What is an the purpose of an employment-based immigrant petition? |
The purpose of an immigrant petition is to classify an alien under a particular category of immigrant eligibility. For an employment-based immigrant petition (I-140), these categories are based on your current employment or capacity for future employment. After your I-140 has been approved, and a visa is immediately available, then you may "adjust" your status to permanent resident (i.e., apply for a green card). |
What do the employment-based direct petition categories (NIW, EB-1A, EB-1B) mean? |
EB-1A means "Alien of Extraordinary Ability." EB-1B means "Outstanding Researcher/Professor." EB-1A and EB-1B are "first preference" categories, which means that an immigrant visa will be available regardless of the alien's country of origin. EB-1A has slightly higher requirements than EB-1B, but may be filed by the alien independently (known as "self-petition"). EB-1B must be filed by a petitioning employer.
NIW means "National Interest Waiver." NIW is a "second-preference" category, meaning a visa may not be immediately available, depending on the alien's country of origin. NIW does not require a petitioning employer, and may be filed independently. |
How do I know which petition category is best for me? |
The category that is best for you to file in depends on your background, experience, published work, and country of origin. This is a complex inquiry that requires extended review and evaluation by an experienced immigration attorney. If you would like to get started, please send your Curriculum Vitae by email for a free case evaluation. |
Can I apply in multiple petition categories at the same time? |
Yes. If you file more than one employment-based petition with USCIS at the same time, these petitions will be reviewed independently. However, you will need to pay an additional filing fee, and additional attorney fees may apply. Please consult your agreement, and feel free to contact us if you have any questions. |
Do you discuss strategy with your clients? |
Yes -- discussing strategy is the first thing that we do after a client has sent in his or her signed agreement and attorney fee. This can be over the telephone, or in person if you are in Connecticut or are otherwise willing to travel to our office.
A strategy conference must take place as early as possible, once the client has decided to go forward with his or her case. It generally lasts between one and three hours. Needless to say, we go into considerable detail in examining what the client is looking to accomplish, and what is reasonably possible. Frequently, we will also advise clients on alternative ways to achieve their objectives.
Most of our clients have later said that the experience of a strategy conference has been extraordinary, and that they have gained a new appreciation of what is possible in accomplishing their goals that is far beyond what they knew previously. |
What are the steps in preparing an employment-based I-140 petition? |
Once you send in your agreement and attorney fee, we will immediately send you example letters that will be needed for your petition. We will also immediately schedule a strategy conference, as described above.
Typically, the next step is to prepare referee letters, which are an important part of any employment-based direct petition. Because these letters will describe your work, you must provide the initial draft. It does not make any difference how good your English is, as your drafts will be edited carefully and thoroughly, with regard to both the English language and the content. For example, many scientists tend to talk in scientific terms--such as ligands, receptors, signal processing, antibodies, etc. It is unlikely that a USCIS examiner will be able to understand these terms, no more than they would be able to understand a foreign language. Fortunately, this firm has vast experience in taking these letters, reducing them to what is necessary, and avoiding any potential confusion. We have had clients bring cases to us that were previously submitted by other attorneys, and denied. Upon re-writing the referee letters and preparing a new cover letter, these exact same cases were later approved.
After the referee letters are complete, we write the cover letter. One written a copy is sent to you, for your comments. We will correct any errors or omissions.
We have a high approval rate for the employment-based petitions we have submitted, with our NIW approval rate at very close to 100% since 1990, and our EB-1B approval rate also very close to 100% since 1990. (1990 was the year that these petitions were first allowed.) Our EB-1A petitions have a lower rate of success (probably somewhere above 90%), this is to be expected given that EB-1A has the highest requirements of any employment-based petition. |
What is a Request for Evidence (RFE)? Is it a sign that my case will be denied? |
USCIS may respond to a petition with an RFE for many reasons. Often, whether an RFE is issued depends on which USCIS examiner is reviewing your case. The particular examiner may not be convinced that your case qualifies for the category it was filed in. The examiner could be confused about a certain piece of evidence that was submitted. In any case, an RFE is not an indicator that your case will be denied. Well over 90% of our cases that have received an RFE have been responded to successfully, and eventually approved.
In rare situations, USCIS may also respond to a submission with a "Notice of Intent To Deny" (NOID). Generally, this reponse means that something is so wrong that it is likely this case will be denied. Our firm has never received a NOID on a case that we have submitted. However, we have handled NOIDs on cases other attorneys have submitted, and their clients have brought to us. |
How often to your cases receive an RFE? |
The likelihood of an RFE depends upon the method by which petition is filed.
If the petition is filed using USCIS's Premium Processing service, our RFE rate is about double our usual rate. Premium Processing is a very expensive way of having a case adjudicated within 15 days, as opposed to the usual processing time, which is generally at least four months. (As of this writing, the filing fee is $1,225.00, in addition to the base I-140 filing fee.) The response, however, is usually an RFE. For this reason, we do not generally recommend using Premium Processing except in some circumstances. We feel this high rate of RFEs is caused by the inability of USCIS examiners to process their case loads within the short period allowed. Most frequently, the examiner elects to get more time by sending out the RFE. In our view, this is usually a waste of $1,225.00.
RFEs can be sent out for both trivial and non-trivial reasons. For example, if you file an I-485 and your medical examimination becomes more than a year old during the processing, USCIS will send out an RFE to request a new examination. This is a trivial RFE, since there is really nothing wrong with the case as filed; USCIS simply took too long to process it. This is only one example, and similar problems may arise, despite our best efforts to avoid them.
More serious RFEs may occur where USCIS considers the documentation submitted for a particular category to be insufficient, or more commonly, where the client technically qualifies in a category but the overall case still seems weak to the examiner. In these situations, we treat the response very aggressively, and are almost always successful. In 2015, only one of our employment-based petitions has been denied, and that case is presently on appeal. (For reference, we file around 50 employment-based petitions per year.) |