silmilawastage, Author at Silmi Law Firm

Additional USCIS Fees for Self-Petition Applicants in National Interest Waiver and EB1A Categories: Asylum Program Fees

If you are an employer looking to hire foreign employees, it is important to keep track of USCIS fee updates. These updates are made to align with the costs of providing USCIS services. USCIS is a fee-funded agency and 96% of USCIS funding is derived from these fees, highlighting the critical role of fee adjustments in sustaining operations and fulfilling the agency’s mandate.

Among the recent fee adjustments, One significant change worth noting is the introduction of the “USCIS Asylum Program Fee”. This new fee, intended to fund the costs associated with asylum processing, poses a significant financial responsibility for employers seeking to hire immigrant and non-immigrant workers.

With the implementation of the new rule, employers are now required to pay an additional $600 for certain immigration petitions such as I-140, and I-129 petitions.

Yet, amidst discussions focused on fee adjustment for employers, it is imperative to consider the implications for self-petitioning individuals. Unlike employers, self-petitioners seeking immigration benefits independently, rather than through an employer-sponsored petition are directly affected by fee adjustments made by USCIS.

Under the new fee structure, self-petitioners filing Form I-140 will face a “Reduced Asylum Program Fee” of $300. In fact, you are a self-petitioning individual who wants to apply under EB-1A or EB-2, National Interest Waiver, you are not completely exempt from fees and you still have to pay $300. When completing Form I-140 as a self petitioner, remember to check “Yes” in Part 1, Question 6.

Additionally, the final rule provides special provisions for certain petitioners. Nonprofit entities are completely waived from the Asylum Program Fee, and small employers with 25 or fewer full-time equivalent employees are required to pay $300.

With these new adjustments, USCIS aims to offset the costs associated with asylum processing, facilitating investments in essential infrastructure, system modernization, and overall user experience enhancement.

Written by: Sima Majnooni

 

The article is not a substitute for legal advice.

Understanding the Criteria for EB1A and NIW Self-Petitions

If you’re an individual with exceptional abilities or your work is in the national interest, you may be eligible for an EB1A or NIW self-petition for a U.S. green card. However, the application process can be complex and daunting, requiring extensive documentation and evidence to prove your eligibility. In this blog post, we’ll summarize the key insights from immigration attorney Sharif Silmi’s video “Membership Criteria in an EB1A or NIW Self Petition” and provide additional information to help you understand these types of self-petitions.

EB1A Self-Petitions

EB1A is a category within the Employment-Based First Preference that allows individuals with exceptional abilities to self-petition for a green card without an employer sponsor. To be eligible for an EB1A self-petition, you must demonstrate extraordinary ability in your field, which is defined as a level of expertise indicating that you are one of the few individuals who has risen to the top of your profession. This can be demonstrated through evidence of major international or national awards, membership in professional organizations, or publications in prestigious journals.
In addition to exceptional ability, you must also show that you intend to continue working in your field in the U.S. and that your work will substantially benefit the U.S. economy, culture, education, or welfare.

NIW Self-Petitions

The National Interest Waiver (NIW) is another self-petition category within the Employment-Based Second Preference that allows individuals whose work is in the national interest to apply for a green card without an employer sponsor. To be eligible for an NIW self-petition, you must demonstrate that your work is in the national interest, which can be shown through evidence that your work has a significant impact on your field or that it is related to a field that has a significant impact on the U.S. economy, culture, education, or welfare.
You must also demonstrate that you have the ability to continue working in your field in the U.S. and that it would be in the national interest to waive the job offer and labor certification requirements that are typically necessary for employment-based green cards.

Preparing a Successful Self-Petition

As Sharif Silmi explains in his video, preparing a successful self-petition requires careful attention to detail and a strong understanding of the eligibility criteria and application process. You will need to gather extensive documentation and evidence to prove your eligibility, which may include reference letters, publications, patents, and other achievements. Working with an experienced immigration attorney can help you navigate the process with confidence and increase your chances of success. Your attorney can help you gather the necessary evidence and prepare a convincing argument for why you meet the eligibility criteria for an EB1A or NIW self-petition.

Conclusion

EB1A and NIW self-petitions are valuable options for individuals who have exceptional abilities or whose work is in the national interest. By understanding the eligibility criteria and application process, you can increase your chances of success and achieve your immigration goals. Contact an experienced immigration attorney like Sharif Silmi to learn more about how he can help you navigate the process and achieve your immigration goals.

Adjustment of Status: Requirements of form I944

Form I-944 is a relatively new form used by United States Citizenship and Immigration Services to determine whether an applicant is inadmissible based on the public charge ground. The Form I944 is required for all employment and family based applications. According to Immigration and National Act (INA) section 212, a foreign national is considered inadmissible on public health grounds if he or she is more likely in the future to receive public benefits for more than 12 months within any 36-month period.

Adjustment of status applicants who are subject to public charge ground of inadmissibility must file Form I-944, Declaration of Sufficiency, along with Form I-485.

Required Documents for Form I-944

Form I-944 is somewhat voluminous with various sections requiring detailed information about you and members of your household. The following are the requirements for completing the form:

1. Proof of Household Income
This section of the form requires you to provide information on your household income. Required supporting documents for this include:
– IRS Transcripts of household members for the most recent tax returns
– IRS Transcripts of federal income tax returns for the last 3 years
– W-2s for the last 3 years
– Social Security Statement (if applicable)
– Pay stubs

2. Proof of Household Assets
Applicants whose gross household income is less than 125% of the HHS Poverty Guidelines may use assets held either in the United States or abroad. Examples include documents showing:
– Ownership of property, home, or real estate
– Ownership of automobile
– Evidence of mortgage
– Ownership of stocks, bank accounts, retirement accounts, etc

3. Liabilities/Debts Credit Report Score
– Car loans
– Mortgage
– Credit card debt
– Unpaid spousal or child support
– Unpaid taxes
– Evidence of bankruptcy resolution
– Other loans

4. Health Insurance
If you have health insurance coverage, you will need to provide your health insurance card. Other required documents include:
– IRS Form 1095-B
– Form 1095-C showing evidence of coverage renewal for the current year
– Letter from the health insurance company indicating statement of coverage
– Evidence showing future enrollment
– Transcript copy of IRS Form 8963
– Medical records

5. Public Benefits
– If you have ever received, applied for or certified to receive any kind of public benefit, you will need to provide all certifications, notices, letters or other related documents
– If you have been disenrolled from a public benefit or withdrawn, you will need to provide documents confirming the disenrollment

6. Education and Skills
Required documents include:
– High school degree
– College or higher degree
– Vocational school certificate
– Licenses of profession or occupation

7. Evidence of English proficiency
Examples include:
– Language certification certificates
– Evidence of current or literacy classes you’re currently taking
– If you are a native English speaker, you can provide college degrees and high school diplomas showing that you studied the native language for credit

8. Employment History
Proof of current employment, including dates of employment, name of employer, job title and duties
Proof of job offer from a U.S. employer

Other Documents
You may also need to provide the following:
– Marriage certificates
– Birth certificates of children
– Birth certificates of children of your spouse

Ultimately, the I-944 requirements must be met in order to complete your adjustment of status. Demonstrating to the government that you will not become a public charge will also depend on your English language proficiency and education level. One may also present business or investment related plans to show the officer that you intend to be self-reliant. If you are concerned about the I-944 requirements please contact our office at 443-329-2929 or at info@silmilaw.com and we will steer you in the right direction.

If you are looking for information on other types of visas and procedures, do take a look at our blogs page.

Most Common Misconceptions about the EB1A Visa

There are three classifications in the first category of employment-based immigration to the United States.

(1) EB1A, for individuals of extraordinary ability, is what this article will focus on.

(2) The second, EB1B, is for outstanding professors and researchers, you should note that this type of visa requires an employer’s sponsorship; and,

(3) EB1C, a classification for inter-company transferees, for example, a manager or an executive of a company with either a parent, affiliate, or subsidiary company in the US.

Addressing Misconceptions regarding the EB1A classification

We are going to discuss three of the most common misconceptions. The first one is whether one needs a Ph.D. degree to file for an EB1A visa or not, the second is whether you need to have an authorized published material to apply for an EB1A visa, and the third one is whether one needs to have a patent to apply for EB1A visa. The good news is none of these are required for an EB1A visa, and I will mention the reasons.

For the Ph.D. misconception, you will need to understand that there’s no education requirement for an EB1A visa. Unlike some other categories of visas, such as EB2, where there’s a general requirement for education, in eb1a, there’s no such requirement. Inevitably, most applicants have at least an undergraduate degree, but from a legal perspective, it’s not required. Unless you are a scholar or are engaging or endeavoring in some kind of scholarship, you may need a Ph.D., but that doesn’t mean you will surely be eligible for an EB1A based Green Card.

EB1A is a category of immigration for individuals who have risen to the highest level of their specific field of endeavor so that an individual may increase to this level without a Ph.D. For example, in the IT field, it’s rare to see someone doing advanced and innovative work related to AI, cyber security, or data science holding a Ph.D. degree.

The second misconception is whether you need to have an authorized publication. While having an authorized publication will be good evidence and help you get your EB1A approved, it is not required; you do not need to have publications to apply or qualify for Eb1a.

The third misconception is divided into two points:

  • number one, do I need to have patents to apply for Eb1a?
  • number two, if I have patents, does it mean that I qualify for Eb1a?

The answer to both of those questions is no. You do not need a patent to apply for EB1A, but if you have a patent, does that mean you will qualify for EB1A?

The patent demonstrates that you have an original contribution to the field of endeavor, but the test is not whether you have an original contribution; the test for this essential criterion is: whether the patent (i.e., the original contribution) is of significant significance to the field.

To determine whether your original contribution is significant, consider these four factors:

  1. Has the contribution had an impact on subsequent work in the field?
  2. Is there widespread discussion about the contribution?
  3. What is the (documented) economic, social, technological, or scientific impact of the contribution?
  4. Is there government interest/funding in the contribution?

Understand that while a patent is recognized as original contribution for it to count you need to prove its significance in light of the four factors listed above. One may also demonstrate the originality of their contribution without a patent!

Originality requires proof of concept, for example, it can be work product evidence that is attributed to the applicant or a definitive statement from an organization regarding the EB1A candidate’s involvement in the genesis of the contribution.

What does one really need to prove in order to be approved for an EB1A based Green Card?

It’s very important to know that there are three requirements to qualify for an EB1A based Green Card.

The first requirement, is that you have already sustained acclaim that is recognized within your field of endeavor. The second one is that you will prospectively benefit the United States based on being well positioned to provide future benefit to the U.S.

The third requirement, is that you will continue to work in your field of endeavor.

If you are questioning how to demonstrate sustained acclaim; the answer is that comes down to several criteria (you can find them on the USCIS website), but I should focus on an important point (I’ve mentioned previously) which is that nowhere in the legal requirements and Immigration laws will you find that the individual applying for an EB1A based Green Card must have a Ph.D.

I’m determined qualifying evidence for an EB1A petition look at your experience;

  • What roles have you performed in?
  • What contributions have you made?
  • What do you spend most of your time on?
  • What is the most important professional achievement you have made in your life thus far?

A uniquely tailored approach to EB1A highlights the important work that you have accomplished and what you’ve invested your time and energy into. That is where you need to look in gathering the building blocks of your EB1A based Green Card application.

Marriage Green Card vs. Fiancé(e) Visa

Are you a US citizen who recently married a foreign citizen? Well, congratulations, but now you must think of the various ways you can bring them to the US. Typically, there are two ways you can bring your significant other to the US.

You can go down the marriage green card road or go for a fiancé visa. There are different provisions for both, and you must be very careful when selecting the right option. Let’s take a deeper look at the issues you must consider:

How to Make the Decision between the Two?

Here are all the factors you must consider when choosing the right route:

The Place of Your Marriage

If you want to marry in the US, you must go for the fiancé K-1 route as it used to visit the US. Once you qualify for the K-1 visa, it is important to get married within 90 days of admission. You can have an unofficial party back home and then come to the US to cover the legalities. However, if you do not want to marry within the US, you can opt for the marriage green card visa.

Speed of Marriage

If you want to marry right away, you should not opt for the K-1 visa as it can take a long time to process the visa. This is why it is generally a better idea to wait for the K-1 visa to come through before you get married. Or, if you are ethically bound to marry as soon as possible, you can opt for a marriage green card.

US Presence

The K-1 visa is a faster way to get your spouse to the US, as it usually takes up to 5-10 months to get the visa. On the other hand, the green card visa takes a longer time, which is typically 10-16 months.

The Filing Fee

The filing fee for the fiancé visa is higher than the marriage visa, which means if you have a tight budget and cannot afford a high fee, you must go for a marriage visa.

Understanding the intricacies of both these visas and what option you should go for can be difficult, which is why you must get help from experts and allow them to direct you in the right direction. Silmi Law can help you explore all the options you have and give you all the information you need.

Expand Your Horizons this Year via the E-2 Investor Visa

Among their excellent qualities, Chinese people are well-known for are being business savvy and practical in money matters. In their daily lives, and especially in their business practices, they continue their ancient rituals and traditions, such as celebrating the Chinese New Year, also known across Asia as the Spring Harvest Festival, and regarded the world over as the Lunar New Year.  

The Lunar New Year is celebrated on February 1, 2022, ushering in the Year of the Water-Tiger. This is said to be the year of possibilities, attributing it to the majestic and mighty tiger traits, revered in various cultures as the mark of royalty or even deity. In the Chinese Zodiac, the Tiger, alongside the enigmatic Dragon, is the most notable animal. Those born under these signs are the leaders; they are brilliant, ferocious, and inspiring. Further, the Tiger-born are extraordinarily wise, charming, creative, courageous, and confident. They are always full of verve and passion, especially when achieving their goals.

We invite you to do the same; unleash the Tiger in you and pounce at your chance to experience a taste of the American Dream via the E-2 Investor Treaty Visa, a classification reserved for the business elite.

Here are a few essential things you need to know about the E2 Investor Visa:

  • The E-2 Treaty Investor Visa allows foreign nationals to live and work in the U.S. to do business. With it, setting up one’s own business or purchasing an existing business is possible.
  • Formally known as the E-2 nonimmigrant classification, it allows nationals of a Treaty Country (nations with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains an international qualifying agreement) to be admitted when investing a substantial amount of capital in a U.S. business.
  • The U.S. Department of State’s Bureau of Consular Affairs website has a Treaty Countries section which contains the list of countries with an E-2 Treaty with the United States. If you are a national of these countries, you may be eligible for this classification.
  • Countries like Russia, Brazil, and India do not have this treaty with the U.S; as such, nationals from these countries may not apply for this visa at present. Interestingly, not all the Chinese can also qualify as nationals from the People’s Republic of China (known as Zhongguo). Only citizens from the Republic of China (Taiwan) may apply for the E-2 Visa.
  • E-2 Visa holders may be granted a Social Security Number. Certain employees of such a person and their dependents may also be eligible for this type of visa and its benefits.
  • It is a nonimmigrant classification, so this does not lead to permanent residence or a green card. Holders of such a visa may enjoy a maximum initial stay of two (2) years in the United States.
  • Some confuse this for the EB-5 Immigrant Investment Visa, which leads to lawful permanent residence. The significant difference between the E-2 Investor Visa and the EB-5 Immigrant Investor Visa is that the latter requires a minimum investment of $500,000. In contrast, the E-2 only requires a “substantial” amount of capital. Also, the EB-5 visa requires creating ten full-time jobs for U.S. workers, while the E-2 visa has no job creation requirement. Lastly, as with most nonimmigrant privileges, the E-2 Visa undergoes a faster processing time.

Just being business-savvy like the Chinese and brave like the Tiger is not enough! You also need to obtain expert advice regarding the perplexing U.S Immigration system. If you’re eager to navigate the E-2 Investment course successfully and to learn more about other immigration options which may be available for you, call Silmi Law today! Take Matters Into Your Own Hands this Lunar New Year!

What do I need to know about obtaining an immigrant visa through marriage?

The visa application process can be expensive and time-consuming, so it is essential to rely upon accurate information regarding options for immigration to the United States as errors can result in the refusal of your visa application. If one is in a situation where marriage to a U.S. based individual is likely below, we provide factors to consider before deciding what action to take next.

So, let’s discuss what happens to your visa application when marriage is planned.

What do I need to know about obtaining an immigrant visa through marriage?

The visa application process can be expensive and time-consuming, so it is essential to rely upon accurate information regarding options for immigration to the United States as errors can result in the refusal of your visa application. If one is in a situation where marriage to a U.S. based individual is likely below, we provide factors to consider before deciding what action to take next.

So, let’s discuss what happens to your visa application when marriage is planned.

 

First, determine the status of your partner.

If you marry a U.S. citizen and are physically present in the U.S., you may be able to undertake an adjustment of status. If you are outside of the U.S. and are not yet married, you may be able to enter via a K-1 visa filed by your fiancé that will make you eligible to enter the U.S.A. to get married within 90 days. Afterwards, your partner will then have to petition you as their spouse. The family-based immigrant route through marriage is considered a relatively straightforward way to obtain a permanent resident card (green card), provided that the marriage was entered in good faith and that you can demonstrate the fundamental nature of the marriage union as part of the marriage-based immigration process is an interview by a United States Citizenship and Immigration Services (USCIS) officer to inquire about the nature of the relationship and whether it has been entered into in good faith.

Additionally, if your partner is a permanent resident but not a U.S. citizen, they will also be eligible to apply for you to become a permanent resident. However, delays may be possible before you receive your green card due to quotas under this category.

Also, for an individual who is without status in the U.S., adjustment of status to a green card is permitted in the case of marriage to a U.S. citizen but is more complex if one is marrying a permanent resident; in that case, you should consult with a qualified immigration attorney as several case-specific factors need to be weighed.

 

Are you planning to settle down in the U.S. or return home?

Individuals who enter the United States as tourists (B2 Visa) or students (F1) and are subsequently married can have complex issues that require a knowledgeable immigration attorney to advise, so their interests are protected. First, it is not permitted to enter the United States on a tourist or student visa (with some exceptions) if you intend to remain permanently in the U.S. However, among the only things more complex than U.S. immigration rules is love! One may never plan to meet someone during a visit in the course of study; however, things happen in life. Where circumstances change, intentions follow. Thus, if one enters intending to be on a brief visit and subsequently falls in love and is married, the law allows the visitor to file an adjustment of status according to their U.S. citizen spouse petitioning on their behalf.

 

Risk of Fraudulent Entry

The government will find a presumption of fraud to exist where an individual who enters the U.S. on a nonimmigrant visa such as a tourist or student visa applies for adjustment of status (to a green card) within 90 days of entry.

The applicant will then have the burden to overcome the fraud finding to successfully adjust their status to a green card regardless of whether they are in a good faith marriage. The scam here pertains to whether they committed fraud to enter the U.S. with existing intent to immigrate.

It is well-known that many travellers enter the U.S.A. under visitor visas to get married and then apply for their green cards with the U.S. to avoid the long process of waiting for their marriage-based immigrant benefit from their home countries through Consular Processing.

Customs and Border Patrol officers are trained to detect whether visitors to the U.S. are entering under false pretenses.

That is why it is always recommended to obtain a K-1 visa (Fiancé visa) if one intends to get married in the U.S. While the visa application process may take longer, it will save time and costly legal expenses in the long run if you intend to enter the U.S. to get married.

 

Conclusion:

Suppose you have an existing nonimmigrant visa and intend to marry in the U.S. and become a permanent resident. In that case, the most thoughtful and safest way is to have your partner file a K-1 Visa (Fiancé visa) for you so that you can enter into the U.S. to get married and apply for your immigration benefits within the United States. Alternately, suppose already married or you marry outside of the U.S. In that case, you may have your spouse file a marriage-based immigrant petition for you via consular processing, wherein you will be able to enter the United States with your green card already in hand. Following these essential guidelines will ensure a smooth family-based immigrant process and provide convenience and peace of mind.

Mistakes to avoid with EB1A recommendation letters

The below note by Attorney Sharif Silmi is adapted from the USCIS Policy Manual instructions to adjudicators regarding the probative value of ‘recommendation letters of support’ in an EB1A petition.


Many petitions to classify a person with extraordinary ability contain recommendation letters of support. Letters of support, while not without weight, should not form the cornerstone of a successful claim for this classification.


Instead, the statements made by the witnesses should be corroborated by documentary evidence in the record. Letters ought to be testimonial in nature, a qualified party
making specific statements based on their authority, personal knowledge and expertise.


The letters should explain in specific terms why the witnesses believe the beneficiary and their contributions to be of great significance and the caliber of a person with extraordinary ability. Letters that merely reiterate USCIS’ definitions relating to this classification (i.e. exceptional, significant, outstanding, of major significance) or make general and expansive statements regarding the beneficiary and their accomplishments are generally not persuasive.


Letters must be credible. The relationship or affiliation between the beneficiary and the witness is also a factor USCIS will consider when evaluating the weight of witnesses’ statements. It is generally expected that one whose accomplishments have garnered
sustained national or international acclaim would have received recognition for their accomplishments well beyond the circle of his or her personal and professional acquaintances.


In some cases, letters from others in the beneficiary’s field may merely make general assertions about the beneficiary, and at most, indicate that the beneficiary is a competent, respected figure within the field of endeavour. Still, the record lacks sufficient,
concrete evidence supporting such statements. These letters may be considered but do not necessarily show the beneficiary’s claimed extraordinary ability.


Ultimately, a successful EB1A petition will consist of extensive documentary evidence that is contemporary to the applicant’s contributions throughout their career. Support letters can put the contributions in context but are not a substitute for existing documentary evidence.