Category Archives: Green Cards

Attorney General Sessions Denies Request Of DHS That He Suspend Briefing Schedules And Clarify Question Presented And Grants, In Part, Parties Request For Extension Of Deadline For Submitting Briefs.

On March 30, 2018, Attorney General Sessions issued an order addressing requests from both parties in a case he had previously referred to himself for review. The parties had been asked to submit briefs and schedules for initial, amici and reply briefs had been set.

However, respondent requested an extension of the deadline for submitting initial briefs and, 3 days later, DHS moved to: 1)suspend the briefing schedules to allow the Board of Immigration Appeals (BIA or Board) to rule on the certification order of the Immigration Judge (IJ), 2)clarify the question presented, and 3)extend the deadline for submitting its initial brief.  Respondent then filed a request for the same relief.

In his order, the Attorney General (AG) first stated that certification from the IJ was “not properly pending before the Board”, claiming the IJ had not acted within his authority as delineated by the controlling regulations as he had not issued a “decision” on remand that could be certified to the BIA.

The AG also denied DHS’s request to clarify the question presented, stating that he had requested briefing on whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” (PSG) for asylum or withholding of removal purposes.  Noting that he had invited the parties and interested amici to brief the relevant points, the AG declared that if being a victim of private criminal activity qualifies one as a PSG member, “the briefs should identify such situations” or explain why such situations do not exist. Observing that DHS was requesting clarification because “this question has already been answered at least in part, by the Board”, AG Sessions held that “Board precedent…does not bind my ultimate decision in this matter”, citing to INA §103(a)(1).  He then gave new duties for the filing of initial, amici, and reply briefs, holding that no further requests for extensions would be granted.

Matter of A-B-, 27 I&N 247 (A.G. 2018)

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Green Card Self-Petitioning Versus The “PERM” Process

There are the exceptions to the rule that you generally need a sponsor to allow you to get a green card: Individuals who are some of the few, at the very top of their fields, whether they are considered to be Aliens of Extraordinary Ability, Outstanding Professors or Researchers, or Multinational Executives or Managers. If you fall under one of these categories, you can often self-petition; you don’t have to have a petitioning employer filing a labor certification for you. You essentially skip that whole first stage and then you are allowed to continue on with the process.

But by definition in the regulation, these are the people who are not necessarily found in every employment situation. They are the people found at the top of the field.

In addition to those three top categories: Our Extraordinary Ability Person, Outstanding Professor or Researcher, or Multinational Executive or Manager, there are also people who would provide a service to the United States and they can apply through what is called a National Interest Waiver.

The National Interest Waiver is something that is given to people who can show that giving them the green card is not trying to contravene the intent of the normal labor certification process that we discussed earlier.

The National Interest Waiver is designed for those who are going to show that there is something in the United States that is needed that they can provide that is in the national interest: Information, Education, Service or something that is not normally available or that would provide a specific benefit to the U.S. population as a whole, as opposed to just a specific company.

Q: Can you give me an example of someone you helped under those circumstances?

The ones that come to mind are people who are undertaking medical research, not necessarily medical doctors but individuals who are researching the efficacy of drugs that are being used for cancer patients, or those who are trying to create the analysis and understanding of the different permutations of what happens when you give someone a drug and how that reacts with their everyday life or reacts with other medicines they are required to take.

These are people who are also at the top of their fields, generally, although they may not be at the very top. They could become someone who is an Extraordinary Ability Person, but are currently just someone who is doing something that is pretty hard to find in the United States and therefore the Government has said that we do not have to show that there is no one able, willing or qualified to do the job. The nature of what they are doing and what they can provide to the U.S. is in the national interest.

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Labor Certification

Q: Is the Labor Certification part of the H-1B? What type of a Visa is that?

A: It’s to help the person get a Green Card. So, there are subcategories for the Green Card, but ultimately it is to get an Immigrant Visa, whereas the H-1B is a non-immigrant visa.

These are terms that are often used interchangeably.

Under the H-1B Visa process there is an application called the Labor Condition Application, and that is something that basically guides the company to know when and where they can hire the individual and what their salary requirements are for the 3-year H-1B period. Whereas the PERM Labor Certification process is designed to allow the employer to sponsor the person for a permanent visa or immigrant visa, so that they can basically employ the person with no restriction.

And, that’s a very valuable tool because something we haven’t mentioned so far is when you’re hired in a nonimmigrant classification, as a general rule, you are restricted to that employer, you are restricted to the position you are sponsored under, etc.

Whereas, in the green card scenario, you are sponsored by a specific company for a specific position, but after a reasonable amount of time, you are not required to remain in that position. The employer can promote you, you can move around to different parts of the U.S. or even different parts of the world, in some circumstances without any of the restrictions that you would have under a nonimmigrant visa category.

But the Labor Certification process is a much longer process than for the H-1B because you are undertaking essentially 3 stages:

The employer is proving that there is no one able, willing or qualified to do the job by advertising the position and then filing the application with the Department of Labor.

If that is certified, then the employer is for the first time going to USCIS to file an I-140 petition, (this is the green card petition).

If that finishes, then, depending on where the person falls under the Visa Bulletin, which is the monthly quota system, then they can go and apply for the actual green card, whether it’s through the process called “Adjustment of Status” in the United States, or Immigrant Visa process in their home country, or wherever they are residing at the time.

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When a Business Entity is Your Sponsor Rather Than A Private Party

Q: If the sponsor of a potential immigrant is a company versus a U.S. Citizen, versus a green card holder, these probably have some impact on the success or failure of your application?

A: It can affect the timing of an application. For example, someone who is marrying a U.S. Citizen or is a minor child of a U.S. Citizen, is an “immediate relative”, and generally has a Visa or green card available to him or her “immediately,” once they’ve completed the process.

Whereas, if you marry a green card holder, you fall into a backlog because there is a quota system for that where there are only approximately 114,000 Visas available worldwide for those kinds of individuals. Someone in that situation may be waiting an extra year and a half to two years, while the person who marries a U.S. citizen is usually not waiting.

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A Question About Quotas Relating To Geographic Origin

Q: Geographically, for any of these Visas, if someone is coming from South America versus Europe or Asia, are there different quotas for different parts of the world?Is there application the same regardless?

A: Their applications are the same. There are quotas, although we no longer use a hemisphere-based quota system, exactly. The countries that are over-subscribed, meaning there are more people applying for green cards from those countries than are available given the per-year availability, they are “over-subscribed” and will begin to show backlogs, essentially waiting lists or queues, based on when an applicant’s initial submission is filed with the U.S. Government.

That date is called their “priority date,” and for those countries that are over-subscribed, which are generally China, India, Mexico, and the Philippines, there is usually a delay for people to process for their green cards until long after the initial petitions have been filed. For all other countries, what is called the “Worldwide Category,” there may be waits as well.

When there is no wait for the immigrant Visa the category, is considered “current.”

Q: If there is a country that is significantly under-subscribed, for example, if I’m coming from France, is it easier for me than if I’m coming from the U.K. or Russia?

No, not to my knowledge. There may be security concerns that are endemic or specific to a particular country, but I think someone coming from the U.K. versus someone coming from France would experience virtually identical application processes.

Of course, the U.S. Embassy in Paris may be quicker than the Embassy in London for a number of reasons, having nothing to do with the law, but that’s basically a function of staffing issues, the size of the Embassy’s physical plant, and technology problems with the U.S. State Department. But all things being equal, I don’t believe there is any differential between someone applying from the U.K. versus someone applying from France.

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Inadmissable Conditions for E, L and H Visas

The Immigration Act is a series of lists and one of the lists is who cannot come into the U.S.; in other words, people who are “inadmissible.” The list of people who are inadmissible to get E, L, and H Visas, definitely includes people with felony convictions, although they can obtain waivers, as can certain people with prior negative interactions with the Department of Homeland Security (DHS), e.g., say, those who have previously committed fraud. Those people also can get waivers in the nonimmigrant categories. The waivers are much more difficult to obtain in the immigrant categories.

That is, when you are applying for an E, H, or L Visa, you may be able to get what’s called a §212(d)(3) waiver for prior problems with DHS or criminal concerns.

Those waivers are very difficult to get for people who are applying for immigrant visas or (green cards). They often require that the applicant have a relative who is a U.S. citizen or a lawful permanent resident, and that some level of hardship be shown to that person if foreign national cannot get the green card and live in the U.S. or continue to live in the U.S.

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