5718 Westheimer Road
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Houston, TX 77057
www.niwus.com

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Email: zliu@niwus.com

Liu & Associates

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At Liu & Associates, PLLC, our attorneys not only like to keep up-to-date on the latest changes in immigration policy but also stay actively involved in the discussion and evolution of these policy changes. On January 27, 2017, Attorney Kellie Pai contributed to the American Immigration Lawyers Association (AILA) seminar focused on National Interest Waiver (NIW). This was a 90-minute “Late-Breaking Seminar” discussing how, after 18 years of relying on Matter of New York State Department of Transportation (NYSDOT), the Department of Homeland Security designated a new NIW case as precedent on December 27, 2016.

On December 27, 2016, the Department of Homeland Security designated as precedential the USCIS Administration Appeals Office’s (AAO) decision in Matter of Dhanasar, thereby vacating the previously used Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (AAO 1998) (NYSDOT), which had been in place for nearly two decades. Matter of Dhanasar provides a new analytical framework that the AAO hopes would apply more flexibility to circumstances of both petitioning employers and self-petitioning individuals.

U.S. Citizenship and Immigration Services (USCIS) has recently announced that they are increasing the fees for numerous immigration benefit requests, effective December 23, 2016. Applications and petitions postmarked or filed on or after December 23, 2016 must include these new fees or USCIS will reject the submission.

In recent years, Liu & Associates have had hundreds of National Interest Waiver (NIW) cases approved by USCIS. The majority of cases were approved directly; a small percentage of cases were approved after USCIS requested for additional evidence and the USCIS request was properly responded to. Occasionally, however, a small number of cases were denied by USCIS for apparently illegitimate reasons.

When a National Interest Waiver petition is erroneously denied by USCIS, the petitioner/beneficiary can appeal the denial to the Administrative Appeals Office (AAO) within 30 days of the denial date. The legal standards for a National Interest Waiver as set out in Matter of New York State Dept. of Transportation (NYDOT) are: (1) that the alien seeks employment in an area of substantial intrinsic merit; (2) that the proposed benefit will be national in scope; and (3) that the national interest would be adversely affected if a labor certification were required. Under the current procedure, USCIS will first treat the appeal as a motion to re-open and re-consider. Instead of forwarding the appeal to AAO, USCIS may re-open the denied case and approve it. If USCIS refuses to re-open the case, then it will forward the appeal to AAO, and AAO will make a decision to sustain or to dismiss the appeal. If the appeal is sustained, then the case will be approved. In recent years, we have been successful in representing NIW clients before AAO. Upon appeal, some erroneously denied NIW cases we filed were re-opened and approved by USCIS. A few appeals that were forwarded to AAO by USCIS were sustained and the cases were approved by AAO.

The Department of State has issued an updated Visa Bulletin with revised "Dates for Filing Applications" for October 2015. Please disregard the dates in the original posting. The revised Dates for Filing Applications for the EB-2 category as follows:

  1. China born applicants - January 1, 2013;
  2. India born applicants - July 1, 2009; and
  3. All other countries - the priority date is current.

This means that if your EB-2 I-140 petition has a priority date prior to the above specified dates, then you may file your I-485 application in October 2015. However, the applications will not be adjudicated until a visa number becomes available.

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