require a fee for membership or a
degree
 IEEE, American Physical Society, etc.
© Stone Grzegorek & Gonzalez LLP, 2014
Extraordinary Ability Criteria - Continued
 Published material in professional publications written
by others about your work
o
o
Citations do not count here, but, if you were quoted and/or
featured in either trade or general publications in the US or
abroad
TV interviews, other press
 Evidence of your participation as a judge of the work of
others
o
o
o
o
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Referee on Journal Articles
• Asked you specifically – not your advisor
• Other editorial work (Assistant Editor)
Committees on grant proposals
Conference organizing committees
Telescope Allocation committees
© Stone Grzegorek & Gonzalez LLP, 2014
Extraordinary Ability Criteria - Continued
 Evidence of original scientific research
o
o
o
o
o
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Citation Index
• Times cited
• Impact factor of journal
 Can also describe journal ranking
th highest ranked
o Physical Review Letters is the 9
journal in the field of physics and astronomy
out of 210 journals
• Important articles that cited your work
Patents
• Include whether provisional, full, US or international
• Indicate if it is being applied commercially
Principal or Co-Principal Investigator
Talks, particularly invited talks
Measurements such as h-factor
© Stone Grzegorek & Gonzalez LLP, 2014
“Big Science” and Documenting Specific
Scientific Contributions
 Issue with both Extraordinary Ability and NIW
petitions is the role of an individual within a large
science project
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o
Explain the project, goals, budget, participants, etc.
o
Describe the “Job” versus the “Role” within the
project
o
Describe how publication of results is handled
o
JPL/NASA awards
© Stone Grzegorek & Gonzalez LLP, 2014
Extraordinary Ability Criteria - Continued
 Testimony from scholars or public figures regarding
your contributions
• Letters from the US and abroad, academia, industry
and/or government research institutions
• People with whom you have collaborated and people
with whom you have no connection
• Letters do not need to be of recent date, you can gather
letters now even if you won’t be filing the case for a few
years
• CV of letter writer is helpful
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© Stone Grzegorek & Gonzalez LLP, 2014
Extraordinary Ability Criteria - Continued
 Authorship of scholarly books or articles in the
field
14
o
Articles
• Explain how authors are listed for particular
field
o
Books or chapters in books
o
Abstracts and conference proceedings given less
weight
© Stone Grzegorek & Gonzalez LLP, 2014
Second Preference – National Interest Waiver
 The normal requirement of an approved labor
certification may be waived if it can be demonstrated that
it would be in the national interest to do so
o
Saves much time and allows self-sponsorship
 Must have Masters or Ph.D.
o
A few exceptions for those with much experience
 Work must be in the National Interest such as:
o
o
o
o
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Improving the U.S. economy
Improving health care
Improving the environment of the U.S. and making more
productive use of natural resources
Involving a request from an interested U.S. government
agency
© Stone Grzegorek & Gonzalez LLP, 2014
Extensive Documentation Required
 Documentation would include everything for the
First Preference plus evidence that:
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o
Requiring a labor certification is against the national
interest
o
Your research is of substantial intrinsic merit
• Must show your work individually is of merit –
not just a member of a group that has merit
o
Your work is national in scope
© Stone Grzegorek & Gonzalez LLP, 2014
Requiring a labor certification is against the
national interest
 Congress created the national interest waiver in order to
address the limitations of the labor certification process
o The labor certification process serves the national
interest by protecting United States jobs and
preventing foreign nationals from immigrating where
there is a willing, able, and minimally qualified United
States worker. However:
• There are foreign nationals who provide unique and
substantial benefits to an entire field of endeavor above
and beyond what could reasonably be expected as part
of “the job”
• Certain positions, especially those in the science and
engineering fields, clearly emphasize national
contributions and demand the best and most qualified
applicants
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© Stone Grzegorek & Gonzalez LLP, 2014
Requiring a labor certification is contrary to
the national interest because…

Time Constraints
• The labor certification process is long
 Demonstrate participation in the labor certification
process would result in great expenditure and loss of time
to train a new employee for the position who is unlikely
to be familiar with the projects already being conducted

Difficult or Impossible to Quantify Skills and Experience
o
o

Security Issues
o
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Qualities that are extremely rare, due to the specialized nature of
research
Combination of skills/experience is rare
• For example: The work requires the melding of modeling
expertise, and data analysis paired with outstanding software
engineering skills
Any special considerations such as advancing the research is
hampered by security clearance requirements
© Stone Grzegorek & Gonzalez LLP, 2014
Substantial Intrinsic Merit
 Defining substantial intrinsic merit
o
Research that is inherently beneficial
 Demonstrating your research is of substantial intrinsic
merit
o
Describe the research in detail for a general audience
• Use simple to understand graphs, photos, etc.
 JPL has some stunning and breathtaking photos!
 Focus on the proposed employment and not just
qualifications and past work
o
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This is particularly important with entrepreneurs
© Stone Grzegorek & Gonzalez LLP, 2014
National in Scope
 Research is of national or international impact
o
Not just a local problem
 Funding
o
Can show the backing of an interested government
agency to demonstrate national importance
 Government sponsored studies regarding targeted
research areas
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© Stone Grzegorek & Gonzalez LLP, 2014
What Category, Extraordinary Ability (EB-1)
or National Interest Waiver (EB-2)?
 Visa Backlog
o
If India or China national, want to file under EB-1 given
significant backlog in EB-2
 Timing Issues
o
Processing times for both categories are at least 4 – 6
months
• Can premium process (an extra $1,225) an EB-1 but not
an NIW
 Strength of Evidence
o
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NIW standard is slightly lower, “some impact on the field
as a whole,” while EB-1 is “major significance to the field”
© Stone Grzegorek & Gonzalez LLP, 2014
Applying in More Than One Category
 You can apply under more than one category, the
documentation is similar
 If unsure, what category, or, applying in both, ask
letter writers to cover both extraordinary ability and
why your work is in the national interest
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© Stone Grzegorek & Gonzalez LLP, 2014
Timeline for Entire Permanent Residence
Process
 Form I-140 petition
o
Approximately 2 weeks to 6+ months
• Add in time if a Request for Evidence (RFE) is
issued
 Can require a simple or complex response
 Adjustment of Status
o
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Approximately 4-6+ months
• Can file adjustment concurrently with I-140
Petition to save time
 However, if I-140 is denied, then I-485 is
denied
© Stone Grzegorek & Gonzalez LLP, 2014
First Step – File I-140 Petition
 Decision
o
Approval
o
Request for Further Evidence (RFE)
• USCIS may request further documentation or
clarification on certain points before it will make a
decision
o
Denial
• Does not bar future applications, however, it does need
to be listed on the future application
 You should show that there is new documentation,
new research, etc. that was not available for the
first petition
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© Stone Grzegorek & Gonzalez LLP, 2014
Second Step – Adjustment of Status
 Adjustment of Status
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o
Can also file for employment authorization document
(EAD) and travel document (advance parole) for you,
as well as your spouse and children
o
Usually takes 4+ months
o
Medical exam and potential interview can be done
where you live in the US
© Stone Grzegorek & Gonzalez LLP, 2014
Variables in Processing Times
 Visa Bulletin – Visa Quota System
 Security Clearances and Background Checks
 Family Situations
 USCIS dependent variables
o
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Depending on numerous outside factors such as
legislation, USCIS workloads, etc. case processing
times can vary
© Stone Grzegorek & Gonzalez LLP, 2014
Approval/Denial Rates
 Approval Rates for I-140 Petitions in the Extraordinary
Ability Category is 62% (most recent year available)
o
The numbers include cases that aren’t comparable such as
cases in business, arts, etc.
 If your case is weak
o Wait until you have more experience, research
results, etc.
o
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Find an employer
• Generally, an employer sponsored petition would have
a better chance of success than a self-sponsored petition
because of lower standard (extraordinary ability v.
outstanding researcher that has a 91% approval rate)
© Stone Grzegorek & Gonzalez LLP, 2014
Family Situation
 Spouse and unmarried children under 21 years are
included in your case
o
However, if you marry after receiving permanent
residence, wait list for spouse is approximately 2+
years
 Same sex spouses now allowed to obtain permanent
residence through spouse
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© Stone Grzegorek & Gonzalez LLP, 2014
Entrepreneurs
 No “entrepreneur” category of immigration
 No neat fit in law for entrepreneurs; perception is
that administration of immigration laws is in hands
of enforcement first bureaucracy, and advancement of
entrepreneurship is not a priority
 Insufficient immigrant visa allocation causes severe
backlog and leads to “Brain Drain”
o
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Likely only a small number in backlog would qualify
for an entrepreneur visa
© Stone Grzegorek & Gonzalez LLP, 2014
Potential Legislation Targeted at
Entrepreneurs - Elements
 “Qualified entrepreneur”
o
o
o
o
Has a significant ownership interest in a US business
Senior executive position in a US business
Had a substantial role as founder or in development of the
business
Presents a business plan with the petition
 Past 2 years in non-immigrant status
 Business created specific number of jobs (4-5), and
 Validation investment of a specific amount ($500,000) or
business had a specific revenue past 2 years)
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© Stone Grzegorek & Gonzalez LLP, 2014
How Much Does it Cost?
 Immigration attorneys charge either on a fixed fee
basis or based on the amount of time spent on the
case
 Balance costs against the reputation of the law firm
and its track record
 Many employers will pay immigration fees or part
of the fees
 Government Filing Fees
o
o
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I-140 Petition $580
• Additional $1,225 for premium processing (EB-1)
I-485 Application $1,070
© Stone Grzegorek & Gonzalez LLP, 2014
Questions
Disclaimer:
This presentation is for general education purposes only
and is not intended as legal advice. Questions about specific
immigration matters should be presented in confidence to a
qualified immigration attorney.
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© Stone Grzegorek & Gonzalez LLP, 2014

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