Obama’s Immigration Reform and The High Tech Worker

In November 2014, President Obama announced certain executive actions that are meant to reform our immigration system.  The most immediate of these focus on helping children who were brought to the U.S. by their parents at a young age, expanding the existing Deferred Action for Childhood Arrivals program known as DACA, and undocumented parents of United States citizens and permanent residents (also a type of Deferred Action, known as DAP).

The benefits of this deferred action, when implemented in early 2015, will include freedom from the threat of deportation for at least three years and the ability to work legally in the U.S.

What about high tech workers and STEM students? Are they receiving any benefits from executive immigration reform?

President Obama promised to make it easier and faster for high-skilled immigrants, graduates and entrepreneurs to work in the U.S.  First, Obama plans to change the average wait time for Indian nationals to get a green card (currently about 10 years or more).  Second, another suggested change is to allow H-4 spouses of H-1b visa holders to work.  Obama also stated that there will be expanded opportunities for foreign entrepreneurs to start businesses in the U.S., which should help high tech workers who have product ideas, tech know how and ambition.  It isn’t clear what this expansion will look like yet, however.    It might be possible to expand the category of O-1 (extraordinary ability temporary visas) to include start ups.

Optional Practical Training (OPT) for STEM graduates will probably add another extension possibility, allowing STEM graduates to work longer in the U.S. and give them time to start on green card processing.

O-1 Extraordinary Ability Visa Approval for Geneticist

Recently, the Woog Law Office obtained an approval for an O-1 visa for a young scientist who is highly skilled in pre-implantation genetic diagnosis, a quickly developing area of genetics and embryology. 

The petitioner is a U.S. laboratory that provides screening of embryos before they are implanted in the uterus to identify genetic defects and identify embryos with the greatest chance of resulting in a healthy baby.  The beneficiary had co-authored several papers and was an integral team member of a world-renowned lab in the U.K. while pursuing his Ph.D.  However, he had no actual employment experience.  In the extraordinary ability category, youth can sometimes be a detriment because USCIS is looking for a solid record of unusual accomplishment in the applicant’s field and international renown.

In order to secure approval for this deserving scientist, whose skills were highly sought after by the petitioner to continue their state of the art research and clinical case work, our office helped the petitioner obtain detailed letters of reference from influential experts and academics regarding the beneficiary’s qualifications.  We concentrated on demonstrating how few PGD specialists there are in the world with his level of facility, and in response to questions from USCIS regarding the level of prestige of his publications, we produced extensive evidence of the impact of his journal articles.  Our office engaged in research to demonstrate the difficulty of the scientific techniques he had mastered and the potential of his work for reducing inequalities in reproductive medicine.  The Woog Law Office was able to obtain documents showing the international stature of prizes he had won for his research performed with other scientists.

The resultant approval underscores the importance of our individualized approach.  Each case of extraordinary ability, whether temporary (O-1) or permanent (EB-1), must be evaluated on its own merits.   It is important to understand the client’s areas of potential weakness as well as strength to maximize the potential for success.

Supreme Court’s decision on DOMA can benefit aliens with extraordinary ability in same sex marriages

SAME SEX SPOUSES OF HIGHLY SKILLED IMMIGRANTS: CHANGES IN THE LAW AFTER “DOMA”

Recently, the Supreme Court ruled in U.S. v. Windsor that the Defense of Marriage Act, or DOMA, which barred federal benefits for spouses in same sex marriages, is unconstitutional. One major benefit of this decision for gay couples is that a U.S. citizen or green card holder can now petition for his or her same sex spouse to receive a green card. The Woog Law Office is already handling several of these cases.

However, there are other important immigration benefits for same sex couples that have been given less attention. For example, if a professional employee is coming to work in the U.S. on an L-1 or H-1b visa, his same sex spouse may now be able to receive a dependent, or derivative, visa classification to enter the U.S. as well. Similarly, a worker who is applying for a green card based on his employment may now be able to include his same sex foreign national spouse. Such benefits may allow many couples to live in the U.S. instead of being separated or living abroad for many years.

These changes will be highly significant for many foreign born individuals, including those who possess “extraordinary ability” in a particular field. Let’s look at a couple of scenarios involving aliens with special skills and talents to understand the effects of the Supreme Court’s recent decision.

Scenario 1. Anna is a geneticist of some international renown, based in the Netherlands. She and her partner, Sarah, were legally married in Amsterdam. Anna is offered a job doing research at a lab in California. Anna receives an “O-1” visa based on her extraordinary ability as a scientist. Anna can then enter the U.S. to work on a temporary basis. Previously, her wife Sarah would not have been allowed to join her in the U.S. because the marriage was not recognized by the immigration laws. Now, Sarah can enter the U.S. in O-3 status, as Sarah’s “dependent” because they are legally married. With an O-3 visa, Sarah will be allowed to remain in the U.S. as long as Anna has the O-1, but will not be allowed to work.
Scenario 2. Ravi, a mathematician from India, has been in the United States for several years on an H-1b visa working at a hedge fund in New York. He developed a new method for analyzing stock market risk which received a lot of favorable publicity. Ravi is requesting a green card based on his extraordinary ability, known as an EB-1 petition. While in the U.S. he met Jon, who is from the Philippines. They lived together for two years and recently got married in New York. Jon is on an F-1 student visa studying finance. Before DOMA, Jon would have to change to a temporary visa classification or leave the U.S. at the conclusion of his studies. Now, however, Ravi can list Jon as his spouse on the EB-1 visa petition. If it is approved, then he and Jon may both be able to receive green cards at the same time. Then they will both be able to live together permanently in the U.S.
A cautionary note: These scenarios are likely results after the Supreme Court’s decision on DOMA. While as of yet the United States Citizenship and Immigration Service has not issued clear guidance on how such cases will be handled, it seems entirely likely that with the end of DOMA, same sex families will be treated the same as heterosexual marriages under immigration law. It is also important to remember that every case is unique and there may be various other factors affecting eligibility in a certain immigration category.

Fast and Successful Outcome for Outstanding Professor Green Card Case

Recently, the Woog Law Office helped an exceptional academic obtain approval as an Outstanding Professor in the EB-1 category – the I-140 visa petition was approved in just 3 days!

The Department of Homeland Security’s Texas Service Center approved the petition of a highly regarded university on behalf of a tenure-track professor of applied mathematics.  The Employment-based category in question (EB-1) for outstanding professors offers numerous advantages such as lack of a numerical quota and the availability of premium processing.  However, approval can be difficult as requests for this classification require extensive proof of the beneficiary’s high level of skill, international renown, and contributions to the field.

In this case, the Woog Law Office put together a well-researched and fully documented package of evidence that included the client’s awards, published articles, detailed letters of references, and citations.  He had also been asked to judge the work of other scientists as part of a panel and in peer reviewed journals.  Our office supplied a complete list of numbered exhibits and a lengthy legal brief explaining how this proof showed the applicant met the eligibility criteria for approval.  This highly skilled professor is a talented teacher and researcher who will now obtain his green card in a matter of only a few months and will continue to contribute to academic life and innovation in the U.S.

Immigration reform: Benefits for students?

Immigration reform or improvement is often in the news these days. Some reforms will help international students and high tech workers or potential workers. Under current immigration law it is extremely difficult for many foreign students to remain in the U.S. for more than a year after graduation.

There are two main obstacles:

First, there is a durational limit of 6 years in the H-b visa category, the temporary classification appropriate for most foreign professionals and college graduates. Also, H-1b employees are considered “out of status” as soon as they are terminated or leave their jobs without new, sponsored employment, and many workers in this situation have to leave the United States.

Second, obtaining legal permanent residence (a green card) is no easy feat. Although students from India or China may outnumber those from Turkey or Ghana by the thousands – even the hundreds of thousands – each country is allotted the same number of immigrant visas. Thus, under current processing times, an H-1b visa holder from India with a master’s degree in computer science will not be eligible to file her application for a green card until 9 years after her employer initiates the process. This lengthy waiting period, coupled with the difficulty of remaining in valid H-1b or other temporary status in the interim, compels many foreign students to contribute their intellectual capital to economies abroad.

As President Obama stated in a January address on immigration, “Right now, there are brilliant students from all over the world sitting in classrooms at our top universities. They’re earning degrees in the fields of the future, like engineering and computer science. But once they finish school, once they earn that diploma, there’s a good chance they’ll have to leave our country.”

In recent years, Congress has failed to act on proposals to counteract this situation. 2013 may be different. A bipartisan group of Senators laid out a comprehensive immigration reform package alongside President Obama’s principles of reform. What has changed? Republicans acknowledge the need for Latino support at the polls. Business and labor leaders are looking for common ground. Employers and political leaders recognize the economic benefits of streamlining immigration procedures to retain foreign talent in the U.S., particularly graduates in the science, technology, engineering and math (“STEM”) fields. Without such measures, the U.S. risks a “reverse brain drain” or talent outflow.

Many current proposals will affect international students studying in the U.S. The Senate framework would award a green card to immigrants who earn U.S. graduate degrees in STEM fields, a measure the President supports. Some senators have introduced the Immigration Innovation Act of 2013, which proposes to raise the cap on H-1b visas from 65,000 to 115,000 as well as remove the quota on visas for science and technology workers with advanced degrees. The Senate blueprint also envisions reducing backlogs in family and employment-based visa categories, which will reduce uncertainty and allow more mobility in the workplace.

On the theory that immigration reform can spur economic progress and provide jobs, rather than reduce the number of jobs available to Americans, which some opponents fear, President Obama has proposed increasing visa numbers, creating “start-up” visas for entrepreneurs, and creating a new visa category for highly skilled immigrants to work in federal laboratories on national security programs if they pass a background check.

The DREAM Act might be enacted as part of comprehensive immigration reform or as a separate measure. This legislation would offer a path to citizenship for undocumented immigrants who were brought to the United States as children, contingent on a clean record, graduation from high school in the U.S., and attendance in college or military service. The Obama administration’s current “Deferred Action” program, or DACA, does benefit some undocumented students who want to attend college but does not provide a permanent path to residence at this time.

In sum, international students applying for admission to a U.S college, or currently here on a student or temporary visa, should continue to watch and read the news to learn about developments in the immigration field or consult a qualified attorney for more information.

National interest waiver case approval for scholar of organized crime

One of the most challenging areas of immigration law is attempting to obtain legal permanent residence on the basis of a national interest waiver.  The national interest waiver category offers a quicker route to a green card than most other employment-based categories, because if the applicant’s area of expertise is deemed important enough to the “national interest” of the United States, then USCIS waives the usual requirement of labor certification (i.e., advertising the position according to regulations, interviewing American candidates, applying for certirfication through Department of Labor, etc.).  In addition, the applicant must possess an advanced degree or have exceptional ability.  USCIS often requests a great deal of proof that the benefits of the applicant’s work are not just localized, and that they benefit the country on a national scale.  This can be quite difficult to demonstrate even with work that has seemingly obviously benefits such as research taking place at one hospital or location.

Recently USCIS approved one of our office’s cases in a gratifying decision recognizing the true meaning of the national interest waiver.  The applicant is from an Eastern European country and a young tenure-track professor at a public university.  Her research explores cultural norms and codes among various transnational Balkan organized crime groups.  Because much of her earlier research focused on Europe,  USCIS questioned the national benefit of her work.  Our office showed the international and national scope of these groups’ actions and the effects of their criminal behavior on the national economy.  We showed also that the benefits from the applicant’s work (research and teaching) contributed greatly to the education system, the economy, and greater national safety.  In addition, we showed that various agencies in the U.S. government have made it a priority to fight these organized criminal groups, indicating that there is governmental interest in her work.

This is the first national interest waiver awarded to an academic at this particular institution and is an important indicator of the high level of the professor’s qualifications and importance of her field of expertise.

Immigration Decision in Favor of Artists and Performers

A recent decision by USCIS recognizes that fusion or hybrid music can be “culturally unique” and therefore form the basis for P visa eligibility. See: http://usnews.msnbc.msn.com/_news/2012/05/17/11735665-immigration-decision-could-make-it-easier-for-foreign-fusion-bands-to-play-in-us?lite for an interesting article about a South American klezmer group. This decision may have some relevance for showing the uniqueness of a particular field for extraordinary ability cases (EB-1).

Extraordinary Ability Green Cards: Proof of extraordinary ability

How does someone prove he or she has “extraordinary ability” in a particular field?
The United States Citizenship and Immigration Service (USCIS) has set out several basic criteria an applicant must fulfill in order to be eligible.

The most often-cited criterion for extraordinary ability qualification is receipt of a major international award.  For example, if you have received  Nobel Prize, you will qualify for an EB-1 classification! But if you have not… don’t panic.   An applicant can supply alternative evidence of EB-1(A) classification.  If you look at the list below and can satisfy at least 3 of the criteria, you may qualify for EB-1, although the evidence itself must be persuasive and strong.  Also, if these criteria do not apply to you, you may submit  “other comparable evidence” of your ability.

1. Receipt of lesser nationally or internationally recognized prizes or awards for  excellence.
2. Membership in associations in the field which demand outstanding achievement of  their members;
3. Published material about the alien in professional or major trade publications or other major media;
4. Evidence that the alien has judged the work of others, either individually or on a panel;
5. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
6. Evidence of the alien’s authorship of scholarly articles in professional or  major trade publications or other major media;
7. Evidence that the alien’s work has been displayed at artistic exhibitions or showcases;
8. Performance of a leading or critical role in distinguished organizations;
9. Evidence that the alien commands a high salary or other significantly high remuneration in relation to others in the field;
10. Evidence of commercial successes in the performing arts.

The Kazarian decision and Extraordinary Ability petitions

In my 2010 article “Limits to Arbitrary Agency Action,” I analyzed the 9th Circuit’s decision in Kazarian v. USCIS regarding evidentiary standards in visa petitions based on a claim of the alien’s extraordinary ability (New Jersey Law Journal, Vol. 200, No. 6, May 10, 2010).  Following that decision, the agency issued a Policy Memorandum titled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions: Revisions to the Adjudicator’s Field Manual (AFM),”  Chapter 22.2, AFM Update AD11-14 (Dec. 22, 2010).

That Policy Memorandum has been criticized by some in the industry for failing to provide accurate guidance or consistency in the EB-1 Extraordinary Ability determinations, and for potentially enshrining into the adjudication process extra-regulatory evidentiary standards that the Kazarian court had sought to prevent.

Thus, the USCIS’s Office of the Citizenship and Immigration Services Ombudsman recently issued a report that tries to address some of these concerns.  What does this report say?

Basically, the Ombudsman issued three recommendations.  These are:

1.  Engage in formal rulemaking to clarify the regulatory standard, and, if desired, explicitly incorporate a final merits determination into the regulations;

2. Provide the public with guidance on the application of a final merits determination; and

3. Give adjudicating officers more training and direction on the “proper application of preponderance of the evidence standard.”

Officers should also be encouraged to continue making sure that RFEs are in fact responsive to the petition that has been submitted so that they are not asking for material or substantiation that has already been supplied.

Until such issues are resolved it is important to continue to provide USCIS with clear and persuasive evidence of as many regulatory criteria as are applicable to a particular case, and to demonstrate the significance of each accomplishment, not just that the accomplishment exists.  In order to put forth a persuasive Extraordinary Ability petition, especially in light of the uncertain legacy of Kazarian, applicants should attempt to engage law firm assistance that can provide experienced, creative and ethical counsel at all times.

Extraordinary Ability and Social Media Experts

While it’s not easy to gain approval for any visa petition based on extraordinary ability, and applicants should be realistic before deciding whether to apply for a green card on this basis, it is also important to think outside the box.  While many applicants base their petitions on their extraordinary ability in the arts or sciences, it is possible also to apply based on unusually impressive business skills, which may include proficiency and innovation in the area of social media.  The communications world is changing so rapidly and there are so many alien innovators and entrepeneurs whose tech savvy with social media can potentially support an EB-1 application.  For example, someone who has invented an app that is taking the country by storm, or that performs a unique and “how did I live without it?” function, is certainly making an original contribution that others can attest to in a letter of reference.  Of course, it is always important to satisfy at least 3 out of the 10 criteria that USCIS lists for eligibility, such as winning an international or major national prize, participating as a judge of others’ work, etc.  But the EB-1 category is also meant to be somewhat flexible, and proof of any other comparable evidence, if compelling enough, is important to consider.  Just make sure your application doesn’t assume that adjudicators are familiar with the social media world.  It’s up to you (and your attorney) to show the government how your contribution to social media is changing the world.