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  • Blog Feeds
    08-31 09:40 AM
    USCIS has released a new interim memo which clarified the method of analysis by USCIS officers that they must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. This interim memo is a response to the U.S. 9th Circuit Court of Appeals decision in Kazarian v. USCIS on March 4, 2010. In the Kazarian ruling, the court held that USCIS was being too strict in deciding EB1A petitions by requiring extensive citation evidence and specific types of peer review work in order to meet the EB1A criteria. However, the court did rule that USCIS could consider evidence such as extensive citations in making a final merits review of the case to determine whether an alien is at the very top of his or her field.

    In essence, the new USCIS interim memo breaks the evaluation process up into two parts � 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant�s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavor. This article will explain how the evaluation will be handled for affected EB1A and EB1B I-140 petitions.

    For the first step in evaluating EB1A cases, the officer will check to see if evidence is provided to show that the applicant has met at least three of the following ten criteria:

    1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

    2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

    3. 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;

    4. 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 specialization for which classification is sought;

    5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

    6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

    7. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

    8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

    9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;

    10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

    After the officer has determined by a preponderance of the evidence that at least three of these criterion have been met, he or she moves into the second part of the review. For EB1A cases, the second part of the review involves determining whether the applicant has achieved a level of expertise indicating that he or she is one of a small percentage who has risen to the very top of the field of endeavor, he or she has shown sustained national or international acclaim, and his or her achievements have been recognized in the field of expertise. This basically means that the officer will look at all the evidence as a whole and determine if the case is approvable. This new standard may decrease the number of approved cases since, by implementing this secondary review process, USCIS officers have the discretion to deny cases even if three EB1A criteria have been technically met.

    New Evaluation Process For EB1B Cases

    For the first step in evaluating EB1B cases, the officer will check to see if evidence is provided to show that the applicant has met at least two of the following six criteria:

    1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

    2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

    3. 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;

    4. 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 specialization for which classification is sought;

    5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

    6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

    For the second part of the review for EB1B cases, the officer will make a final merit determination on whether or not the applicant has, by a preponderance of the evidence, demonstrated that he or she is recognized internationally as outstanding in a specific academic area. Therefore, simply showing that two of the criterion have been met does not necessarily mean that the case will be approved. This, in turn, greatly expands the USCIS officer�s discretion in deciding which cases to approve.

    Prior to this USCIS memo, the evidence was evaluated only in the context of meeting the necessary criteria for each type of case. Now by adding a second �final determination on the merits� phase of review, USCIS officers have more flexibility in denying cases or issuing Request For Evidence notices even if the baseline criteria has been met. This memo essentially gives the USCIS officer wider discretion in adjudicating EB1 cases since it has added a new level of review which follows a fairly subjective standard. As a result it is very possible that immigration through the EB1A, EB1B, and EB2 Exceptional Ability categories will become more difficult than it has been in the past. However, due to the recent immigrant visa retrogression for people born in India and China, there is an increasing number of Chinese and Indians who choose to apply through the EB1A or EB1B categories rather than wait for visa availability in the EB2 category. Hence, we recommend to consult a qualified immigration professional before proceeding with EB1 and EB2 cases.




    More... (http://www.visalawyerblog.com/2010/08/eb1_new_review_processes_based.html)





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  • ajju
    04-09 05:18 PM
    Please appply EAD renewal in 120 days advance. You will get in time. :)

    My lawyer said I can work up to 3 months with receipt provided it was applied at least 90 days before expiry...

    I think its good to call USCIS directly and confirm.. Most of us will be in same boat sooner or later...

    This applies for renewal cases only.. not for first time EAD (actual card needed)





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  • theshiningsun
    10-08 04:50 PM
    eb2c 01jun06
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  • GC_ki_daud
    03-13 03:17 PM
    Hello Members and GURUS,

    One of my coworkers I140 was rejected today. His application was made in year 2006 . The reason for his rejection was that too many GC petions filed by the company. And the USCIS asked the Company to show the ability to pay him and all other "78' applications that were made by my employer. Out of the 78 many have their 140 cleared since last year or more than that.

    My fear/question is weather the explanation asked by USCIS to show comapany's compentency to pay all 78 petitioners could jeopardize all of them ??



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  • pappu
    01-28 05:46 AM
    Excellent proactive attitude......This is what we need....

    I would like to make the following pledge...

    For anyone who gets one friend to sign-up for a $20 monthly recurring contribution, I will make a one-time contribution of $50 per recurring contribution upto $1000.


    Anyone ready to take up my pledge?
    Thank you for your pledge.
    I am sure our members will take it up as a challenge and help you complete your pledge.





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  • wandmaker
    08-17 01:19 AM
    We got "Approval Notice Sent" emails 6 days back. I received my EAD 3 days back but haven't received my wife's yet.

    Has anyone filed for Replacement EAD? Do we need to wait 30 days from the date we received the approval email? How long does it take usually to receive a Replacement card?

    Please share your experiences.
    Thanks.

    "Card production ordered" is the first status that you will see and then it will change to "Approval notice sent". Tentatively, Your card will be postmarked with the date when your status changed to "Approval notice sent" and it takes upto 4 calendar days to receive the card through mail. Usually, approval notice goes to attorney on file for 765, if you have filed G28 otherwise you will receive it. Call USCIS and find out whether the card is ordered then ask for follow-up actions and decide whether to file for replacement card. There is no separate form for replacement cards - you will still be using same 765 form; I guess, same processing time applies - you may expedite by taking infopass after receiving the receipt notice for your replacement card by providing the letter from the employer. Hope this helps.



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  • cucubau
    10-17 03:39 AM
    It means you will be able to get your EAD in a few weeks, based on your ability to file for I-485. The real thing ... well it can take anywhere between 8-9 months to more than 3 years, depending on how quickly FBI completes your name check and how slow or fast the USCIS service center is.

    Assuming I filed for I-485 before the retrogression mess.

    Thanks!





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  • amitjoey
    01-04 04:05 PM
    So we are over 8000 strong. Lets target 10,000 by Jan 15?

    Yes sbabunle, thanks for your support. That is a good goal. Please support the "Add a member" thread by posting on that thread and keeping it to the top. Please post your inputs, your posts will motivate other members to keep adding new members and inviting new friends to become a member of IV.



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  • TexDBoy
    02-06 03:32 PM
    Hi All,

    I got promoted to Manager but my GC is applied for a Consultant 2 position (Developer Job Description). My Lawyers do not think it is an issue since it has been more than 6 months of my 485 application.

    Is this really true?

    Thanks,
    Kaushik

    Hi Kaushik,

    Are you filing an H1B Amendment to reflect your new position





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  • sk.aggarwal
    05-01 12:26 PM
    It all depends on how short you are..Following are options

    1. Housing loan from India: Secured loan but very high interest rate, not very difficult to get
    2. Personal loan from India: Unsecured loan with very high rate. Not very sure abt this.
    3. Personal loan from US: rate between 8-12%. Max amount is around 20K USD
    4. Home equity line of credit: If you own a home and have equity. You should be a loan against it at very reasonable rate. and I think, it has some tax benefits also ..
    5. Loan against your 401K: you can get 50% of your 401K at around 5-6%. But you will have repay if you leave your employer.



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  • Digitalosophy
    11-02 04:17 PM
    No hard feelings. I just really need to get back on my feet, since I am relatively busy I just got my own place, and I really need an idea to set me in motion. I am not a spontaneous artist in any sense at all.


    There are many members here, who are looking to get better and get some experience just like you. Maybe you can team up with someone, and do some cool projects to build a portfolio, etc.

    Also you should make yourself a website displaying your work that you have now.

    :thumb:





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  • rb_248
    05-11 08:43 AM
    Thanks desi - AOS is what I was thinking as well but that doesn't seem to be one of the options listed when opening an account (the firm is Ameritrade - you check out their website https://wwwna.tdameritrade.com/cgi-bin/apps/IraApServlet). Guess they are just not aware of this status since it wasn't really designed to be a "status" and only recently have several people moved to AOS status given the backup for EB3 and EB2 China/ India

    When I was on EAD, I called my status as "ADJUSTEE". That is not a valid status either. If you are applying for a brokerage account, you may call them to find out. But, they may ask you to fill other foreign national forms and all. I had the same problem when I was trying to open a brokerage account with TD. So, I went with Zecco.



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  • ttdam
    12-03 01:56 PM
    So u are saying if she uses her EAD/ AP then my H1b is no longer valid? BTW she got her h1b visa in the lottery earlier this year.


    Hi zoooom

    Did your wife been to India and Came back using H4 or AP ? If she returned did she had any problem @ POE ?

    Please advise, I m in similar situation

    Thanks in advance





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  • desi3933
    04-07 06:57 PM
    ......
    Finally secured the job with 3 offers from 3 top companies
    ......

    Congrats!

    _______________________
    US citizen of Indian origin



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  • sbabunle
    01-04 03:55 PM
    So we are over 8000 strong. Lets target 10,000 by Jan 15?





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  • bestia
    07-17 03:22 AM
    So it means that if I-140 petition is filed on my behalf, if I renew my non-immigrant visa, it would be denied?

    It COULD be denied or could be approved. The law is vague and consular officers have full right to approve or deny anything, they are not USCIS employees, and even US president can't order them.

    I have played DV lottery for many years (never won as you can guess). Embassy instructed that it is immigrant intent and we should have marked "yes". So, I marked "yes" - and got my B1 without any problem.



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  • bombay_masala
    06-18 01:09 PM
    What is the Alien Registration number from I140 approval ? How do we get it if we don't have the copy of I-140 approval?



    Any more thoughts on this issue. I am making a list of documents in three categories: (i) docs/info needed absolutely (ii) docs that are not must but might help (iii) docs that are not needed at all. Please edit this list based on your research (if you can add links/cite docs to support that would be great).

    With long delays many people will be using AC21 and we might see these question repeatedly - a sticky thread can really help.

    (i) Documents or information that is essential (if you don't have these documents or info don't even think about changing jobs and just stay put at old employer)

    485 receipt number
    Alien Registration number from I140 approval (if its already done)
    Employment letter from the new employer with title/function same/similar to labor application
    Job functions from approved labor/I140 to get the above
    ??
    ??


    (ii) Documents or information that is not necessary but is good to have (try to get these documents; if you are not able to get them there might be still a way to use AC21 using a lawyer or something)

    A copy of I140 approval
    A copy of labor certification
    ??
    ??


    (iii) Documents you don't need at all (don't loose sleep if you don't have them; even if you dont have them you can use AC21 without help of a lawyer)

    ??
    ??





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  • h4hopeful
    04-06 04:30 PM
    I am new and just discovered this thread, regarding the Talent Bill that if passed, among other benefits will let H-4s work. Anyone knows who is promoting it and who we can to make sure it is considered and debated? Thanks.





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  • vikki76
    07-19 08:36 PM
    If you have copy of approved I-140, then your priority date would be mentioned there.





    GCwaitforever
    03-24 02:32 PM
    Nope. Unless it has some Technology concentration.





    go_guy123
    01-21 10:51 PM
    Most affected are Chinese and Indian members...I don't know much about Chinese but I know from experience that it is hard to get money out of Desis...
    They have a multiplication factor inbuilt in their minds 1$X44 = 44 Rupees!!!
    So sad.
    I am a desi too. So do not get offended.

    Actually it worst for India now (china retrogression is lesser)
    Either way Chinese nationals have other aveues (because
    of communist govt, anti-two child law etc which make asylum cases strong)