A New Test for “National Interest Waiver” Cases (Dec. 2016)

The “National Interest Waiver” is a test for foreign nationals who are applying for permanent residence based on their work in their field of expertise, to determine if they may be approved for permanent residence on their own, without a job offer from a U.S. employer.   To qualify, the applicant, called a “self-petitioner,” must either be a “member of the professions holding an advanced degree” or an “alien of exceptional ability in the sciences, arts, or business.”   These are the baseline requirements for the “EB-2” category for permanent residence.   If the self-petitioner can meet these baseline EB-2 requirements, then he or she may apply for permanent residence under the “National Interest Waiver,” by proving that it would be in the “national interest” of the United States to waive, or set aside, the usual requirements of (a) job offer and (b) testing of the U.S. job market (“labor certification”). New “National Interest Waiver” requirements, under Matter of Dhanasar (December 2016) On December 27, 2016, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) reversed USCIS’s long-standing, problematic policy (see NYSDOT discussion, below) and announced a new analytical framework, or test, for the National Interest Waiver.  Restating the test as set out in the AAO decision, called Matter of Dhanasar: USCIS may grant a national interest waiver, if the petitioner demonstrates by a preponderance of the evidence [that is, that he or she more likely than not satisfies the requirements]: That the foreign national’s proposed endeavor has both substantial merit and national importance; and That the foreign national is well positioned to advance the proposed endeavor; and That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion [if the foreign national otherwise merits a favorable exercise of discretion]. Language in [brackets] has been added for clarification.  Boldface has been added for emphasis. Matter of Dhanasar involved an application by a researcher and educator in the field of aerospace engineering at a state university in North Carolina.  He showed that he intended to continue research into the design...

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The American Gateway for Entrepreneurs

Introduction:  I counsel entrepreneurs and investors as part of my immigration law practice, and I derive great satisfaction from finding creative, cost-effective solutions for my clients, whenever possible.  In this post I will review a few potentialUS visa options. US immigration law offers several alternatives to individuals and their families who wish to relocate to America. * Permanent residence – “EB-5″ program:  For investors with deep pockets($500,000 to $1 million), the EB-5 employment-creation visa for permanent residence offers a two-step program.  In my opinion it is an overly complicated and challenging option.  For example, it requires ongoing employment of at least 10 workers, in addition to the high-level initial investment. ———————————————————————————————————- * “L” visa for “Long-distance” transferees, and transition to permanent residence:  I consider it an intelligent, cost-effective alternative to “the EB-5” for foreign entrepreneurs small-business owners who are looking to expand, from existing and ongoing overseas operations, to a branch or subsidiary in the United States.  The “L-1” visa can offer a relatively direct, common-sense platform for the initial, “new office” stage, with renewal of the visa after successful operations in the first year, and then a transition to permanent residence.   In short, the L-1″ visa may provide a relatively affordable a for many entrepreneurs and smaller employers, and their employees.  Incidentally, “L” visa spouses are eligible for unrestricted, temporary work permits. ———————————————————————————————————- * “E” visa for “Entrepreneurial” investors and traders and employees, with limited access to permanent residence:  The key ingredient is a “treaty of commerce and navigation” between the United States and the individual’s home country, of which there are several dozen.  For example, the United States – United Kingdom treaty dates from 1815.  Click on this link for a listing of “treaty” countries for “E-1” (trader) and “E-2” (investor) visas:  https://travel.state.gov/content/visas/en/fees/treaty.html An “E” visa is requested directly through a US embassy or consulate, upon its registration and approval of the proposed American enterprise.  Generally a minimum investment of about $100,000 is required, but the law allows for flexibility, based upon the proportional capital needs of a start-up.  The “E” visa is renewable; however, the transition to permanent residence may be problematic, without the presence of a related foreign operation. “E” visa spouses are eligible for work permits in this visa category as well. ———————————————————————————————————- * Limited...

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In Search of ‘the Good Life’

“What is at stake is … how one should live one’s life.” – Plato “Life is not primarily a quest for pleasure … or a quest for power … but a quest for meaning.” – Rabbi Harold S. Kushner, from the foreword to Man’s Search for Meaning by Dr. Viktor L. Frankl “[T]rue happiness is something deeper than lucking into a beautiful state of affairs.  It’s the dignity of mastering the blessed gift of the mind.  It’s tranquility.  It’s an ability to bear up under the most difficult circumstances.  It’s the deeply satisfying sense of doing what we’re supposed to be doing.” – Scott Samuelson, The Deepest Human LIfe   “We shall not cease from exploration, / And the end of all our exploring / Will be to arrive where we started / And know the place for the first time.” T. S. Eliot, “Little...

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Reading the Tea Leaves … November and Beyond

The candidacy of Mr. Donald Trump, while hugely entertaining (or disturbing, depending on one’s point of view), is not likely to lead to the White House.  While Mr. Trump, as Ms. Palin before him, is undeniably charismatic, and offers appealingly simplistic answers to the world’s most complex issues, he will simply not be able to amass the broad base he needs for election to the presidency.   Assuming Mrs. Hillary Clinton is elected to the presidency, I believe that she (and husband Bill) will push for meaningful reform of the immigration laws of this country, and that she will be successful in working with the Congress to an infinitely higher degree than her well-intentioned but aloof predecessor. Looking beyond 2016:   We need a dramatic overhaul of the US work visa system. The biggest change would be to restore the pre-fiscal-year-2000 allowance for the “H-1B” work visa for professional-level positions, termed “specialty occupations.”  The current permitted annual allotment is roughly 40% (at best) of the earlier “cap” figure.  It is a shameful fact that this country offers university education to the world’s best young minds, but no stable employment beyond that.  We are creating our own “brain drain” and thus contributing to the competitiveness of the rest of the world’s economy Another glaring inadequacy of the work visa system is that there is virtually no accommodation for skilled worker positions.  Americans depend on undocumented labor to grow our food, mow our lawns, and care for our small children — in short to help us enjoy the lifestyle we so love.  There is nothing standing in the way of a fairer set of labor laws to recognize the value of these service-providers, except our politicians.  Progressive Republicans, who historically have been friendly to business and free-market principles, could take the initiative to create a visa category whereby employers could sponsor any worker of their choosing, following a process to test the labor market. Such is the system for permanent residence, but it presupposes that the individual is known to the employer and hence already legally employed.  This creates a Catch-22 for the skilled worker, since there is no such visa appropriate to skilled (or for that matter, unskilled) workers.  That inconsistency is typical of the...

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When an “Umbrella” Is a Visa … Is an Umbrella

“Come again?  Umbrella, visa … and just how does that work?” Stop.  Think creatively for a moment.  Pull yourself away from the gravitational pull of the linear, the written, the logical “real world.” Listen:  We are all at our best when we let our imaginations stretch their legs, run a little wild.  Switching over to right-brain mode, observing, allowing the mind to wander, and letting those “Aha!” moments just happen. Speaking personally (and professionally), I’ve learned that I thrive when I am in the creative side, the imaginative side, of practicing immigration law — the part that’s all about figuring out solutions to problems — and helping people overcome these challenges. I’ve found that an ability to “think in pictures” (acknowledgment to Dr. Temple Grandin) is pivotal in resolving tangled immigration-law issues.  Another advantage is having a white board and colored markers handy in a client consultation, to map out a visual strategy — and with pictorial aids, such as apples, hourglasses, safety nets, and yes, even umbrellas.  This is the simplest, most effective way I’ve found to convey the complexities of visa cases, in my years of practice in US immigration law.  I get smiles, nods of recognition, from my clients.  Nothing dull about it.  We have some fun. Getting back on point.  So, uh, why exactly an umbrella?   An umbrella, or parasol, is of course a form of protection from the elements.  It offers the person carrying the umbrella, and those squeezed in under its canopy, a safe and reasonably comfortable passage, with a minimum of inconvenience.  It is available for a fairly reasonable price and in a variety of sizes, styles and colors to suit its owner/user.  It is held over our heads right up until our arrival at the destination, just long enough to ensure our entrance.  Then, it is shaken and left to dry, ready for the next venture outdoors. A visa is similar, in some respects.  Passports stamped with visas allow for international travel,  Visas are available to qualified individuals who invest the time and resources — including the guidance and “due diligence” that competent immigration counsel can provide.  A visa offers assurance that the individual may board the international flight to a US destination.  Upon arrival at the airport,...

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How Is an Immigration Waiver like a “Monopoly” Card?

So your first question must be:  “What is an ‘immigration waiver’?”   Let me answer, in terms of what an immigration waiver does.  A waiver sets aside a legal obstacle to getting a visa, or to being allowed (“admitted”) into the United States, or to becoming a permanent resident (i.e., a “green card” holder). What kinds of “legal obstacles” are we talking about? The Immigration and Nationality Act (INA), the statute that forms the basis for the US immigration laws, lays down the ground rules for immigration benefits — who is eligible to apply for them, and who is disqualified from applying, and things that can get you disqualified.  These grounds for disqualification, or obstacles, are known as “grounds of inadmissibility.”  They are listed in section 212 of the INA.  They include criminal convictions, acts of immigration fraud and misrepresentations, health and safety dangers, drug violations, national security issues, and immigration violations. The INA allows, in some instances, an otherwise-disqualified foreign national to apply for a waiver of a ground of inadmissibility.  These waivers are often premised on the basis of the disproportionate harm to a close US relative that will result, if the waiver is not approved. In instances where the foreign national is attempting to apply for permanent residence, he or she must nearly always demonstrate some degree of unusual hardship to a “qualifying relative” who is a US citizen or permanent relative. For example, the foreign spouse of a US citizen, who entered the United States illegally, is generally prevented or “barred” for 10 years from applying for permanent residence — yes, despite being married and even having US citizen children —  and the 10 year “penalty” period must be spent living outside the United States.   Section 212(a)(9) of the INA provides, however, that the US immigration authorities have discretion to set aside, or waive, this penalty, based on the anticipated “extreme hardship” that the US citizen spouse will face, if the 10-year bar were enforced.  The US spouse must demonstrate such hardship in terms of two scenarios:  (1) If he or she were to remain in the United States for the 10 years and (2) if he or she were to join the foreign spouse and wait out the 10...

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