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Liu & Associates

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Subcategories from this category: To Our Clients and Friends

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One issue of concern for many clients in the employment-based immigration process is the Priority Date. With the recent retrogression in the EB-1 category and now slow advancement of EB-1 and EB-2 China & India this year, obtaining an earlier Priority Date is more important than ever.

Update from Charles Oppenheim's October 11, 2018, meeting with AILA: 

Mr. Oppenheim states there will be some forward movement in December for all EB-1 categories, but none will return current in 2018. He also state that EB-1 Worldwide will not return current current in the foreseeable future, and this will be "the new normal" through the first half of the fiscal year. 

On June 6, 2018, Liu & Associates, PLLC received approval of an EB-2 National Interest Waiver (NIW) I-140 immigrant petition for a poet, writer, editor and educator in creative writing from Taiwan. The United States Citizenship and Immigration Services (USCIS) approved the petition without RFE.

For EB-2 I-140 immigrant petitions, the petitioner must show that he is either an advanced degree professional or possesses exceptional ability in the sciences, arts, or business. For most EB-2 I-140 petitions, he must also have a permanent US job offer and an approved labor certification. However, a National Interest Waiver or NIW waives the requirements of a permanent US job offer and an approved labor certification if the petitioner can show that his entry into the US as a permanent resident is in the national interest.

On April 4, 2018, the Administrative Appeals Office (AAO) sustained an appeal filed by Liu & Associates and approved the EB-1A I-140 petition that was originally denied by the United States Citizenship and Immigration Services (USCIS) Nebraska Service Center (NSC).

The EB-1A I-140 petition was originally filed with the USCIS in June 2017. The petitioner/beneficiary was a physics researcher seeking classification of immigrant worker as an alien of extraordinary ability under INA §203(b)(1)(A). To support the petition, the petitioner/beneficiary submitted documentary evidence showing that he met at least three criteria as required by 8 CFR §204.5(h)(3). The EB-1A I-140 petition was filed with Form I-907 Request for Premium Processing Service.

Recently, the the U.S. Department of State released the Visa Bulletin for April 2018, summarizing the availability of immigrant visa numbers. Unfortunately, the Bulletin has established a cut-off date (January 1, 2012) for the “final action date” for EB-1 applicants born in China and India. This visa retrogression means that visa numbers are available only for applicants whose priority date is earlier than the cut-off date. The USCIS has determined that applicants must use the “final action date” chart for filing Form I-485 Adjustment of Status. This means that starting April 1, 2018, individuals born in India or China with an EB-1 petition are eligible to file their Form I-485 only if their priority date is before January 1, 2012. (Exception – applicants may use their accompanying spouse’s country of birth for eligibility based on “cross-chargeability”).

To our clients born in China or India – You will need to wait until your priority date becomes current before you can file your Form I-485. If you have a pending Form I-485 and your priority date is no longer current due to the retrogression, the USCIS will hold the application for adjudication until your visa category becomes current again. In past years, the retrogression has ended in October when the new fiscal year starts and visa numbers are available again.

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