LPY Law Group

On April 4, 2023, LPY Law Group received approval of an EB-2 National Interest Waiver (NIW) I-140 immigrant petition for an asset manager from Canada. The United States Citizenship and Immigration Services (USCIS) approved the petition without Request For Evidence.

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, the 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 June 6, 2023, LPY Law Group (LPY) received approval for a Form I-601 Application for Waiver of Grounds of Inadmissibility and Form I-485 Application to Register Permanent Residence or Adjust Status for a Client who was, at one point, a member of the communist party prior to coming to the United States.

Client came to the U.S. with an F-1 visa to earn her Master’s degree. Soon after graduation, she met her husband, a U.S. citizen, and they were married.

On April 22, 2020, President Trump signed a Proclamation to suspend the issuance of most immigrant visas starting 11:59 p.m. EDT on April 23, 2020 for 60 days: https://www.niwus.com/resources/presidential-proclamation-suspends-issuance-of-most-immigrant-visas-at-u-s-consulates-1.

On April 22, 2020, President Trump signed a Proclamation to suspend the issuance of immigrant visas starting 11:59 p.m. EDT on April 23, 2020 for 60 days. The Proclamation only affects individuals applying for permanent residency (i.e., green cards) from outside the United States. As explained below, some exceptions to this rule are carved out for those whose work may alleviate the COVID-19 outbreak, certain immediate relatives of U.S. citizens, and other individuals who may benefit U.S. national interests. For our clients who are currently consular processing an immigrant visa, they should still be able to process their applications through submission to the National Visa Center, where the application will be placed in a holding queue until this suspension is limited, after which time they may be scheduled for an interview. Because many U.S. Consulates’ visa services have been suspended already, there is no material impact on the current practices.

Importantly, the Proclamation does not apply to non-immigrant visas, Form I-140, or Form I-485. At this time, the USCIS should still be able to accept and adjudicate Form I-485 adjustment of status for individuals present in the United States if visa numbers are available. For the majority of our clients, this means the Proclamation should not affect their cases.  The USCIS should continue to adjudicate these cases following the usual practices. 

On July 18, 2019, LPY Law Group received approval for two I-601 Waivers for two clients (husband – Client A and wife –Client B) that were, at one point, members of the communist party prior to coming to the United States. The United States Citizenship and Immigration Services (USCIS) approved both waivers without RFEs.

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 March 18, 2019, meeting with AILA:

In the most recent meeting with AILA, Mr. Oppenheim has provided a less optimistic picture into the advancement of the Final Action Dates in the visa bulletin for the EB-1 category. He stated that demand levels from all countries in the EB-1 category remains high. EB-1 has used more total visa numbers in FY19 than any other EB category. EB-1 usage is up to 25% higher than that of EB-2 and EB-3. Due to the high demand for EB-1 worldwide visa numbers, Mr. Oppenheim stated that EB-1 China and EB-1 India should not expect any movement in Final Action Dates. In most years, EB-1 China and EB-1 India benefit from the availability of otherwise unused EB-1 visa numbers from other countries, which is not currently available this FY. In terms of EB-1 Worldwide, Mr. Oppenheim currently anticipates no movement in Final Action Date or advancement of up to one month only.

On June 6, 2018, LPY Law Group 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 LPY Law Group 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.

On August 28, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it would begin expanding the requirement of in-person interviews for certain immigration benefit applicants whose benefit, if granted, would allow them to permanently reside in the United States. Specifically, USCIS will start to phase in interviews beginning October 1, 2017 for applicants applying for employment-based adjustment of status (Form I-485) and for applicants applying for refugee/asylee relative petitions (Form I-730).

This policy is part of an incremental expansion of interviews to other benefit types beyond these categories, and is in compliance with the Trump Administration’s Executive Order 13780 “Protecting the Nation From Foreign Terrorist Entry Into the United States.” USCIS states that the purpose of this expansion is to improve the detection and prevention of fraud in an effort to enhance the integrity of the immigration system within the United States. These interviews will provide more robust screening and vetting procedures, allowing USCIS officers to more reliably verify the information provided with the application, gather additional relevant information, and ascertain the credibility of the applicant seeking permanent residency within the United States.

At LPY Law Group, 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, LPY Law Group 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.

On May 19, 2015, attorneys from LPY Law Group attended the Open House at the Texas Service Center (“TSC”) in Dallas and toured the Service Center. Our attorneys regularly attend these events to maintain an open dialogue with TSC officials and keep abreast of procedural changes. The Open House provided an opportunity for our attorneys to inquire about issues regarding employment-based I-140 petitions and I-485 applications with representatives from the Business Premium Team and the Employment Adjustment Team.

The following is a summary of key points from the Open House:

UPDATE:  On May 20, 2015, USCIS published information to assist eligible H-4 dependent spouses who want to apply for employment authorization under the Employment Authorization for Certain H-4 Dependent Spouses final rule.

This updated information is now available on the Employment Authorization for Certain H-4 Dependent Spouses Web page as well as the list of Frequently Asked Questions that USCIS has compiled since they announced the H-4 rule in February.

Recently, the Visa Bulletin for February 2015 was released by the U.S. Department of State, summarizing the availability of immigrant numbers during the month of February. As expected, there continues to be modest movement in most retrogressed employment-based categories. The Visa Bulletin also provided projections for visa availability and potential monthly movements of cut-off dates in the upcoming months for employment-based categories. Please note that numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.

In addition, in early January, Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, provided monthly analysis and predictions for visa availability. We summarize the Visa Bulletin and Mr. Oppenheim’s comments below:

At the American Immigration Lawyers Association (AILA) Annual Conference, our attorneys attended a series of open forum sessions with representatives from the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS), and we would like to share the following information:

DOS

Our attorneys just returned from the American Immigration Lawyers Association (AILA) Annual Conference and have good news to share with our clients. At the conference, officials from the Department of State Visa Office stated that they anticipate “significant movement” in the Visa Bulletin cut-off dates for the China employment-based second and third preference categories (EB-2 and EB-3) in the upcoming months. Visa Office representatives indicated two reasons for this optimistic outlook: 1) excessive levels of demand in both EB-2 and EB-3 categories have subsided, and 2) there are several hundred unused visas in the family-based preference categories. To ensure that all immigrant visa numbers available to China in this fiscal year are used, the Visa Office plans to rollover the unused visas allocated to the family-based preference categories and to make them available to the employment-based preference categories. This is a routine procedure that the Visa Office applies to ensure that visa numbers are not wasted before this current fiscal year ends in September.

We do caution that the above is only a prediction from the Visa Office. Experience has shown that numerous factors, such as unexpected surge in demand or faster I-485 processing by the USCIS, may arise that can affect anticipated movements in the Visa Bulletin. Our firm will continue to monitor the Visa Bulletin each month and will notify clients when their priority dates become current.

Recently, the United States Citizenship and Immigration Services (USCIS) announced a significant policy change for medical exams that affects immigrants who submitted their medical exam more than one year ago and have I-485 application still pending.

Starting June 1, 2014, USCIS will limit the validity period for all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit Form I-693 to USCIS within one year of the immigration medical examination. USCIS outlines in policy alert PA-2014-005 that this new medical exam policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.

USCIS announced this morning that it has received a sufficient number of cap-subject H-1B petitions to reach both the H-1B Regular and U.S. Masters Exemption caps for fiscal year 2015 (FY 2015). The filing period for FY 2015 began on April 1, 2014. Today (April 7, 2014) is the last day that USCIS will accept cap-subject H-1B petitions.

After it completes initial intake for all cap-subject H-1B petitions received April 1-7, USCIS will conduct the random computer-generated lottery to select visa petitions for receipting and adjudication. USCIS will first conduct a lottery for all petitions that qualify for the 20,000 U.S. Masters Exemption cap. Petitions that are not selected for the U.S. Masters Exemption cap will then go into the regular lottery for the 65,000 cap. We will notify clients as soon as USCIS announces a date for the random lottery.

H-1B is a visa program used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or practical application of a body of highly specialized knowledge and at least a bachelor’s degree (or its equivalent) in the field. Such specialty occupations include, but are not limited to, scientists, engineers, accountants, or computer programmers. H-1B gives foreign workers permission to work in the United States and a status that allows him or her to remain lawfully in the United States on a temporary basis. Generally, the maximum period that a foreign worker can be in the United States with H-1B is six (6) years, which is granted in increments of no more than three (3) years at a time.

The H-1B Cap & Lottery System

“The care of human life and happiness, and not their destruction, is the first and only object of good government.” – Thomas Jefferson

Law and government are intertwined, and as many of our clients know, in the area of immigration the government often hinders more than helps. As attorneys at LPY Law Group, we are continually inspired by our clients and their unique stories as they pursue immigration. Despite the challenges of the U.S. immigration system, they make countless contributions to society and immeasurable sacrifices to be at the forefront of their fields—all while providing the very best for their families.

The commission of a crime while in the United States (or abroad) can have devastating immigration consequences for a noncitizen's future in this country. Not only can a criminal conviction make a foreign national inadmissible, which can prevent noncitizens from entering the United States or becoming a lawful permanent resident (i.e., receiving green card), but many criminal convictions also can render a noncitizen, including green card holders, removable/deportable if they are in the United States, causing them to be placed in removal/deportation proceedings.

For this reason, it is very important that a noncitizen who has been arrested hire experienced criminal defense and immigration attorneys to work together to achieve the best outcome for the criminal case and to avoid adverse effects on future immigration to the United States or current immigration status.

I. An Overview

According to the United States Citizenship and Immigration Services (USCIS) Public Engagement Division, USCIS operations are continuing despite the Federal Government shutdown. The fee-for-service activities performed by USCIS are not affected by a lapse in annual appropriated funding; thus, USCIS operations are not hindered. As such, all USCIS offices worldwide remain open for interviews and appointments as scheduled. E-Verify is the only exception and is unavailable during the shutdown. For more information about how the shutdown is affecting E-Verify, please visit www.dhs.gov/e-verify. Otherwise, there is no need to be concerned about the continuing operations of USCIS. For our clients, this means that Form I-140 and I-130 petitions and Form I-485 and ancillary applications filed with USCIS should continue to be processed and adjudicated as normal.

In addition, the U.S. Department of State (DOS) will continue as many normal operations as possible. According to the American Immigration Lawyers Association, operating status and available funding for the DOS should be monitored continuously and closely, and planning for a lapse in appropriations should be continued.

"I started my life with a single absolute: that the world was mine to shape in the image of my highest values and never to be given up to a lesser standard, no matter how long or how hard the struggle." – Ayn Rand

As the holiday season approaches, our firm wishes to extend our deepest appreciation to you for not only choosing our services but for contributing so greatly to your fields as well, despite the struggles you have faced both in your professional endeavors and your legal experiences with the USCIS. With every case we take, we are surprised and delighted by the efforts you have made to improve the state of the world—be it through medicine, computer science, renewable energy, or other valuable pursuits—by committing to your highest values and never giving up in the face of adversity. You have been shaping and are continuing to shape this world, and we feel privileged to address the legal obstacles that have stood in your way.

"I started my life with a single absolute: that the world was mine to shape in the image of my highest values and never to be given up to a lesser standard, no matter how long or how hard the struggle." – Ayn Rand

As the holiday season approaches, our firm wishes to extend our deepest appreciation to you for not only choosing our services but for contributing so greatly to your fields as well, despite the struggles you have faced both in your professional endeavors and your legal experiences with the USCIS. With every case we take, we are surprised and delighted by the efforts you have made to improve the state of the world—be it through medicine, computer science, renewable energy, or other valuable pursuits—by committing to your highest values and never giving up in the face of adversity. You have been shaping and are continuing to shape this world, and we feel privileged to address the legal obstacles that have stood in your way.

In early May 2012, USCIS made an unannounced change to its electronic filing (e-filing) system. For many years, e-filed I-140 petitions were processed exclusively by the Texas Service Center (TSC). However, after the change, the USCIS began to route e-filed I-140 petitions to the USCIS service centers based on jurisdiction. Therefore, I-140 petitions are now being sent to the Nebraska Service Center (NSC) if the petitioner is located in states/territories that fall within the NSC jurisdiction.

This change only affects I-140 cases where petitioners are within the NSC jurisdiction. NSC currently has I-140 jurisdiction over the following states and territories: Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming.

Recently, the United States Citizenship and Immigration Services (USCIS) announced an enhanced effort to increase the number of foreign entrepreneurs in the United States in order to boost the economy and aid in alleviating the staggering unemployment rates. In this announcement, USCIS verified that the National Interest Waiver (NIW) program under the employment-based second preference (EB-2) category is available for such entrepreneurs.

The USCIS provides several avenues for foreign entrepreneurs to gain permanent resident status in the United States. One of these methods is as the beneficiary of the Employment-Based Second Preference (EB-2) category. According to section 203(b)(2) of the Immigration and Naturalization Act (INA), such a beneficiary must hold an advanced degree or have exceptional abilities and have a permanent job offer from a valid U.S. employer. It also requires that the employer file a labor certification application to demonstrate the existence of a shortage in qualified U.S. workers.

On July 12 and 13, attorneys from our firm attended a "Business Representatives Conference" with U.S. Citizenship and Immigration Services ("USCIS") officials at the Texas Service Center ("TSC") and toured the Dallas Lockbox Facility. The conference allowed our attorneys to discuss a range of issues related to employment-based I-140 petitions and I-485 applications with representatives from USCIS Service Center Operations ("SCOPS"), Nebraska Service Center ("NSC") and TSC.

We provide a brief summary of new information provided by USCIS officials at the meeting:

I. Background

On October 20, 2010, the Administrative Appeals Office (AAO) designated two decisions as precedent. This marked the first time in more than a decade that the AAO has issued a precedent decision. Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm., Aug. 7, 1998) delineating the three-prong criteria for National Interest Waiver was the last precedent decision issued. These new precedent decisions follow U.S. Citizenship and Immigration Services Director Alejandro Mayorkas's goal expressed earlier this year to have the agency issue more precedent decisions as part of "USCIS's commitment to the clear and consistent application of immigration law."

Because the majority of the United States follow the common law, precedent decisions are extremely valuable in the legal community because they clarify statutory and regulatory laws and provide guidance to both the government and legal practitioners, allowing for greater predictability in the outcome of cases. Unless the decisions are reversed by a higher court, precedent decisions have the same force of law as codified statutes and regulations, and their holdings and legal reasoning are binding. This means that precedent decisions establish a rule that must be followed when deciding future cases, and legal practitioners can rely on and cite to the decision in the same manner that they would rely on and cite to a statute or regulation.

On August 24, 2010, the Administrative Appeals Office (AAO) sustained an appeal filed by LPY Law Group and approved the EB-1A I-140 petition that was originally denied by the USCIS Texas Service Center. Notably, this is the first sustained appeal that we are aware of where the AAO applied the two-step Kazarian analysis in making its decisions. We will address this in more detail below.

The EB-1A Petition and Decision

As background, the EB-1A I-140 petition was originally filed with USCIS in August 2009. The petitioner/beneficiary was a pharmacology 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 demonstrating that he met at least three criteria as required by 8 C.F.R. § 204.5(h)(3). The EB-1A I-140 petition was filed with Form I-907 Request for Premium Processing Service. The USCIS Texas Service Center Premium Processing Unit issued a Request for Evidence within 15 days of the filing, seeking additional information about all three criteria and referenced information not claimed nor mentioned in the original petition. It was clear that the USCIS had issued a boilerplate RFE and did not closely review the evidence submitted. (From our experience, such RFEs have been the trend for Premium Processing EB-1As). A timely response was submitted with additional evidence to support all three criteria: 1) participation as a judge of the work of others; 2) original contributions of major significance; and 3) authorship of scholarly publications.

In recent years, LPY Law Group 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 was 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 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, 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, 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. Here are two recent AAO decisions that sustained our NIW appeals.

On January 4, 2010, the Administrative Appeals Office (AAO) sustained an appeal filed by LPY Law Group and approved the Eb-1A I-140 petition that was originally denied by the USCIS Texas Service Center.*

The Eb-1A I-140 petition was originally filed with USCIS in November 2008. The petitioner/beneficiary was a materials scientist 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).