“July 2012 Visa Bulletin:  Updates & Counterstrategies”

Victoria Chen, J.D., Esq.

 

Over the years, we at Chen Immigration Law Associates have a formed deep understanding of the volatility surrounding the immigration market and the related implications that come with regulatory alterations in policy and mandates made the U.S. government and its subsidiary agencies. These changes, albeit frustrating at times, are inherently tied to the inevitably changing global economy (especially in the United States), immigration needs, and visa demands, which affect the overall immigration climate and the prospective future of our valued clientele. Nevertheless, just as we monitor and address each client’s case differently, we are constantly following all pertinent changes in policy in order to develop an effective counterstrategy for visa approval and client satisfaction.  Our unique comprehension and proactive business acumen allows us to readily adapt and realize the hidden opportunity in each change in policy.  To demonstrate such, we have provided updated summary of the policy changes below, while providing you with our plan and recommendations for those most affected by this change in policy.

 

July 2012 Visa Bulletin

 

On June 8, 2012, the U.S. Department of State released the Visa Bulletin for July 2012 (http://travel.state.gov/pdf/visabulletin/visabulletin_July2012.pdf) stating the availability (‘Current – C’ or ‘Unavailable – U’) status of immigrant visas (permanent residency) under the first through fifth preferences of employment-based visas.  The most notable change in policy was made to the availability status of second-preference employment-based visas (EB-2) for immigrants from the Rest of the World (ROW – not including China & India).  Likewise, it is important to note that immigrant visas for Chinese and Indian foreign nationals remained unchanged – still listed as unavailable as of the date of the bulletin.

 

Herein, the priority dates (cut-off dates for ‘Current’ petitions) for foreign nationals from the ROW, were changed from ‘Current’ (available for any future filing date) to January 1, 2009 (available for any petition filed on or before January 1, 2009).  In other words, this means that any petition filed under the EB-2 category (‘Advanced Degree Professional’ or ‘Alien of Extraordinary Ability’) cannot be used to file an I-485 (change of residency status to permanent) unless the petition was filed on or before January 1, 2009.  Obviously this causes concern for those who were previously planning on petitioning for an EB-2 approval, because it raises doubt in the purpose or benefit of applying for this category.  We understand your concern and hope that the subsequent suggestions and information will aid in your future immigration decisions and professional objectives.

 

 

Update and Projections Surrounding 2012 Visa Bulletin

 

That being said, on June 19, 2012, a representative from the American Immigration Lawyers Association and Charlie Oppenheim, Chief of Visa Control and Reporting at the U.S. Department of State met to discuss the current visa demands in employment-based immigration preference categories, and to discuss the predictions surrounding future changes to those made in the July 2012 Visa Bulletin.  In regards to the critical change in EB-2 policy, the most important prediction made was that in October 2012, the beginning of Fiscal Year 2013 (FY2013), the EB-2 petitions for Mexico, Philippines, and the ROW will again retain ‘Current’ availability status, effectively returning the policy to its standing prior to July 1, 2012.    This means that petitioners will again be able to file for I-485 immediately following petition approval.

 

Additionally significant for those from China and India, the discussers predicted that cut-off dates will move forward in the first two quarters of FY2013 to the defined dates of August or September of 2007.  While this is more likely to occur for China rather than India, the discussers noted this will only occur if the Visa Office within the Department of State is convinced that the demand for the rest of FY2013 (third and fourth quarters) will be relatively less than in previous years.  As there have already been 17,000 EB-2 cases in total (including China and India) filed since January 1, 2009, this definitely has caused a backlog in the Visa Office, and thus this has become the primary concern for adjudicators and regulatory agencies.  The latent concern rests upon the prospective amount of open cases – those either in the adjudication process or unused (no I-485 submitted).

 

Therefore, although this news is projective by nature, it is still highly authoritative and reliable as it comes from the Chief of the Visa Office at the Department of State, the head officer charged with making these tough immigration decisions.  On that note, it is important to understand that economic confidence in U.S. businesses is associated with the relative trust in the U.S. government, which is turn directly related to immigrant visa supply and demand.  Due to the upcoming presidential election (November 2012), many foreign companies and entities may wait for the results to the election prior to analyzing the corresponding implications of the election.  These analyses will in turn affect the amount of foreign capital invested into U.S. commerce and the number of foreign nationals wishing to attend U.S. universities and institutions.

 

Ultimately, these individual and cooperative decisions directly impact the influx of immigrant visa petitions and need for immigrant visas for various areas of arts, science, and business.  Nonetheless, it is important now more than ever to do everything possible to catalogue your achievements, and prepare these materials for the unexpected.  For this reason, we have divided our suggestions accordingly, and recommend that you read each strategy before deciding which route to pursue.

Option 1:  Strengthening Your Case

        This strategic option, albeit somewhat evident, is a highly underrated and under-pursued strategy.  In fact, many clients are either uninterested or unwilling to consider this option.  Clearly this is not an option for some foreign nationals whom must apply to acquire residency prior to non-immigrant visa expiration or for some other reason.  However, this strategy, while longer in process from retaining an attorney to approval, is always valuable in bolstering one’s chances for case approval.  Furthermore, this strategy in no way implies that one must sit idle and wait before seeking representation or preparing the petition package for submission.  On the contrary, through this route, you may immediately seek representation and begin the petition process; and in light of the lengthy process from petition filing to petition approval (in many cases around six months), this strategy does not add much time to the process, all things considered. We at Chen Immigration Law Associates have constantly helped clients strengthen their credentials by providing critical advice, guidelines and suggestions and finally have their cases approved under NIW and EB1A. The key is to follow our advice closely and build up your case step by step by working with us.

 

Moreover, the early stages of this strategy can be accomplished substantially with the help of an experienced attorney with the expertise of NIW and EB1A filings.  The early stages involve several critical yet rudimentary steps.  First, We at Chen Immigration Law Associates review our clients’ credentials, achievements, and professional contributions throughout their entire career.  We help clients repeatedly revise and update their resume or curriculum vitae, as all of the key pieces of information should be included in this document.  Similarly, the second step, equally if not more important, involves a collection of all documentation which may serve as evidence supporting the fact that each piece of information was indeed achieved and noted via official materials (i.e. award certificates and letters, peer review communications, citation database records, artwork portfolios, W-2 forms, membership letters, patent approvals, exhibition materials, etc.).  Without this crucial documentation, many claims may be questioned by Immigration Officers (IOs), and the petition may even result in a request for additional evidence (RFE) or denial letter, regardless of the strength of the case.  That is why we at Chen Immigration Law Associates communicate with clients on a regular basis after they start to work with us to make sure all the critical and valid exhibits and evidence are included in the petition package. Finally, throughout these first few steps, we sometimes come across information that were were previously unaware of or was unavailable at the time of free evaluation.

 

After your achievements have been adequately catalogued, evidenced, and organized, the relatively strong and weak areas of your case should become apparent; this is where the third step becomes essential.  The third step of this strategy is when we help clients identify items that can substantially strengthen their case.  Many of our clients do not realize the value of this step until after we have evaluated and/or compiled their petition package, and in most cases, many of these areas of improvement have a high “trade-off value” – they are quite easy to complete and add considerable value to the case.  Obviously this is trade-off value is the best indicator and most important factor in deciding whether an additional credential/achievement is worth pursuing or neglecting.  I have outlined several areas of improvement for exemplary purposes below:

 

1.  Awards – Investigate to see if there are any nationally or internationally-recognized awards (not grants) available in the field/industry of endeavor that you have either already received an invitation to apply for or merely qualify for, that you can apply for before filing your petition.  These awards serve as valuable objective evidence supporting the merit of you and your professional work.  While some awards are more valuable than others, any award that does not discriminate among professional level or years of service, is always an invaluable to the petition package.  For more information on nationally-recognized or internationally-recognized awards, see [INSERT AWARD ARTICLE LINK]

 

2.  Memberships – Investigate to see if there are any memberships requiring outstanding achievements in order to attain membership, for which you would qualify.  These may be higher levels of membership in organizations which you already hold membership or organizations which you could readily attain membership.  For example, if you already hold a membership in IEEE as an Associate or Senior Member, you may attempt to attain a Senior Level Membership (for those who are Associate Members) or Fellow Level Membership (for those who are Senior Members).  Likewise, if you are a practicing physician in the American College of Physicians, you may attempt to attain Fellow status as a F.A.C.P. designated physician, a membership which is highly sought but equally invaluable to petition approval.  Regardless of field/industry, there are copious amounts of memberships available for those who pursue them, and there is no doubt that prestigious memberships like those discussed above that hold significant weight and merit when compiling one’s petition package.  For more information on qualifying memberships, see [INSERT MEMBERSHIP ARTICLE LINK].

 

3.  Judicial Roles – You may have already performed a number of services as a reviewer to journals or organizations in the field, but this number seems to invariably be correlated with one’s level of expertise, in the eyes of other experts and IOs alike.  Thus, procuring additional reviewer experiences or even responding to those requests sitting dormant in one’s mailbox may turn out to be critical during the petition process.  In addition, even more noteworthy, are services as an editorial board member, Associate Editor, Editor-in-Chief, or affiliated positions.  Therefore, if you know of any opportunity to procure such roles or services, there is no time better now to seek out and obtain such roles/services.  Finally, the Administrative Appeals Organization (AAO), the organization which handles appeals to immigrant petitions and provides authoritative regulatory guidelines of IO practice, has repeatedly held that editorial-type services are most certainly evidence of one’s ascension to the top of the field of endeavor.

 

4.  Major Media Coverage – Many times our clients are knowledgeable of each piece of major media coverage to their work or expertise.  However in some cases, it is as simple as performing a Google Search of one’s name to find that there is this type of additional evidence available.  Similarly, most major media organizations will accept and review press release submissions, and consequently publish these press releases or write articles based on such if they deem the work appropriate for coverage.  In either case, media coverage always strengthen cases, as it also serves as evidentiary documentation of the significance of one’s work in the field/industry.  For more information on qualifying evidence for this major media coverage, see [INSERT MAJOR MEDIA ARTICLE LINK]

        5.  Employment Evidence – Believe it or not, one’s responsibilities, role, and wages in their employing or contracting organization can serve as supporting evidence for EB-2 approval. In fact, there are two separate criteria which address the significance of such evidence – one involving salary and one involving one’s lead and/or critical role in the organization.  For more information regarding the salary criterion and qualifying evidence see [INSERT SALARY ARTICLE LINK].  In regards to the latter criterion, any position that involves directing or leading an organization is typically a critical piece of evidence that goes unused and unrecognized.  Likewise, any roles/contributions that substantially impact the entire organization or even a specific branch of the entity can be valuable in developing optimal arguments for petition approval.  Therefore, it is important to document these roles/contributions, and seek out any additional means in which you can significantly benefit the organization.  Not to mention the fact that these contributions serve the dual purpose of strengthening your value to the organization as well as adding to your list of achievements in the field/industry.

 

Altogether, these merely represent a portion of the areas for improvement, but should be relatively easy to procure and catalogue in comparison to other areas of achievement/contribution.  And as aforementioned, this strategic option can be pursued regardless of Department of State regulatory statuses or one’s perceived standing in the process of petition filing.  Finally, while waiting to file or seek immigration representation, these tactics always serve to benefit one’s professional and immigration potential.

 

Option 2:  Alternate Visa Categories – EB-1(A) or EB-5

        For those who have either already catalogued their achievements or procured additional evidence to the best of their ability, and those who wish to file urgently, regardless of their stage of preparation, there are several other categorical opportunities for potential petition filing.

 

EB-1(A) – “Alien of Extraordinary Ability”

 

The first is somewhat conspicuous and involves filing under the non-sponsored first-preference employment-based immigrant visa category (EB-1A), which understandably operates under a higher standard of adjudication, and requires a higher level of expertise (“rise to the very small percentage at the top of the field of endeavor” and “sustained international acclaim”).  While not all foreign national applicants will qualify under this criterion, I have provided the corresponding regulatory criteria stipulated under this category, and a few examples of evidence for each that have qualified under this standard of law in our past experience.  If after this review, you feel that you have evidence qualifying under at least three of these categories, you may indeed be eligible for petition submission under this category, and your visa would be ‘Current’ under the present regulatory policies.

 

(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

 

– Georgia Cancer Coalition Distinguished Scholar Award

– PROMAXBDA Global Excellence Award

 

(ii) 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;

 

– Fellow, Institute of Electrical and Electronics Engineers (IEEE)

– Fellow, American College of Physicians (ACP)

– Associate Member, Visual Effects Society (VES)

 

(iii) 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. Such evidence shall include the title, date, and author of the material, and any necessary translation;

 

– Article in Wired

– Article in New York Times

 

(iv) 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;

 

– Service as a peer reviewer for at least 15 manuscripts for publication

– Service as an Editorial Board Member for the Journal of Biochemistry

 

(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

 

– Over 200 citations to research publications

– Commercialized products of professional work in corporate endeavors

 

(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

 

– At least two articles published in internationally-circulated field journals

(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;

 

– Work displayed in international film festivals

– Work displayed in Museum of Modern Art (MoMA)

 

(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

 

– Director of Pre-Orthodontics at a prestigious U.S. university

– Lead Consultant for an array of international business entities

 

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

 

– Cancer physician receiving over $500,000 per year from employing hospital

– Graphic Design Artist receiving over $100,000 per year from contracting organizations

 

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

 

– This criterion is restricted for those who have actually performed in successful commercial entertainment releases.  Therefore, it is relatively not claimed unless the client can prove that he/she is a highly profitable entertainer (e.g. singer, musician, actor/actress, etc.).  If you believe that you have qualifying evidence under this criterion, you may qualify for immediate EB-1(A) petition submission due to the overlapping nature of this criterion among other criterion, and the advantages that come from the rarity of this criterion claim.

 

Overall, the high standard of law of this visa category may deter most foreign nationals from applying under this preference; however, it may become a viable and alternate strategic option for those previously and exclusively planning on filing under the EB-2 visa category.

 

EB-5 – Immigrant Investor

 

        This visa category is a relatively new and untapped strategic option for our company; however, in light of the recent regulatory changes and our passion, deep-rooted understanding of immigration law and policy, and our command of foreign languages, we are in the process of offering this specialty petition filing opportunity.  That being said, there are a number of other law firms that specialize in this category, and depending on your qualifications and requests, we may or may not be able to take your case at this time.  Nevertheless, we have provided a brief outline below of the category and pertinent requirements for petition approval under this category.

 

U.S. Congress created this category in 1990 in order to provide an alternative means of economic stimulus in the national interest.  According to the USCIS, all qualifying EB-5 investors must invest in a new commercial enterprise which is defined as any sole proprietorship, partnership, holding company, joint venture, corporation, or business trust, which is both for-profit and fits into one of the following classifications:

 

1.  “Established after November 29, 1990, or

 

2.  Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or

 

3. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs”

 

In addition to these classification stipulations, the EB-5 treaty investor must: (1) create or preserve at least 10 full-time jobs for qualifying U.S. workers within the first two years of investment; and (2) generally invest at least $1 million U.S. dollars in qualifying investments, or invest at least $500,000 U.S. dollars in rural geographic area (city or town with a population of approximately 20,000) or area of high unemployment (a rate of at least 150 percent of the national average).

 

Due to the basic and plain language of these requirements, this criterion is comparatively easy to meet in terms of the standard of law/adjudication, yet it is easy to see the substantial capital required to qualify under this visa category.  Nevertheless, if you believe you qualify or have the intention of investing the required amount of capital, please feel free to immediately submit your case for evaluation to an appropriate representative agency, such as Chen Immigration Law Associates.

 

Option 3:  Multiple I-140  Filing

Another somewhat conspicuous option is to file concurrently, or simultaneously, under multiple visa categories.  Filing under multiple immigrant petition categories does not discount the weight of petitions filed under lower standards of law, and any combination of concurrent filings (e.g. EB-1 and EB-2, EB-2 and EB-5, etc.) does not disqualify you from receiving approval under a separate preference.  In fact, filing under two categories concurrently, such as EB-1 and EB-2 is a fairly common practice among petitioners and immigration attorneys.  This effectively serves as a form of insurance to the higher preference petition, and in cases where one visa category may not be ‘Current’ upon approval, this is a valuable and highly feasible tactic for visa approval.  Although you still must be able to provide qualifying evidence under both categories, the higher visa preference category petition may indeed be a weaker case for apparent reasons.

 

We hope that the above explanations, updates, and strategic options have eased your concerns in light of the 2012 July Visa Bulletin released by the U.S. Department of State, and welcome any inquiries into additional information or evaluations of your case materials.  We have one hundred percent confidence in our ability to assist you in the preparation and filing of an optimal petition package, and urge you to reach out to our firm and other qualified representatives to ensure the smooth filing and processing of your petition for immigrant status.

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

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With more than 16,000 EB-1A, EB-1B, EB-2 NIW and O-1 cases approved, we have first hand information on the manner in which the USCIS adjudicate I-140 cases. As the USCIS has constantly changed its adjudication standards for the EB-1A, EB-1B and EB-2 NIW categories, our firm's huge database of successful cases gives you unprecedented insight to USCIS adjudication trends. We carefully analyze the data for all of our cases and apply the results of our analyses toward giving our clients up-to-date advice and adapting our strategies such that we remain on par with the ever-shifting landscape of immigration law in the U.S. With us, you will always have access to important updates, strategies, and information so that you can make the most informed decisions about your case.

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With our exceedingly large number of successful petitions, no matter what credentials you have, no matter your background and field of expertise, no matter your visa status or nationality, chances are we have helped hundreds or even thousands of clients just like you. Our clients are usually impressed with how well we understand their research and work. Our insight and understanding stems from the fact that we have handled many cases with elements similar to yours already, and this helps us devise the best strategies for each individual petition.

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