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A foreign national epidemiologist petitioned USCIS for an immigrant petition, filing a petition herself, without an employer.  She argued that her work is important for the national interest of the U.S. and the USCIS should not require her to have a job offer.  USCIS disagreed and the epidemiologist appealed to the Administrative Appeals Office (“AAO”). The AAO dismissed the epidemiologist’s appeal, agreeing with USCIS’s decision.

One way a foreign national living in Chicago or elsewhere can become a permanent resident is through employment, if a U.S. employer petitions for the foreign national.  To sponsor a foreign worker for permanent residence, a U.S. employer must go through an expensive, complicated, and lengthy application process to the Department of Labor for a labor certification.  The Department of Labor must certify that the employer has tested the U.S. market and that there are no U.S. workers that are willing, able, qualified, and available to take this employer’s position.  Only then can an employer petition USCIS for an immigrant petition on behalf of a foreign worker.

The labor certification process is important to the national interest.  It ensures that a foreign national does not displace an available U.S. worker that is minimally qualified for the job.  In certain unique cases where a foreign national’s work is very important for the U.S., testing the U.S. market and seeking a labor certification may not be in the national interest.  In such cases, a foreign national can file his or her own petition and seek a waiver of the job offer requirement and the labor certification process.   We call this “a petition for a national interest waiver.”

The Administrative Appeals Office that reviews decisions of USCIS, has outlined an analytical framework for USCIS in Matter of Dhanasar, 26 I. & N. Dec. 884 (AAO 2016). USCIS applies this framework on a case by case basis to decide if it should waive the labor certification process for an alien worker as a matter of national interest.

The Chicago law firm of Zneimer & Zneimer is tracking decisions under the NIW framework and is providing a summary of decisions applying Matter of Dhanasar.  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Petitioner’s Claim: The alien was an epidemiologist and a program officer in an HIV/STD prevention program focused on expanding HIV prevention.  The alien worked in data management, monitoring HIV testing grantees, and evaluating their effectiveness at providing preventive services.  The petitioner also tracked trends of HIV epidemic, helping her organization to direct efforts Continue reading →

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The Chicago law office of Zneimer & Zneimer PC reminds interested immigrants that the Diversity Lottery  DV-2019 begins on Tuesday, October 3, 2017 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and ends on Tuesday, November 7, 2017 at 12:00 noon, Eastern Standard Time (EST) (GMT-4).   There is no filing fee to participate in the lottery.

Bear in mind that participating in the DV Lottery demonstrates immigrant intent, and can affect future eligibility for non-immigrant visa that does not allow an immigrant intent.  In addition, even if selected for the lottery, a person needs to be admissible to the United States in order to obtain permanent residency.  People who are or have been in the United States out of status or unlawfully present, should contact an attorney to determine whether they may be inadmissible to the United States and whether there is a waiver of inadmissibility.

For DV-2019, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years:
Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  There are exceptions, so check with an attorney.

Instructions for the DV Lottery have been published by the State Department. Continue reading →

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The Chicago attorneys of Zneimer & Zneimer PC reviewed the final regulations entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398-01, that the that the Department of Homeland Security published on November 18, 2016.  These regulations interpreted several employment-based sections of the Immigration and Nationality Act, including those regulating employment of non-immigrant workers.

The updated regulations made some changes to the rules applicable to E–1, E–2, E–3, H–1B, L–1, or TN.   They added up to 10 days of admission before the authorized work period begins, and up to 10 days of grace period after the work-authorized period ends.  During these extra 10 days on both ends, the foreign worker may not work.

These extra days at the end of the authorized work period will be helpful to foreign workers and their families if they wish to leave the United States.  However, Chicago attorney Sofia Zneimer cautions, that for workers and employers who wish to continue their work relationship in the United States, these additional days may cause issues if not properly monitored.

One thing to keep in mind is that these extra 10 days are not work authorized.  This means that the employee will have an I-94 card that will include the additional grace period even though this period will not be work-authorized.  Thus, unless both the foreign worker and the HR mangers overseeing the I-9s for their companies are mindful of this added grace period,  they both can get in trouble, if the foreign workers inadvertently works during the grace period relying solely on the expiration of the foreign worker’s I-94.   It is important to remember that the the top of the I-797 Approval Notice will reflect the actual work-authorized period, and not the I-94.  An employee relying solely on the expiration of the I-94, who works during these extra days without authorization, can fall out of status for working without authorization.  By permitting unauthorized work during the grace period, the employer will violate the immigration law subjecting itself to fines and penalties.

Important points for HR managers and foreign workers: Continue reading →

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Our law firm often works with foreign national whose work is in the national interest of the United States.  The lawyers of  Zneimer & Zneimer are tracking decisions under the new NIW framework under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).

The framework imposes three prongs on petitioners who claim that they should be allowed to immigrate to the United States based on a proposed endeavor that would be in the national interest of the United States:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).

The most recent decision came on appeal from a denial from USCIS Texas Service Center in Matter of D-D-P (AAO May 25, 2017).  In Matter of D-D-P, an entrepreneur lost his bid to qualify for a national interest waiver before USCIS.  He appealed to the Administrative Appeals Office (“AAO”).

The AAO did not reach the merits of the entrepreneur’s claim that he is eligible for a national interest waiver and did not reach the three prongs of Matter of Dhanasar.  The businessman lost his case on a threshold matter because the AAO found that he was neither a member of the professions holding advance degree or their equivalent, nor that he had exceptional abilities.  Thus, although this AAO decision did not discuss the new framework, the decision is still an important reminder that there are threshold issues that foreign nationals must meet before they can make separate showing that a waiver of the job offer requirement is in the national interest. We outlined in more detail the requirements and the framework in our earlier blog.

Petitioner’s Claim:  In this case the alien argued that he was an individual of exceptional abilities in the business world.  In the initial filing, the alien stated that he was a “chief executive/entrepreneur” and that he intended to “use his broad experience as a successful entrepreneur to create business opportunities for himself and US workers. He will transfer his wealth of knowledge of developing business in the harshest of climates to the US environment.”   He claimed that he planned to “replicate his success in Nigeria to US markets with positive effect on employment and renewable energy systems.”  The petitioner claimed that he “has created five extremely successful businesses in information and communication technology, renewable energy systems, online travel and reservation systems, turnaround innovation and business counseling.” He claimed that through these companies he had provided “nine billion” dollars of energy services to the “highest level of government and the private sector.” Continue reading →

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The Chicago immigration attorneys at Zneimer & Zneimer reviewed today’s United States Supreme Court decision with regard to children born abroad to unwed parents.  Prior to today’s decision, the statute provided for different requirements how unwed mothers and unwed fathers can transmit citizenship to a child born abroad.  The United States Supreme Court struck down the different requirements on equal protection grounds.

Under the challenged statute, unwed mothers could transmit U.S. citizenship to a child born abroad if the mother has been physically present in the United States or one of the outlying possessions for a continuous period of one year.  On the other hand, an unwed father under the law at the time of the Respondent’s birth, could transmit citizenship if the father had been physically present in the United States for ten years, five of which over the age of 14.  The father had to meet additional requirements that were not at issue in the case.

The case involved Luis Ramón Morales-Santana, born in Jamaica, who had lived in the United States since he was 13 years old.  The U.S. government had placed him in the process of removal from the United States because he had committed certain crimes.  The Respondent asserted that the government could not remove him because he was a U.S. citizen at birth.  The Respondent claimed to be a U.S. citizen based on the U. S. citizenship of his biological father, José Morales.   His father had moved to the Dominican Republic only 20 days before he turned 19, and was 20 days short of the five years residence after the age of 14 requirement at the time, to transmit U.S. citizenship.  The father had met all other requirements to transmit citizenship to his son, except the residence requirement.  At the time the case made its way up the court system, the father had died and the Supreme Court found that the Respondent has the right to assert the equal protection claim on behalf of his father.

The Respondent moved to reopen the removal proceedings to assert the claim to U.S. citizenship.  The Immigration Judge denied the motion, and the Board of Immigration affirmed.  The immigration judge denied his claim and ordered the Respondent removed.  The Second Circuit Court of Appeals reversed, and held that the different treatment of unwed mothers and fathers violates equal protection.  The Second Circuit held that Luis Ramón Morales-Santana derived U.S. citizenship from his father using the requirement for unwed mothers of one year continuous physical residence, instead of ten years, five of which over the age of 14 applicable to unwed fathers.

The government petitioned the United States Supreme Court for certiorari. The U.S. Supreme Court agreed with the Second Circuit that the disparate treatment of unwed mothers and unwed fathers violates equal protection of the U.S. constitution.  However, the Supreme Court disagreed that the shorter period should apply.  Rather, the Court determined that the longer period should apply to both.

The Court stated: Continue reading →

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The Chicago law firm of Zneimer & Zneimer is tracking decisions under the new NIW framework and is providing a summary of decisions applying Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016)

In  a recent appeal from a national interest waiver denial issued by the Nebraska Service Center, the AAO determined that a physician and cardiology researcher did not meet the second and third prong of the National Interest Waiver framework that the AAO announced in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Petitioner’s Claim: The alien was pursuing postgraduate medical training as a general cardiology fellow in a one year fellowship.  He claimed that his clinical work would have an effect “on the health care system of the United States as a whole” and that his “medical research is having a widespread impact on the quality of medical care across the United States.”  He treated and did research on a “wide range of heart conditions, including systolic heart failure.”  Proposed research endeavor was to understand unique heart conditions and identify proper methods of diagnosis and treatment.

Continue reading →

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The Chicago immigration lawyers of Zneimer & Zneimer is following  National Interest Waiver  decisions  under the new AAO network under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016) and is providing summaries of decisions applying the facts to the new framework.

In a recent appellate decision following a denial of a national interest waiver by the Texas Service Center, the AAO determined that a University Instructor and Multicultural Education Researcher failed to qualify for a National Interest Waiver as she did not all three prongs of the  National Interest Waiver framework that the AAO announced in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Petitioner’s Claim: The alien is an expert in multicultural education who seeks to continue her research in “improving educational practices for minority populations,” focused “more on the application and teaching of the integration of culturally and linguistically appropriate approaches and implementations in pedagogy and classroom practices.”  She claimed that the work has “direct and tangible applications in both public schools and in educational methods and research.”

Evidence presented: PhD in curriculum and instruction; Two Masters Degree: in Sociology and in Anthropology.  Experience in teaching online anthropology courses as an associate faculty member;  Appointments in the department of chemistry and biochemistry teaching college classes (Chemistry, General Sociology, Race, Class, and Gender, Social Physiology, and Cross-Cultural Perspectives).  Research articles, evidence of participation in academic conferences, alumni and honor society membership, graduate assistantships,  teaching evaluations; Evidence of downloads  PhD research, profile page, a copy of a 2016 book, webpage showing that the book is available for purchase, an invoice that 5 books have been sold.  Evidence that she had drafted another book which has been submitted for publication; Letters from a professor emeritus, explaining that increasing diversity in US classrooms is “requiring teacher candidates to acquire competencies in addressing the needs of their student population;” A letter addressing how the research will develop new training methodologies to equip teachers with skills that make them “culturally competent to teach in diverse settings.”  Other letters discuss how the research concerning the learning needs of CLD students will help ensure that they have equitable access to quality education.  Some of the articles and the book were published after the I-140 was submitted. Continue reading →

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In Matter of C-K-D-, 2017 WL 2224919 (TSC May 2, 2017) a Teacher and Researcher in Autism Spectrum Disorders failed to qualify for a National Interest Waiver as the petitioner did not meet all three prongs of Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).  We described the national interest waiver framework in an earlier blog.

Petitioner’s Claim: Alien is an innovative teacher and educational program developer for students with autism spectrum disorder.   The alien uses expertise for the development and expansion of novel teaching and assessment methods of ASD to increase the knowledge base and understanding of educational approaches and curricula that engender improvement in the verbal, cognitive, and behavioral skills of children along the autism spectrum.  Her research in mirror intervention and self-awareness in students with ASD is seminal and groundbreaking.

Evidence presented: Curriculum Vitae, showing M.S. in education; Experience as public school teacher, graduate assistant and internship coordinator; Pursuing a doctorate degree in exceptional education PhD program; Evidence of published work, conference presentations, and professional membership; Reference letters discussing educational background, teaching experience, and research projects; Part of a group that helped revise training program; Receipt of special education grant, invitation to publish and present research.  Journal articles, conference presentations, Letters from faculty discussing research concerning ASD students, and research’s potential benefits to the nation’s educational system as the results are disseminated to others in the field through education journals and conferences; Some of the evidence was not available until after the I-140 was filed and was submitted as a response to RFE.  Continue reading →

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We are tracking the development of the national interest waiver law since the seminal decision, Matter of Dhanasar.

  1. Introduction

Congress has made available a limited number of immigrant visas to skilled and unskilled foreign workers who want to take a job in the U.S. that local workers do not want or are unqualified to fill.  Such foreign workers are not admissible to the United States, unless their potential employer offers them a job at a wage commensurate with the location, occupation, and the duties of the position, and obtains a labor certification from the Department of Labor that the job is in a shortage occupation.[i]  Before the Department of Labor certifies the job as a shortage occupation for which there are not interested or qualified U.S. workers, the employer must prove that it had tested the U.S. market and that it could not find U.S. workers who are able, willing, qualified,[ii] or available to take the job.  As part of the process, the employer must prove that the employment of foreign workers “will not adversely affect the wages and working conditions of workers in the United States similarly employed.”[iii]

The labor certification process protects jobs for U.S. workers who have the same minimum qualifications, and is in the national interest.  The Attorney General can waive the job offer and the labor certification requirement only in a case where the Attorney General finds that such employment is in the national interest of the United States and outweighs the national interest of protecting U.S. jobs for U.S. workers.  The burden is on the foreign worker to show why granting such a waiver is more important for the national interest than protecting the jobs for U.S. workers who may be willing, able, qualified, and available.

The national interest waiver is only available to “members of the professions holding advanced degrees or their equivalent” or to “people who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States .” [iv]  Because the labor certification process requires a job offer to the foreign worker, a foreign worker cannot self-petition, unless the worker seeks a national interest waiver.  As a threshold matter before seeking a national interest waiver, the worker must show that he or she is a member of the professions holding advance degree or their equivalent, or has exceptional abilities.  The petitioner then must make a separate showing that a waiver of the job offer requirement is in the national interest.

Not every person qualified to engage in a profession or a person of exceptional abilities is exempt from the requirement of a job offer based on national interest.  Nor is the intent of Congress to grant national interest waiver based on the importance of a profession alone.  In a recent decision, Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the Administrative Appeals Office outlined a new framework to apply in deciding whether a petitioner merits a national interest waiver.   The AAO has decided several cases under the new framework.  Review of these cases gives an idea of what the AAO considers as good, better, and best arguments.

This and following articles will review the application of the new framework to the facts of the recent decisions.

  1. The New Framework

Under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the petitioner must meet the following three prongs to establish that the request deserves a national interest waiver:

  • Step 1, description of the endeavor. The foreign national’s proposed endeavor has both substantial merit and national importance.  The petitioner can demonstrate merit “a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education”   An endeavor has a “national importance….because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.”  The impact is not confined in geographic terms but points to broader implications.  Id.  The agency considers the endeavor’s prospective impact.
  • Step 2, qualifications of the alien. The foreign national is well positioned to advance the proposed endeavor.  This prong “shifts the focus from the proposed endeavor to the foreign national.”  The petitioner must establish that the alien is “well positioned to advance the proposed endeavor.”    The agency considers factors, including but not limited to the individual’s education, skills, knowledge, and record of success in related or similar efforts; a model or plan for future activities; progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
  • Step 3, needs of the United States. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.  USCIS evaluates factors such as: whether, in light of the nature of the foreign national’s qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer, or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.  In each case, the factors, taken together must indicate that on balance it would be beneficial to the United States to waive the requirements of the job offer and thus of labor certification.

If these three elements are satisfied, “USCIS may approve the national interest waiver as a matter of discretion. “ Id.

Application of the new framework

 This article is first in a series reviewing the application of the new framework to the facts of recent AAO decisions.  We will examine the endeavors, qualifications, and the evidence that each petitioner presented and whether or not the showing was sufficient to secure a national interest waiver.  We will then try to identify what arguments and evidence work and what does not work.   Currently, there have been 21 AAO decisions discussing Matter of Dhanasar.  Based on review of these decisions, here is a general list of arguments that work and that do not.  Cases mainly failed on the “national importance” part of the first prong, and the “well positioned” prong: Continue reading →

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On December 12, 2016, The U.S. Department of Education announced that it will derecognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.  On March 15, 2017, the Student and Exchange Visitor Program (SEVP) began issuing notices to SEVP-certified schools accredited by ACICS who had not reported the loss of accreditation to the Department of Education as required by regulations.   ICE states that all schools that were accredited by ACICS  must update their Form I-17 to update its status with a new accreditor, additional information regarding specific programs, or withdraw from SEVP.

According to USCIS and ICE, the loss of recognition will have immediate effect on foreign nationals that are enrolled in English language study programs or are seeking 24-month STEM OPT extension from a school that was accredited by ACICS.

SEVP will not take any action against international students for 18 months from December 12, 2016, if the school is either withdrawn or voluntarily withdraws.  After 18 months the students will have 3 options: Continue reading →

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