MVP LAW GROUP – Immigration Q&A Forum, Friday, January 4, 2013

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – Green Card
Can you premium process the I-140 for an EB1A or EB1-B Applicant?

Answer #1
The premium processing service is available for the following applicants: Aliens of extraordinary ability; outstanding professors and researchers; Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver; Skilled Workers, Professionals, and Workers other than skilled workers and professionals.

Question #2 – General
Can my children go to a U.S. public elementary school on a dependent visa?

Answer #2
Yes.

Question #3 – Green Card
How can I, as an entrepreneur establish that I have exceptional ability in the sciences, arts, or business?

Answer #3
To qualify under this category the individual should be one at the “top of her/his field of endeavor,” as demonstrated by national or international acclaim which should be recognized through extensive documentation. The alien should continue to work in the same field and provide proof of how s/he would substantially benefit the U.S. prospectively. The law provides that receipt of the Nobel Prize or at least three types of evidence from the list below are needed to satisfy the criteria. Note that the submitted documentation must relate to and support the specific case presented to the USCIS.
1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
2. Documentation of the alien’s membership to 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.
3. 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 specification for which classification is sought.
4. 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.
5. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.
6. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.
7. Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases.
8. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.
9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.
10. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.

Question #4 – Employment Based Immigration
Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?

Answer #4
No. The education and experience requirements are determined by the Employer.

Question #5 – General
May an individual travel while their petition is pending?

Answer #5
It depends upon the type of petition that was filed.

At MVP, we caution our clients against traveling while a petition is pending unless it is necessary for emergency reasons.

Question #6 – Employment Based Immigration
Where can I find the laws governing the Employment Based Second Preference (EB-2) Immigrant Visa Category?

Answer #6
The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2). The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k).

Question #7 – Temporary Nonimmigrant Visa
How can I qualify for an O1 nonimmigrant visa? I want to come here, have an offer, but don’t know if I want to permanently stay in U.S.

Answer #7
To qualify for an O-1 in the Sciences, Education, Business or Athletics, a person must demonstrate either of the following:
1. Receipt of a major, internationally-recognized award (e.g. the Nobel Prize), or
2. At least three (3) of the following apply to him/her:
o Receipt of nationally or internationally recognized prizes or awards for excellence in his/her field.
o Membership in an association in the field which requires outstanding achievements of its members, as judged by national or international experts in the field.
o Published material in professional or major trade publications or major media about the person, concerning the person’s work in the field.
o Participation on a panel, or individually, as a judge of the work of others in the field.
o Scientific, scholarly, or business-related contributions of major significance in the field.
o Authorship of scholarly articles in the field in professional journals or other major media.
o Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
o High salary or other remuneration commanded by the person for services

Question #8 –Adjustment of Status
I was able to file I-485 application back in 2007 in EB3. Now I am recipient of an approved I-140 in EB2 classification. Do I need to submit a new I-485 even though the EB-3 I-485 is pending with USCIS?

Answer #8
No. The USCIS should be able to link up your existing I-485 petition with the current filing. You can always contact the USCIS National Customer Service Center for additional information concerning your Adjustment of Status filing, 1-800-375-5283.

Question #9 – Green Card
Who can qualify for EB classification without the labor certification process?

Answer #9
The following applicants can qualify without the labor certification process: EB1 Priority workers – Individuals with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors or researchers; and Managers and executives transferred to the U.S. EB4 Special Immigrants and EB5 Immigrant Investors.

Question #10 – Immigrant Investor
Are any countries excluded from eligibility for the EB-5 Visa program?

Answer #10
Citizens of all countries are eligible to apply for the EB-5 visa program.

MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, January 18, 2013!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!