Distinguishing Between EB-1A and NIW Immigration Visa Categories
Highly skilled foreign nationals seeking employment-based green cards in the United States can consider applying under the first preference category extraordinary ability (EB-1A for purposes of this article), or second preference category National Interest Waiver (NIW). These are coveted visa categories because they allow the applicant to self-petition, do not require a bona fide job offer, and allow the applicant to bypass labor certification, which is an onerous and extremely time-consuming legal process.
While there are some similarities between the EB-1A and NIW categories, there are many differences that applicants should consider. Currently, the key advantage to EB-1A is that, apart from Chinese and Indian nationals, EB-1A remains current on the July 2023 Visa Bulletin, whereas EB-2 is backlogged. This means that applicants seeking permanent residence through EB-1A could concurrently file for adjustment of status with their immigrant visa petition. Conversely, EB-2 is backlogged across all nationalities, meaning applicants would have to wait for their priority date to become current. The wait is now about 18 months for “Worldwide” (i.e., many nationalities).
While immigrant visas are available under the EB-1A category, the higher preference visa category generally makes it more challenging to satisfy the legal requirements. To be eligible, petitioners must demonstrate extraordinary ability in their field of endeavor (sciences, arts, education, business, or athletics) through sustained national or international acclaim. By definition, these individuals must have risen to the very top of their fields. The regulations require the petitioner to satisfy at least 3 of 10 regulatory criteria, or provide evidence of a one-time achievement (e.g., Pulitzer Prize, Oscar, Olympic medal), as well as evidence showing that the petitioner will continue to work in the area of expertise. Even if the petitioner satisfies 3 of the 10 criteria, USCIS will consider the totality of the evidence and grant or deny the petition as a matter of discretion.
On the other hand, an NIW petition requires the petitioner to either have an advanced degree (or its foreign equivalent) or be an individual of exceptional ability in the sciences, arts, or business. Possession of a master’s degree or bachelor’s degree and five years of progressive experience in their field will satisfy the educational requirement for this position, making many educated professionals eligible for the category.
The challenging component for NIW petitions is proving that the applicants’ work is in the “national interest.” To do so, they most show the (1) that their proposed endeavor has both substantial merit and national importance; (2) that they are well-positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. Accordingly, while this type of position does require applicants to be skilled, the primary focus is on their ability to fill a need for important work in the United States, rather than the applicant reaching the pinnacle of their field.
Outside of the substantive legal differences, procedurally EB-1A provides an option for a quicker determination by USCIS. While both preference categories are entitled to premium processing, EB-1A petitions receive a determination or request for evidence within 15 days if filed with Form I-907, which requires a $2,500 filing fee. If an NIW petition is filed with premium processing, the applicant is entitled to a decision or RFE (request for evidence) within 45 days.
Maintenance of status, urgency of need to apply for permanent residence, strength of qualifications, and appreciation of risk are the primary factors an applicant should consider when evaluating which is the better category to pursue. Our office recommends that applicants bring their updated CV to a consultation with an experienced immigration attorney when evaluating their options to make this determination.
Benefits of NIW for EB-2 Applicants with Approved I-140s Who Went Through PERM
Many EB-2 applicants who went through the PERM process may already have an approved I-140 but, because of the visa backlogs in the EB-2 category, are ineligible for adjustment of status because their priority date is not yet current. An NIW petition may offer some limited relief to these individuals.
While NIW will not expedite processing of the immigrant visa, it will make it easier for these foreign nationals to change jobs. With an approved NIW, an applicant does not need to rely on his or her employer to adjust. That means that that if offered a new job, the applicant would not have to go through the PERM process again or, alternatively, meet the legal requirements of portability.
In the current labor force, the ability to change jobs freely as a foreign national is of immense benefit. In some situations, applicants must wait years to adjust status, and it’s unclear when the EB-2 backlog will end. Mergers and acquisitions of companies could disrupt the viability of approved labor certification if there are changes to worksite locations, job titles, job descriptions, or salary. Furthermore, given the plethora of job opportunities, a skilled foreign national would unlikely wish to be pigeonholed into one position when he or she is able to perform more complex and fulfilling work.
SCOTUS Preserves Biden Administration’s Policies on Immigration Enforcement
On June 23, 2023, the U.S Supreme Court denied a challenge to President Biden’s immigration enforcement guidelines, declaring that the Executive Branch is entitled to set its priorities for arresting and removing immigrants. The vote was 8-1, with Justice Samuel Alito being the lone dissenter. The Court reasoned that the state challenges for more arrests and prosecutions are contrary to the constitutional authority vested in the executive branch to enforce federal law. As noted in the majority opinion, neither Democratic nor Republican administrations have sufficient resources to physically remove the millions of unauthorized immigrants currently present in the country. It is unclear how enforcement and prosecutorial discretion will change as a result of this decision. Anecdotally, ICE attorneys have not consistently followed the Biden Administration’s guidelines for exercising prosecutorial discretion. There also appears to be inconsistencies among certain offices, with some locations being more willing to join in on motions to terminate proceedings, whereas other offices will only do so in extraordinary circumstances, and rarely make legal stipulations to relief.
Unlawful Presence Waivers Reach a Whopping 44 Months in Processing Time
USCIS has been plagued by egregious processing times for many benefits categories, but among the worst is for unlawful presence waivers. As background, to be eligible for an unlawful presence waiver, an applicant must be the beneficiary of an immigrant visa petition and have a qualifying relative (U.S. citizen or lawful permanent resident spouse or parent) who would suffer extreme hardship as a result of a forced separation or relocation. Often, qualifying relatives suffer from medical, psychological, or financial hardships, and the prolonged delays in adjudication weigh heavily on them and their families. At the time of publication, USCIS is currently taking 44 months to adjudicate I-601A Provisional Unlawful Presence Waivers at their Nebraska and Potomac Service Centers. This delay is unprecedented. From FY 2017 through FY 2022, the processing times increased 590 percent, taking on average 4.6 months for a decision in 2017 and 31.7 months in 2022. These delays continue to get worse. At the start of 2023, there were over 121,793 unlawful waivers pending before the agency, and staffing shortages have compounded the delays. It is noteworthy to mention that the provisional waiver does not allow for any interim benefits, so often the applicant is ineligible for work authorization, and is not guaranteed protection from removal during the pendency of the application.
A class action suit was brought against USCIS earlier this year for delays in adjudication of the unlawful presence waivers, and the case remains pending in federal court. USCIS recently filed a motion to dismiss the lawsuit in March 2023, arguing that the plaintiffs were not entitled to relief because the waivers were discretionary, or alternatively, that the plaintiffs were not subject to an unreasonable delay. The plaintiffs filed an opposition to this motion the following month. While this class pends, it is still possible to bring forth individual mandamus complaints against the agency for the lack of adjudication. Anecdotally, some applicants have been successful in obtaining adjudications after filing mandamus actions against USCIS in federal court for failing to adjudicate their waiver petitions.
USCIS Updates Policy to Make a Third Gender Category
On March 31, 2023, U.S. Citizenship and Immigration Services (USCIS) updated its policy manual to allow individuals requesting immigration benefits to self-identify their gender. The gender selected would not have to match the applicant’s gender on their supporting government identification and documentation.
Additionally, the update eliminates the requirement for people requesting immigration benefits to submit proof of their gender identity when filing a request to change their gender. However, the update does not apply to Form N-565, Application for Replacement Naturalization/Citizenship Document. Applicants for this form will have to continue to submit proof of their gender identity.
Currently, the only gender markers available on USCIS forms are “Male” or “Female.” DHS plans to include a third gender marker, “X.” USCIS will update its forms and Policy Manual accordingly. USCIS notes that these changes were created in response to DHS’s Request for Public Input seeking feedback on barriers to USCIS benefits and services. Public responses to the DHS Request voiced that the evidentiary requirements to gender marker changes were overly burdensome and created barriers for requesting immigration benefits.
All About FOIA Requests
The Freedom of Information Act (FOIA) was created to promote open, transparent government. The Act has provided people the right to request access to records from any federal agency, including USCIS. FOIA states that any person has the right to request records or information from federal agencies. Under the FOIA, federal agencies are required to disclose any information requested unless it falls under one of nine exemptions relating to national security, law enforcement, and personal privacy. When a foreign national applies for an immigration benefit or is fighting removal, requesting past records under FOIA can be helpful and, sometimes, necessary. A client can request his or her entire “A-file” or a record of their past entries into and departures from the United States. Past immigration records may be helpful when needing to ascertain what information was included on previous applications, determining what relief is possible, and assessing the risks in applying for certain benefits.
To request USCIS records, the fastest method is through the FOIA FIRST Portal at https://first.uscis.gov/#/. (You will need to create an online account with USCIS if you do not yet have one.). To request Customs and Border Patrol (CBP) or Immigrations and Customs Enforcement (ICE) records, you can now file requests via the Secure Release portal at www.securerelease.us. When seeking information about a third party, the requester typically must submit proof of the third party’s authorization for the FOIA request, or proof that the third party is deceased (e.g., death certificate, obituary).
According to DHS, the FOIA requires an agency to respond within 20 business days after the office that maintains the responsive records receives the requests. Unfortunately, the law does not reflect reality. In practice, FOIA requests can sometimes take months or years. To address FOIA delays, requestors can contact the appropriate government agency through a messaging portal. Alternatively, requestors can find contact information for FOIA officers at https://www.dhs.gov/foia-contact-information. Requestors may file administrative appeals to agency responses (or lack thereof) within 90 business days for requests with DHS and 90 calendar days with EOIR. Following an agency determination of the appeal, you have six years to file an action in district court.
General tips for making FOIA requests are as follows:
- Keep requests narrow and targeted. A FOIA request is more likely to return a result in less time if specific documents are requested, rather than the entire file. (FOIA officers discourage language with “any and all”).
- Include specifics that will help the agency locate the documents.
- Describe the records with as much detail as possible.
- If USCIS claims “no records exist” for someone, refile the FOIA request with any available immigration document.
The Budding Immigration Consequences of Marijuana Possession
Marijuana possession, while considered to be innocuous by many, can present risks to permanent residents and those seeking admission to the United States. While many states have decriminalized or legalized the possession of marijuana, it remains a federal offense to possess marijuana and it continues to have immigration consequences. Both individuals seeking to become permanent residents of the United States and those who are already permanent residents need to be wary of marijuana possession.
Applicants for permanent resident status will be deemed inadmissible if they have been convicted of marijuana possession, regardless of the amount of marijuana. It should be noted that individuals charged with marijuana possession in the United States are often offered diversion programs or a deferred dismissal that requires them to complete a period of probation upon which the charge will be dismissed. Such a dismissal where probation was completed would still be a conviction for immigration purposes if one pleaded guilty or the judge made a finding of guilt.
Even if one is not convicted, inadmissibility could arise if the applicant admits to possessing marijuana. Applicants for permanent resident status have the burden to prove their admissibility and could be asked questions relating to marijuana possession by the USCIS officer or consular official during their interview. If an applicant admits to possessing marijuana, he or she could be deemed inadmissible. It is more likely that questions related to marijuana possession are asked when applicants have a prior charge or arrest history related to marijuana, even if they were not convicted. For instance, a doctor conducting the visa medical exam could also ask applicants if they have used marijuana, and an admission could render an applicant inadmissible.
Lawful permanent residents could also face deportability grounds from marijuana possession. A conviction for marijuana possession, other than a single offense for possessing 30 grams or less of marijuana for personal use, will render one deportable from the United States. Unlike the ground of inadmissibility discussed above, one must be convicted of, and not just admit to, marijuana possession to be found deportable. A conviction for possessing more than 30 grams of marijuana, or two or more marijuana possession convictions, regardless of the amount, makes one deportable. Legal permanent residents convicted of marijuana possession may be eligible for various forms of relief depending on when the crime(s) occurred and the specifics of their case.
Permanent residents travelling abroad could also be found inadmissible if they have a history of marijuana possession. While legal permanent residents returning from travel abroad are generally not considered to be making an admission to the United States, they will be considered as such if they are subject to a criminal ground of inadmissibility. If a legal permanent resident has a marijuana conviction or admits to having possessed marijuana to a CBP officer, he or she could be deemed inadmissible and placed into removal proceedings. It is advisable that permanent residents with a history of marijuana possession avoid foreign travel until they become a U.S. citizen.
A permanent resident or applicant for permanent residency who is deemed inadmissible based on a single incident of possessing 30 grams or less of marijuana could be eligible for a waiver, called a “212(h)” waiver. To qualify for the 212(h) waiver for possessing 30 grams or less of marijuana, an applicant must demonstrate one of the following: that that they have a U.S. citizen or lawful permanent resident spouse, son, or daughter who would suffer extreme hardship of if they were removed; the incident that triggered inadmissibility occurred at least 15 years ago, and the individual has rehabilitated; or they are a VAWA (Violence Against Women Act) self-petitioner, and they can demonstrate that the waiver should be granted as a matter of discretion.
News in Brief
DHS Announces Extension and Redesignation of TPS for Several Countries: On June 21, 2023, DHS announced the rescission of the 2017 and 2018 terminations of Temporary Protected Status (TPS) designations for El Salvador, Honduras, Nepal, and Nicaragua. DHS will extend the designation as follows:
- El Salvador – for 18 months, from September 10, 2023 through March 9, 2025 (60-day re-registration period from July 12, 2023 through September 10, 2023);
- Honduras – for 18 months, from January 6, 2024 through July 5, 2025 (60-day re-registration period from November 6, 2023 through January 5, 2024);
- Nepal – for 18 months, from December 25, 2023 through June 24, 2025 (60-day re-registration period from October 25, 2023 through December 23, 2023);
- Nicaragua – for 18 months, from January 6, 2024, through July 5, 2025 (60-day re-registration period from November 6, 2023 through January 5, 2024).
USCIS Expands Premium Processing for Applicants Seeking to Change Status into F, M, or J: Nonimmigration Status: On June 12, 2023, USCIS announced the expansion of premium processing for applicants filing Form I-539, Application to Extend/Change Nonimmigration Status, and seeking a change of status to F-1, F-2, M-1, M2, J-1, or J-2 Nonimmigration Status. Online filing of Form I-907 will also be available for those applicants. The filing fee is $1,750 and it guarantees adjudication in 30 calendar days.
Certain Individuals Requesting Parole Can Now File Form I-131 Online: On June 9, 2023, USCIS announced that individuals requesting parole based on urgent humanitarian reasons or significant public benefit can file Form I-131, Applicant for Travel Document, online.
USCIS Extends and Expands Employment Authorization for Hong Kong Residents Covered by DED: On May 3, 2023, USCIS posted a Federal Register notice on the extension and expansion of eligibility for Deferred Enforced Departure (DED) for Hong Kong residents.