Author: silmilawastage

A team award is a recognition given to a group of individuals who have collectively accomplished a significant contribution or demonstrated excellence in a particular field or project. Unlike individual awards, which highlight the personal achievements of an individual, team awards recognize the collaborative efforts, and success of a team working together towards a shared goal. 

While team awards are valuable in acknowledging group efforts and achievements, they present a challenge when it comes to meeting specific criteria set by USCIS. USCIS’s two-step test for evaluating nationally or internationally recognized awards under the EB1A (Extraordinary Ability) category emphasizes individual recognition, which team awards inherently lack. Under this test:

First, USCIS looks at whether the individual personally received prizes or awards. This part considers the individual receiving the award, as opposed to the team or employer. Since team awards are given to the collective effort of a team, not an individual, they fail this requirement. 

Furthermore, since the team award does not satisfy the requirement of the first part, it is disqualified from further consideration under the EB1-A category. 

While it is true that the USCIS generally considers team awards to be less valuable than individual awards, they can still hold significant merit for the EB1A petition. Team awards can be particularly helpful in the following scenarios:

1. Team Award within Critical or Leading Role Criterion for Organization and Establishment 

Even though team awards may not be directly considered under the individual award category, they can be instrumental in meeting the critical role criterion for EB1A. The critical role criterion assesses the applicant’s critical or leading role in the success and outcome of an organization or establishment. Here, team awards can serve as documentary evidence of the applicant’s critical involvement and leadership within a successful team effort.

To effectively leverage the individual’s team awards under critical or leading role, applicants should clearly outline their leadership positions, unique skills, or innovative ideas that contributed to the team’s success. They should also support these claims with letters from team members, supervisors, or industry experts attesting to their unique contributions. Additionally, it is important to convey the significance of the team award by providing context about the competition, the standard of review and selection, and the prestige associated with the award. Finally, it is important to note that there might be an overlap between individual’s “leading or critical roles” and their “original contributions of major significance” in many scenarios. For instance, if you have been part of a team that received an award, this could be relevant to both criteria. In such cases, it is essential to clearly articulate your individual contributions and how they were pivotal to the team’s success. Highlighting your unique role and the impact of your work will strengthen the case for your EB1A application.

2. Team award within Final Merit Determination

Additionally, team awards can be elaborated under the final merit determination phase of the EB1A. In the final merit determination,  USCIS reviews the totality of the evidence to determine if the applicant is among the top in their field. Officers cannot restrict the types of evidence or deny a petition simply because a specific type is missing, as long as other qualifying evidence is provided. For instance, an officer may believe that an extraordinary individual should have a national or international award to be recognized as an extraordinary individual; however, the petition cannot be denied solely because such an award is not submitted, as long as other evidence meets the three qualifying criteria demonstrating the person’s extraordinary ability. 

Additionally, during the final merit determination, officers may evaluate any relevant and comparable evidence, even if it does not fall under specified regulatory criteria. This means that all submitted evidence is assessed collectively to determine the applicant’s extraordinary ability. For example, a team award, which might not fall under the national and international awards criterion, can still be considered as part of the final merit determination. The officers can take into account the significance of the team award, and how this evidence collectively supports the applicant’s claim of being at the top of their field. This flexible approach ensures that every piece of evidence is thoroughly evaluated in the final merit determination.

By Sima Majnooni

The L-1 Intra-Company Transferee visa is a non-immigrant work visa. It allows qualifying foreign employees of multinational companies to be temporarily transferred to a parent, subsidiary, affiliate, or branch of the same company in the U.S.

There are two main categories under the L-1 visa:

1. L-1A Visa for managerial or executive roles within the organization.

2. L-1B Visa for employees with specialized knowledge about the company’s products, and procedures. 

Each category has specific eligibility criteria and benefits, catering to different professional roles within a company.

It is important to understand the visa duration under L-1 if you are considering transitioning to permanent residency. For L-1A visa holders, the maximum stay allowed is seven years, while those with an L-1B visa can stay for up to five years. Initially, both visas are granted for three years, but extensions of two years for each are possible.  When your L-1 visa reaches its maximum limit, you may indeed be concerned about your options. In such a situation, you have several avenues to explore:

1. If you’re currently on an L-1A visa, you are indeed in an advantageous position when it comes to applying for a green card. The EB-1C immigrant visa category is an excellent pathway that mirrors the L-1A non-immigrant visa. Both visas are designed for individuals in managerial roles, making the transition from L-1A to EB-1C a seamless option. However, there is a catch—you’ll need sponsorship from your employer.

2. What if you have an L-1B visa? The duration for this visa is even shorter than that of the L-1A, with a maximum stay of 5 years. Unlike the L-1A, which is designed for managerial roles, the L-1B focuses on employees with specialized knowledge of the company’s products and procedures. Changing from an L-1B to an EB-1C visa is complicated as the person with specialized knowledge under L-1B might not be suddenly reclassified to fit the criteria of the EB-1C category, which requires the individual to have worked as a manager or executive abroad and to be employed in a similar capacity within the U.S. company. While an L-1B visa is a dual intent non-immigrant visa, transitioning to EB-1C might not be straightforward. The United States Citizenship and Immigration Services (USCIS) may reject your EB-1C application if your original entry into the U.S. was based on L-1B specialized knowledge and you seek the transition to managerial or executive roles under EB-1C.

However, if your initial L-1B petition demonstrates a combination of specialized knowledge and managerial duties, and if you meet other EB-1C requirements, then pursuing the EB-1C category might indeed be a viable option for you.

3. A strategic approach worth considering is self-petitioning through avenues such as the EB-2, National Interest Waiver (NIW), or the EB-1A category. These pathways offer increased flexibility as they do not require employer sponsorship. Individuals with extraordinary abilities or those whose work significantly contributes to the national interest of the United States stand a better chance of transitioning to the EB-1A, and EB-2 NIW category.

4. Alternatively, you might switch from an L-1B to an L-1A visa, granting you an additional two years of stay if you meet the eligibility requirements.

5. If none of these options are applicable to you, another avenue to explore is transitioning to an H-1B visa. However, it is essential to note that the H-1B visa operates on a lottery-based system, which means there’s no guarantee of selection.

6. As a last resort solution, you may consider recapturing previously unused time from prior visa statuses. This approach can prolong your current stay and open up additional opportunities to change your status, spanning from weeks to months.

Navigating the immigration process can be complex, but with the right knowledge and strategies, you can find the best pathway to secure your green card. Whether through employer-sponsored categories like EB-1C or self-petitioning options like EB-1A and NIW, understanding your options is key to making informed decisions. Once your L-1 visa limit is reached and you want to continue living and working in the U.S., you can either file for a change of status to switch to another nonimmigrant visa like the H-1B visa, or file to adjust status to the permanent resident through EB-1C.

This article does not replace personalized legal advice. 

For individuals seeking an EB-1A visa based on extraordinary ability in the business realm, letters of support become an essential part of their petition. These letters, whether from recognized experts in your field or professionals who are not personally acquainted with you, play a pivotal role in substantiating the extraordinary nature of your achievements. 

When it comes to business-related EB-1A petitions, disregarding the importance of these letters can prove to be a costly oversight. In fact, overlooking their significance can risk the entire EB-1A application process. These letters are not just supplementary; they are a necessity in showcasing your extraordinary ability and achievements in the business realm.

Let’s dive into some of the most important letters. Remember that each type of letter plays a distinct role in strengthening the EB-1A petition. Let’s delve deeper into the distinct roles these letters play.

Originality Letters

When demonstrating your original business-related contributions to the USCIS adjudicator, it’s essential to provide evidence that substantiates your original role in bringing forth a specific product, project, or outcome. One effective way to establish this originality is by presenting what we refer to as “Testimonial Letters.” These letters go beyond standard references; they serve as unambiguous endorsements of you having responsibility for the specific contributions and responsibilities within the company. Usually composed by someone within your vertical, ideally a high-ranking executive who has personal knowledge of your work, this kind of letter will outline your contributions and affirm the details of your role in the cited accomplishments.

Reputation and Credibility Letters

When showcasing the significance of your business-related contributions, it’s valuable to include reputation and credibility letters. These documents spotlight the wider impact of your work.

Reputation letters illustrate how your contributions have reverberated throughout your professional community, demonstrating the broader significance of your work on peers and similar organizations, or how its adoption has been beneficial to them. These letters are from individuals who have not directly collaborated with you but are familiar with the reputation your work holds. The goal of the reputation letter is to highlight how your work has influenced peer organizations, been adopted by them, and had a broader impact on the field. For example, it might show that your innovative approach was implemented by other companies, leading to industry-wide changes and setting new standards.

Credibility letters are endorsements from external esteemed professionals in your field or similar areas who attest to the quality and importance of your work. By providing third-party validation, credibility letters add weight to the significance and effectiveness of your contributions.

Both credibility and reputation letters serve to highlight the broad influence and scope of your work, offering valuable insights into its impact and reach.

Overarching Critical or Leading Role Letter

To establish your critical or leading role within a distinguished organization, you must demonstrate how your contributions have significantly impacted the organization’s outcomes. Your role must surpass routine responsibilities and have a tangible effect on the organization’s overall results. Merely listing daily tasks will not suffice unless they show substantial influence. 

Similarly, a leading role is indicated by your title, position within the organizational hierarchy, and the scope of your responsibilities, typically involving high-ranking positions such as CFO, Head of Engineering, or Program Manager. USCIS assesses both the title and associated job duties to confirm the leadership status, which may include overseeing organizations, managing functions within departments, and supervising personnel.

The overarching critical or leading role letters must detail your contributions and their impact on the organization’s outcome. 

Ultimately, USCIS will look at the specifics within the content of these letters, as they serve as pivotal evidence in helping to satisfy the specific regulatory requirements of the EB-1A visa. The quality and credibility of these letters are paramount in the eyes of the USCIS adjudicator, particularly in assessing the applicant’s extraordinary ability. In the realm of technology and business, where success is gauged by impact, growth, and innovation, letters from esteemed industry figures corroborated by existing documented evidence in the record can be a game-changer for your EB1A case.

By Sima Majnooni with contributions from Sharif Silmi

In the realm of EB-1A visas tailored for individuals with extraordinary abilities for BUSINESS related contributors, the importance of performing a critical or leading role within an organization cannot be overstated. You might be curious about what exactly qualifies as a critical or leading role within a distinguished organization. Well, the assessment involves a two-pronged approach: (1) the individual MUST hold either a Critical Role or a Leading Role, or both;  (2) within a Distinguished Organization.

Critical Role

A critical role is the individual’s contribution to an organization that is deemed to have a significant impact on the organization’s outcomes, goals, or overall success. When USCIS officers assess whether a person has a critical role, they look for evidence that shows the person’s contributions are vital and have substantial influence on the organization’s activities. In fact, If the person’s work directly affects the organization’s core activities or key outcomes, it is considered a “critical role”.

It is crucial to understand that USCIS does not place a great emphasis on an individual’s daily tasks or routine responsibilities within an organization unless they demonstrate a significant impact on the organization’s overall outcomes or strategic direction. The USCIS officer looks for contributions that go beyond routine responsibilities, ones that have a tangible impact on the organization’s overall outcome. 

Leading Role 

The leadership role can be demonstrated by your title, hierarchy within the organizational structure, and the scope of your responsibilities. Typically, a leading role occupies a high-ranking position like Chief Financial Officer (CFO) in the overarching organization, Head of Engineering within a specific division, or even Program Manager for a subdivision. USCIS assesses both the title of the role and the associated job duties to confirm its leadership status. You may oversee organizations, manage a function within departments, and supervise other personnel. 

Distinguished Organization

Finally, when it comes to the credibility of an organization, USCIS considers the general and specific reputation of the organization. 

General Reputation of an Organization 

The general reputation of an organization reflects the overall standing or perception in the public eye, typically including brand recognition, trustworthiness, and perceived reliability across various stakeholders.

Specific Reputation of an Organization 

In contrast, specific reputation pertains to how the organization is viewed within your particular field, area, or domain. This could include its reputation for a specific product, initiative, or innovation, among other specific attributes.

To support your critical or leading role, you can include letters from trustworthy and distinguished individuals within the organization who can provide detailed and persuasive insights about your contributions and clearly illustrate how your efforts have driven substantial progress and success within the company.

By Sharif Silmi, Sima Majnooni

Navigating the complexities of the EB1A petition process requires a strategic approach and an in-depth understanding of the criteria involved. One of the most critical elements in this process is articulating the “field for which classification is sought.” This aspect is not just a formality; it is the cornerstone of your entire petition, shaping how your achievements and contributions are perceived.

Defining the Field with Precision

The field for which classification is sought must be clearly defined, and it should reflect the petitioner’s area of extraordinary ability. This definition is crucial because it frames all subsequent arguments and evidence presented in the petition. A well-defined field allows for a cohesive narrative that demonstrates the petitioner’s sustained national or international acclaim.

When defining the field, specificity is key. For instance, instead of broadly stating “engineering,” a more precise definition might be “renewable energy engineering with a focus on solar power technology.” This level of detail ensures that the petitioner’s achievements are contextualized within a specific, recognizable area of expertise.

Once the field is defined, the next step is to align the petitioner’s achievements with this field. This involves showcasing how the petitioner’s contributions have significantly impacted the area of expertise. The petitioner must provide evidence of sustained acclaim, such as contributions of major significance, performing in a critical role, commanding a high salary in relation to one’s peers in the field, reviewing and judging the work of others, and membership in a professional organization based upon outstanding achievements judged by national or international experts.

The Role of Testimonial Letters

Testimonial letters play a vital role in strengthening the argument for extraordinary ability. These letters should come from experts who can speak authoritatively about the petitioner’s impact on the defined field. The letters must be detailed, providing specific examples of the petitioner’s contributions and their significance within the field.

In the context of “high voltage transformer technology,” a testimonial letter might describe the petitioner’s innovative design improvements that have enhanced energy efficiency and reliability in power distribution systems. Such detailed endorsements from industry participants and recognized experts provide compelling evidence of the petitioner’s extraordinary ability.

The field for which classification is sought is more than a mere label; it is the foundation upon which a successful EB1A petition is built. By precisely defining the field, aligning achievements with this field, leveraging testimonial letters, and meticulously addressing the USCIS criteria as an avenue to demonstrate one is among the highest percentage of their specific field, petitioners can present a compelling case for their extraordinary ability. This strategic approach not only enhances the coherence of the petition but also significantly increases the likelihood of a favorable outcome.

Sharif Silmi
Managing Attorney, Silmi Law

If you’ve recently been laid off while on an H-1B visa, it is totally understandable to feel stressed. But instead of letting that overwhelm you, it’s time to explore your options and take matters into your own hands. Even though things might seem tough, there are still paths you can take to move forward. Here are a few immediate actions you can take: 

First off, let’s talk about the 60-day grace period. After your H-1B employment ends, you still have two months to find a new employer sponsor. It’s your chance to hustle and find a new job. 

Additionally, you might qualify for one-year employment authorization documents if you can prove you have “compelling circumstances”. You have to show you’re the main beneficiary of an approved form I-140 and as based on the Visa Bulletin you’re not currently eligible for an immigrant visa based on your priority date, category, and country, and you can show a compelling reason for employment authorization.

How about if you have a pending or approved I-140? 

If you have a pending I-140 with your current employer, your situation is just like other H-1B holders, You have to either find a new employer or leave the country.  If your H-1B validity is nearing its end, you must go through the same H-1B lottery process again or leave the country. On the other hand,  If you still have a few years left on your H-1B, for instance, two years out of the initial three  years, you have the flexibility to seek new job opportunities and find a new employer.

If your I-140 has been approved but it has been less than 180 days since approval, your I-140 will be considered revoked if you leave your employer. In this case, you must refile the I-140 with a new employer or through a self-petition. 

In fact, exploring your options beyond traditional employer-sponsored visas can open up a world of opportunities. Self-petitioning for visas like the O-1, EB-1A, and National Interest Waiver (NIW) gives greater independence and flexibility. 

Finally, If your I-140 has been approved for more than 180 days, your priority date is locked in, allowing you to retain your priority date.

Ultimately, If you find yourself facing the possibility of leaving the country and prefer to explore alternative options, there are a few additional solutions worth considering:

If your previous employer is understanding, they may allow you to extend your termination date. This will allow you to search for a new job without the added stress of worrying about your visa status. That’s why you should avoid burning bridges with your employer. Sometimes, your employer might give you extra time as part of a severance package. This could stretch your deadline to another 60 days, making it a total of 120 days.

For example, let’s say you were told on May 15, 2024  that your job is ending. But then your employer gives you a severance package extending your last day to June 14, 2024. That means your 60-day grace period starts from June 14, 2024. 

If you’re the spouse of an H-1B visa holder, applying for an H-4 visa might allow you to stay in the United States.

You can also consider a change of status to an F-1 student visa or a B-1 business visitor or B-2 tourist visa.

While these options may not be ideal, they can provide temporary solutions to extend your stay in the United States while you explore other avenues for immigration or employment opportunities.

The article is not a substitute for legal advice.

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.

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.