US Immigration Visa Approval

EB-2 Visas – Permanent Residency through National Interest Waiver (NIW). A Case Study

Davies & Associates obtained an EB2 National Interest Waiver (NIW) approval for an Organizational/Industrial Psychologist from South Africa. The client had initially wanted another visa, but our immigration attorneys proposed NIW as the better route.

Our client is a highly experienced and inherently talented Organizational/Industrial Psychologist with an advanced degree in Organizational/Industrial Psychology and extensive experience in her field.

Industrial & Organizational Psychology

Industrial and organizational psychology (“I/O psychology”), which is also known as occupational psychology, is an applied practice within the multi-discipline and esoteric field of psychology.  It is the science of human behavior relating to work and applies psychological theories and principles to organizations and individuals in their place of work as well as the individual’s work life in a more general manner. I/O psychologists are trained in the science-practitioner model.  They contribute to an organization’s success by improving the performance, motivation, job satisfaction, and occupational safety and health as well as to the overall health and well-being of its employees.  An I/O psychologist conducts research on employees’ behaviors and attitudes, and how they can be improved through hiring practices, training programs, feedback, and management systems.

How did we obtain the NIW?

D&A successfully presented the client’s outstanding body of work in the field and demonstrated how she meets the rigorous criteria for NIW classification. Although the jobs that qualify for a National Interest Waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation.

Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Work.

What is the National Interest Waiver (NIW)?

The NIW (National Interest Waiver) is the third subcategory of the second-preference employment-based visa category (EB2 visa). Employment-based visas – anything with the prefix “EB” – are immigrant visas in that they offer permanent residency / Green Card.

In the NIW category, an applicant can request that labor certification be waived because it is in the US national interest to do so (the other EB-2 categories require labor certification). People working in any industry could apply for NIW, but the applicant should be able to demonstrate their role is in the national interest. This makes it especially popular for people in science and healthcare.

Other EB2 Visa Subcategories

The two other subcategories for EB-2 are “Advanced Degree” – anyone with an advanced degree plus at least five years of credible work experience – and “Exceptional Ability”. This is for people who have exceptional ability in the arts, sciences, or business. In this regard it is similar to the EB-1A category for people with extraordinary ability and the EB-1C category for international managers and executives. Unlike the NIW subcategory, these two subcategories do require labor certification. 

The client initially approached Davies & Associates with another visa category in mind and our team was able to recommend the EB-2 route instead. This highlights the importance of engaging with an immigration attorney early in the process. Our team offers an initial free consultation to prospective clients as part of this determination process.

Contact us to request your appointment.


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


November Visa Bulletin Analysis for EB 5 Investor Visa

January Visa Bulletin Analysis for EB-5 and Employment-Based Visas


The U.S. Department of State’s January Visa bulletin shows very little change since our previous analysis. In the EB-5 immigrant investor visa category, only China and Vietnam continue to face delays. There has been no movement in the priority dates for EB-5 applicants born in China and only very slight progress for Vietnam with a revised Final Action Date of September 15, 2017.

India continues to remain “current”, meaning Indian EB-5 applicants are still no longer subject to retrogression delays. Yet, this could change. Our firm is seeing a recovery in demand following the initial “sticker shock” of the increased EB-5 investment amounts in November 2019.


Understanding Priority Dates

The date referred to in the visa bulletin is a “priority date”. This is the date that the US Citizenship and Immigration Services receives your initial EB-5 petition (form I-526).

If your country of birth is not listed in the visa bulletin or it is listed with a “C” next to it (meaning current), this means there is no waiting list for people born in your country and your application can proceed immediately.

If there is a date next to the country in which you were born, you will need to wait until your priority date becomes current. That means waiting until your priority date is before the date listed in the visa bulletin.

So this month, for EB-5 we only saw very slight movement in the Final Action Date associated with Vietnam. It moved from September 1, 2017 in the December 2020 visa bulletin to September 15, 2017 in the most recent one. This means there is expected to be a visa available to any EB-5 investor from Vietnam with a priority date in this two week window.


Final Action Date vs Dates for Filing

The visa bulletin has two tables associated with EB-5 and other employment-based visa categories. This is because they are signalling two different things to applicants.

One relates to “Final Action Dates”, which is when there is expected to be a visa available to people born in that particular country. The other table is the “Date for Filing”, which is when you can submit a visa application to the National Visa Center, even though there might not yet be a visa available. For applicants already inside the US making an “Adjustment of Status” (AOS), this may have implications for your rights to work.

The Date for Filing remains current for all countries except China. The Date for Filing for China-born applicants has not moved this month.


Final Action Dates Table

Note: EB-5 is – as the name suggests – the fifth of five employment-based immigrant visa category


Date for Filing Table

Understanding Waiting Lists

The reason some countries are subject to a waiting list is because these employment-based immigrant visa categories are subject to an annual per-country quota. In terms of EB-5 this is just over 700 visas per country per year, determined by a person’s citizenship at birth rather than any subsequent changes to citizenship.

When demand exceeds supply, countries are subject to a waiting list. Priority dates can sometimes cause confusion, especially as they can move backwards as well as forwards. This happens partly because it can be difficult to predict the exact number of people in the queue and much relies on a series of assumptions based upon past averages.

The number of applications is not equal to the number of visas / Green Cards. A single EB-5 visa application can cover not just the applicant, but a spouse, and children under the age of 21 – which means multiple visas are required for the one application.

Furthermore, it is difficult to know exactly how many people ahead of you in the queue would be denied or required to provide further evidence (RfE).

One of the main reason for a denial or demands for more evidence is poorly documented Source of Funds. To avoid this happening, it is vital to select a reputable law firm who has a strong track record in this area. Here at Davies & Associates we have never had a client rejected because of a Source of Funds issue.


Other Employment-Based Categories

For the EB-3 visa category for highly-skilled workers, every country is current except for India and China. The EB-3, which is essentially the long-term immigrant counterpart to the H-1B visa, is inevitably very popular in India. The waiting list for Indian applicants is very long and only moved forward one week from March 15, 2010 to March 22, 2010. China moved forward six weeks from November 1, 2017 to December 15, 2020.

For the EB-1 visa category for extraordinary talent, researchers, and managers & executives, again India and China are the only country in retrogression. One of the reasons these two countries appears so often in this analysis is that the annual quotas do not take account of population size and are not determined on a per capita basis. China and India have the world’s largest populations as well as a long tradition of immigration to the United States.

The Final Action Dates are the same for both countries at September 1, 2019, having both moved forward by the same five month period since the last visa bulletin.


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


Case Study: Green Card for L-1 Visa Client Switching to EB1C Visa

Davies & Associates has filed yet another adjustment of status for an L-1 visa client to transition to a Green Card on an EB1C Visa. The client, whose business specializes in satellite solutions for remote communications, initially moved to the United States on an L-1 Visa in 2017.

Back then, he established a US branch of his Australian company so that he could then transfer himself on an L-1 visa. With our teams of corporate and immigration lawyers working together, Davies & Associates is able to help with both setting up a company and then with obtaining the necessary visas.

The L-1 Visa is for the intracompany transfer of employees from an overseas branch to the US branch of the same business. It is typically used by employees of large multinational organizations, seeking to move their employees around the world.

But Davies & Associates specializes in “new office L1 visas”, whereby a client can set up a US branch of their foreign company and then move to the United States to manage that branch.

The foreign entity and the US office need to have a “qualifying relationship”, a term that has a degree of latitude. It is important to discuss what this means with one of our attorneys.

The L-1 Visa allows for the transfer of a management or executive level employee, as well as an employee with specialized knowledge (the latter being eligible for a L-1B visa).

L-1 Visa holders can bring their dependant families with them, and spouses are able to apply to work in the United States outside of the underlying business.

L-1 is a time limited visa. It can be renewed for up to seven years (five years for L-1B). It does not offer permanent residency, so people seeking to stay in the US longer, need to find an alternative solution.

This is precisely what we did for our Australian L-1 client when he wanted to transition to a Green Card.

The optimal route to the a Green Card for an L-1 Visa client is the EB1C Visa. It is an immigrant visa for management and executive level employees.

But timing is important. For beneficiaries of EB1C petition who are currently in the US, they must have been employed by the qualifying entity abroad for at least one year in the three years preceding the date that they entered the US as nonimmigrant working for the US entity.

 

Since our Australian client obtained his L-1 Visa in 2017, the window of opportunity was starting to close on his eligibility for the EB1C visa. The adjustment of status was filed in good time and the adjustment of status can begin.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


November Visa Bulletin Analysis for EB 5 Investor Visa

November Visa Bulletin Analysis

The Department of State has issued the November visa bulletin showing little movement for Chinese- and Vietnamese- born EB-5 investor visa applicants continuing to face delays. All other countries remain “current” for EB-5, meaning there is no waiting list for a Green Card.

India has been “current” since July, but retrogression delays may return because demand for EB-5 has been consistently high in recent years. Indians planning an EB-5 petition should consider acting while the country is current. The US Citizenship and Immigration Services (USCIS) has changed the way it sequences EB-5 applications to benefit countries that are current over countries facing retrogression delays.

The Final Action Date for Vietnam crept forward two weeks to August 15, 2017, while China remained unchanged at August, 15 2015. The Final Action Date refers to whether there is expected to be a visa available within a quota system (or visas – plural – depending upon how many family members are included in the application).

The date in question here is the priority date. This is the date that the US Citizenship and Immigration Services received your initial EB-5 petition (I-526).

Visa availability is determined by a country quota. As with all the employment-based immigrant visa categories, no country is permitted more than 7 percent of the total visas available in any given year (approximately 10,000 for EB-5).

In the case of EB-5 that is just over 700 visas, determined by the primary applicant’s country of birth.

Visa Bulletin Final Action Dates for Employment-Based Categories

The visa bulletin also includes a Date for Filing. This refers to when you can submit your visa application to the National Visa Center, even though there might not yet be a visa available. For applicants outside the US, this additional date provides some extra notice to prepare the application documentation. For applicants inside the US adjusting their status, they may be able to apply for a work permit based on the Date for Filing.

Most countries have current filing dates, with the sole exception of China, which has a Date for Filing four months sooner than its Final Action Date.

Visa Bulletin Date for Filing for Employment-Based Categories

The EB-5 program provides the opportunity to obtain Green Cards for a $900,000 investment in a Targeted Employment Area (TEA) in the United States. The investment must sustain ten American jobs. Outside of these TEAs, the required investment is $1.8 million. A single application can cover the primary applicant, a spouse, and any children under the age of 21.

EB-3 Visas – Permanent Residency for Skilled Workers

China and India remain in visa retrogression in the EB-3 visa category for highly-skilled workers. The EB-3 visa is similar to the H-1B visa which is especially popular in India. However, as an immigrant visa, the EB-3 offers permanent residency whereas the H-1B visa does not. H-1B is renewable up to a limit of six years, after which the holder needs to explore alternatives like EB-3 and EB-5, or leave the country.

The Date for Filing is significantly more recent than the Final Action Date for Indians in particular. This time gap has implications for certain applicants’ ability to work in the United States. This relates to people already in the US seeking adjustment of status. If you are in this position, we advise you to speak with one of our attorneys.

EB-1 Visas

Similarly, people born in India and China are the only two groups facing delays in the EB-1 visa category. The EB1-A visa targets individuals with extraordinary abilities in their field, the EB1-B visa targets academics, and the EB-1C visa is for multinational managers and executives.

People faced with retrogression in these categories should contact us. There are non-immigrant counterparts that are not subject to quotas and could provide a pathway to these immigrant (permanent residency) categories at a later stage. The EB1-C, for example is similar to the non-immigrant L-1 visa, and the EB1-A is similar to the non-immigrant O-1 visa.

Non-immigrant status has advantages to people who do not wish to obtain permanent residency. For example, US permanent residents are liable for tax on income earned outside the US. This does not apply to non-immigrant visas. People seeking permanent residency are encouraged to arrange a consultation with our tax attorney as early in the process as possible.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.