Report on DOD Memo on Security Risks in MAVNI Program

Report on DOD Memo on Security Risks in MAVNI Program

We have been posting periodic updates on the status of the Military Accessions Vital to the National Interest (MAVNI) Program, which was suspended for new applications in late 2016 [see article]. MAVNI is a Department of Defense (DOD) program that provided certain aliens with a path to legal status and citizenship in return for military service.

It was known that MAVNI had been suspended to assess apparent security vulnerabilities in the program. On August 1, 2017, James Rosen of Fox News reported with greater detail on the specific issues that led to the suspension of MAVNI [link].1

MAVNI Program

Rosen reports that the Inspector General of the DOD recently released a report identifying “serious problems” with the MAVNI program. Although the report remains classified, Rosen was able to glean details from various sources.

According to Congressman Steve Russell (R, OK-5), MAVNI was suspended due to the Pentagon’s concerns that it has been subject to “foreign infiltration.” According to another unnamed member of Congress, the DOD has not provided answers regarding the status of the “missing enrollees” in question. Rosen’s sources disclosed that the Pentagon identified additional problems regarding MAVNI in addition to the threat of foreign infiltration, such as:

  • A vetting backlog that led to the enrollment of soldiers prior to the completion of background checks; and
  • A “drift” in MAVNI criteria wherein the program was used to hire workers lacking specialized skills (e.g., cooks, drivers, and mechanics).

However, Rosen noted that there is no evidence in the public domain that “ISIS, Al Qaeda, or any other terrorist groups have penetrated the MAVNI program,” while noting that this does remain an ongoing concern for the DOD.

Given the limited information available as to the extent of the problems in the MAVNI program and the DOD’s internal deliberations, it is impossible to predict whether the MAVNI program will remain in place or ultimately be terminated. It can be concluded, however, that if the security vulnerabilities have been determined to be as severe as Rosen’s reporting indicates, especially with regard to foreign infiltration, the future of MAVNI is in a state of severe doubt. Rosen’s sources also suggested that Defense Secretary James Mattis “had developed his own concerns about MAVNI.”

Rosen also noted that there is currently pending litigation by seven MAVNI enrollees, who claim that the DOD’s decision to add additional restrictions on access to security clearances in September 2016 ended up “crippling their military careers.”

We will continue to update the site with information about the status of the MAVNI program as it becomes available. While we cannot attest to the severity of the security concerns inherent in the MAVNI program, the government should eventually look to compensate those it made promises to and who were left in limbo in the event that the suspension is not lifted. Those affected should consult with an experienced immigration attorney about their overall immigration situation.

______________________

  1. Rosen, James. “Pentagon investigators find ‘security risks’ in government’s immigrant recruitment program, ‘infiltration’ feared.” Fox News. Aug. 1, 2017. Foxnews.com

Published at Mon, 07 Aug 2017 18:10:00 +0000


David Allen Legal Tuesday: How to Find a Good Lawyer

David Allen Legal Tuesday: How to Find a Good Lawyer

Call us Toll Free (877) 876-4800
http://www.DavidAllenLaw.com
http://www.legalvideoblog.com

Attorney David Allen discusses the important factors in selecting lawyers and suggests the best way to go about finding one. He references studies done by the American Bar Association. He also provides in very pragmatic suggestions.

David Allen & Associates helping injured and disabled people throughout the west for 30 years.

We offer successful representation in Personal Injury, Social Security Disability and Insurance Disability claims.

Visit our offices for a free initial consultation.

In California:
5230 Folsom Blvd.
Sacramento, CA 95819
(916) 455-4800

Sherwood Executive Center
5250 Claremont Avenue
Stockton, CA 95207
Phone: (209) 473-4800

1300 Clay Street, Ste. 600
Oakland, CA 94612
(510) 663-4600

Fremont Office Center
3900 Newpark Mall Dr.
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Newark, CA 94560
(510) 663-4600

In Nevada:
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Reno, NV 89501
(775) 786-1020


September 2017 Visa Bulletin | Report, Prediction & Analysis

September 2017 Visa Bulletin | Report, Prediction & Analysis

September 2017 Visa Bulletin

September is the final month before the end of the fiscal year. With that comes a new start for visas across the board. Hundreds of thousands of people have petitioned for green cards and are waiting for their priority dates to become current. To see where your date stands and what you may be able to expect in in the future, take a look at the predictions and analysis in this September 2017 visa bulletin.

September 2017 Visa Bulletin Overview

Like the last few months, the dates seem to be stagnating. More of the dates have been over subscribed, meaning that many of the categories have not moved from last month and others have even retrogressed several years. Take a look at how the dates have moved in the new September 2017 visa bulletin.

Family-Based Visa Preference Categories

The green cards in the family-based category have been divided into four preference levels according to the family member that sponsors the green card. Within these levels, there are five chargeability areas that are as follows: China, India, Mexico, the Philippines, and all other countries (or the general category).

Take a look at how the dates for the family-based green cards have moved in the September 2017 visa bulletin.

First Preference

This first preference, the F1 green card, is meant for the children and dependents of U.S. citizens.

  • The dates for the general category, China, and India have all retrogressed and moved backward from December 22, 2010, to May 1, 2010.
  • The date for Mexico has not seen any movement and remains at February 1, 1996.
  • The date for the Philippines has moved forward 10 weeks from October 15, 2006, to January 1, 2007.

Second Preference

The F2 green card is designed for the children and spouses of lawful permanent residents (green card holders). The F2 preference level is further divided into two subcategories:

F2A: which is for the spouses of lawful permanent residents as well as their unmarried children under the age of 21.

  • The dates for the general category, China, India, and the Philippines have all moved up one week from September 22, 2015, to October 1, 2015.
  • The date for Mexico has moved forward 3 weeks from September 1, 2015, to September 22, 2015.

F2B: which is for the unmarried children of lawful permanent residents over the age of 21.

  • The dates for the general category, China, and India have all seen no movement and remain at November 1, 2010.
  • The date for Mexico has seen no movement and remains at July 1, 1996.
  • The date for the Philippines has moved forward three weeks from December 8, 2006, to January 1, 2007.

Third Preference

The third preference level is the F3 green card, which was created for the married children of U.S. citizens.

  • The dates for the general category, China, and India have all seen no movement and remain at July 8, 2005.
  • The date for Mexico has seen no movement and remains at April 8, 2005.
  • The date for the Philippines has moved forward three weeks from January 22, 1995, to February 15, 1995.

Fourth Preference

Lastly, the lowest preference level for family-based immigration, the F4 green card, is meant for the siblings (brother and sisters) of U.S. citizens.

  • The dates for the general category and China have retrogressed for almost than two and a half years from May 8, 2004, to January 2, 2002.
  • The date for India has retrogressed over one year and nine months from September 22, 2003, to January 1, 2002.
  • The date for Mexico has not seen any movement and remains at September 15, 1997.
  • The date for the Philippines has moved forward 7 weeks from April 8, 1994, to June 1, 1994.

Family-Based Visa Chart

Here is the chart for family-based green cards from the September 2017 visa bulletin.

September 2017 Visa Bulletin Family Chart

Employment-Based Visa Category Dates

The employment-based green card category has five preference levels that vary according to the occupations and qualifications of the individuals. For the purposes of this visa bulletin report and analysis, we will only focus on the first three levels as they see the most applicants.

Like the family-based green cards these preference levels are also divided into six chargeability areas: the general category, China, India, Mexico, the Philippines, and Central America (or El Salvador, Honduras, and Guatemala).

Here are the employment-based dates according to the visa bulletin for August 2017.

First Preference

The most prestigious green card is the EB-1, which is reserved for individuals who have attained extraordinary achievement, outstanding researchers and professors, or the managers and executives of multinational companies.

  • The dates for the general category, Central America, Mexico, and the Philippines are all current.
  • The dates for China and India have seen no movement and remain at January 1, 2012.

Second Preference

The EB-2 is the most popular employment-based green card by far. Those who qualify either have an advanced degree, exceptional ability in their field, or are eligible for an National Interest Waiver.

  • The dates for the general category, Central America, Mexico, and the Philippines have all gone forward 8 months from April 1, 2015, to January 1, 2016.
  • The date for China has moved forward three weeks from April 22, 2013, to May 15, 2013.
  • The date for India has moved forward one month from July 22, 2008, to August 22, 2008.

Third Preference

The final level that we will focus on is the EB-3, which is meant for workers with bachelors degrees as well as skilled and unskilled labor occupations (or other workers). You will notice below that the “other workers” group has slightly different dates.

  • The dates for the general category, Central America, and Mexico are all current.
  • The date for China has seen no movement and remains at January 1, 2012.
  • The date for India has moved forward three months from July 15, 2006, to October 15, 2006.
  • The date for the Philippines has moved forward five months from June 1, 2015, to November 1, 2015.

Employment-Based Visa Chart

Here is the chart for employment-based green cards from the August 2017 visa bulletin.

September 2017 Visa Bulletin Employment Chart

September 2017 Visa Bulletin Predictions

While these date movements and retrogressions may seem problematic, there is hope. Because the 2018 fiscal year will begin on the 1st of October, many of the dates will reset. For example, the F1 category will return to December 22, 2010. The F4 category will also reset, though the new dates will be announced in October. Speak with your immigration attorney to learn exactly where your date will stand in the 2018 fiscal year.

Want to Stay Up-To-Date?

No one wants to be behind on the updates. Don’t miss another visa bulletin by subscribing to the Department of State’s newsletter. All you need to do is send an email to [email protected] with the message “subscribe visa bulletin” to stay in-the-know when it comes to your green card status.

How Our Immigration Attorneys Can Help

One of the most common mistakes that people make when applying for a green card is attempting to go it alone. This can easily lead to crucial mistakes that can cost you both time and money. To make sure that you are on the optimal path to the U.S., it is important to have an expert green card lawyer in your corner.

Our top-notch team of immigration attorneys have years of experience helping people from all over the world immigrate to the U.S. either through their families or through their employment. We help you with everything from filing your petition to dealing with unexpected issues such as RFEs and work with both the beneficiary as well as the sponsor.

If you have any questions about the September 2017 visa bulletin and would like to contact one of our attorneys, feel free to fill out this consultation form to schedule a consultation today.

See last month’s August 2017 visa bulletin here.

Related Topics

Published at Fri, 11 Aug 2017 12:39:46 +0000


E2 Visa Denied | Reasons, Options, Extension Denial

E2 Visa Denied | Reasons, Options, Extension Denial

E2 Visa Denied

For foreign investors, the E2 visa is one of the best ways to work in the U.S. through your investment. However, due to the complicated nature of immigration law, obstacles can always arise. If you have had your E2 visa denied or are looking to prevent a denial, then here are some common reasons why it happens and how you can avoid it.

How the E2 Visa Works

There are several benefits to be enjoyed by qualified investors who manage to obtain an E2 visa. It’s non-competitive, has a relatively short processing time, and can be extended indefinitely under the right circumstances.

However, to reap these benefits, there are specific rules that must be fulfilled in order to be eligible. First, you must be an investor from a country that holds a treaty of commerce and navigation with the U.S. You do not necessarily need to be currently living there, but you must be a national of one of these countries.

Second, you need to invest a substantial amount into a U.S. enterprise. This applies whether you are purchasing an existing business or starting a new one. The investment amount is not specified, but the general rule of thumb is to invest a greater percentage in smaller companies than in larger ones.

Third, the enterprise must not be marginal, meaning that it must be able to support you and your family now or at some point in the future.

Fourth, you must be coming to the U.S. with the sole purpose of developing this enterprise. You can demonstrate this by showing that you hold 50% ownership in the enterprise.

With these requirements in mind, we can take a look at some of the common reasons why the USCIS may deny your E2 visa.

E2 Visa Denied: Top Reasons

If you have already had your E2 visa denied, then the USCIS has enclosed the details and reasons for your denial in the letter they sent you. If you are in the process of petitioning for an E2, here are a few of the top reasons why you may receive a denial.

1. Your Investment is not Substantial

Unfortunately, because the USCIS does not numerically define what a substantial investment is, it can be very difficult to gain approval without the help of an immigration attorney. The official website gives these remarks about the investment:

  • It must be substantial compared to the value of the enterprise or the cost of starting it.
  • The investment must demonstrate that you are committed to the enterprise’s success.
  • It should also be enough so that it is apparent that you are likely to successfully advance the enterprise.

As previously stated, if the enterprise is small, then the invested amount must be a greater percentage of its value.

For example, if Hans wants to invest in a convenience store worth $150,000, he may need to invest almost all of that amount in order to qualify. However, if he is interested in investing in a restaurant chain worth $3 million, the required percentage would be lower.

In the end, the only way to know for sure is through experience. The best way to access this experience is to work alongside an immigration attorney who has extensive experience filing E2 petitions.

2. The Enterprise Is Marginal

The USCIS will look at the enterprise itself to determine whether or not it holds the potential to create an income for you and your family. If it is not currently capable of this, then the USCIS will judge the future of the enterprise. If it does not seem feasible that the enterprise will reach that level within 5 years of your E2 visa approval, your petition will likely be denied.

3. Your Investment is Not Irrevocably Invested

Generally, the USCIS will be interested in making sure that you are not taking advantage of the immigration system. If your funds are easily retrievable so that you could recover them upon entering the U.S., then the USCIS may view the investment as fraudulent.

To avoid this, you should have already invested a significant amount or bought resources such as inventory or rented the physical premises. In the end, your funds must be considered “at risk” in the commercial sense.

4. You Do Not Own 50% of the Enterprise

The best way to show that you are committed to the successful development of the enterprise is by having at least 50% ownership in the business. In lieu of this, according to the USCIS, you can also have “operational control through a managerial position or other corporate device.”

5. The Enterprise is Not Bona Fide

Again, the USCIS is interested in making sure that no one takes advantage of the system. If the enterprise does not appear to be a legitimate entity engaged in the trade of goods and/or services under the local law, then you will likely have your E2 visa denied.

6. You Did Not Demonstrate Strong Ties to Your Home Country

Unfortunately, unlike the H-1B and O-1 visas, the E2 is not considered “dual intent” by the USCIS. This means that you cannot have an intent to immigrate permanently to the U.S. and that you intend to leave as soon as the work on your E2 enterprise is completed.

Proving this intention is done by demonstrating that you have strong ties to your home country either through personal interests (family, work) or by maintaining a permanent residence in your home country. This shows the consular officer that you have a reason to return to your country rather than stay in the U.S.

This is a common reason that the USCIS uses to have your E2 visa denied. To avoid this, make it abundantly clear that you do not intend to stay in the U.S. after the work on your enterprise is completed.

7. You Do Not Have a Supervisory Position

This requirement is specifically for the employees of E2 treaty investors. Since an employee would apply to receive an E2 as well, they are also vulnerable to having their E2 visa denied.

According to the regulations, the employee of an E2 treaty investor must meet the following requirements:

  • You must be from the same treaty country as the investor
  • You must be considered an “employee” under the law of the state in which you will be working.
  • Your position must be executive or supervisory. In lieu of this, you must at least have special qualifications that warrant your presence in the U.S.

It is this last requirement that seems to be the issue most often. Executive and supervisory positions should involve having control over the overall function of the company as a whole or a large part of it. Having special qualifications means that you are essential to the successful operation of the enterprise.

What Are My Options?

While having your E2 visa denied can be a major setback in your immigration plans, there are a few options you can take once you receive that denial letter.

Appeal

If you believe that the adjudicating officer’s decision was incorrect and you did not go through consular processing, then it may be possible to appeal the decision to a third party called the Administrative Appeals Office (AAO).

While this may seem like a second chance, the AAO has a long history of upholding the decisions of the adjudicating officers. A very small percentage of decisions are overturned or even remanded.

However, if you went through consular processing, your denial letter will most likely state that the consulate decision cannot be appealed. The letter will also encourage you to take this next step in response to your denial.

Reapply

While appealing may not be a viable option, you can always reapply for your E2 visa. This will require you to file another I-129 petition and make another appointment with the consulate in your home country.

Because the E2 visa denial letter will tell you why your visa was denied, you will have the opportunity to rectify any issues and reapply once you have made significant changes to your circumstances.

221(g) Refusal

If you had your E2 visa denied through an administrative processing refusal under section 221(g) of the Immigration and Nationality Act, you may still have hope. This kind of refusal is not a complete denial, but rather more of a request for evidence. These are typically issued due to these reasons:

  • The documents or information were insufficient
  • The officer needs to re-examine the case more closely
  • You need to go through more background checks

The consulate will present you with a list of documents or information that need to be submitted in order to avoid a denial. Think of this refusal as a buffer step before outright denial. Be sure to work with your immigration attorney to take advantage of this step within the given time frame.

Consider the Alternatives

Aside from reapplying, you may want to take a look at some other common pathways to working in the U.S. Work with your immigration attorney to learn if these or any other alternatives wold be appropriate for your situation.

H-1B

This visa requires that you have a job offer for a specialty position from a U.S. employer. The main benefit of this visa is that it is a dual intent visa that allows holders to maintain an intent to immigrate to the U.S. through a green card.

EB-5

If getting a green card is your goal, you may want to consider bypassing the nonimmigrant visa step altogether. With an EB-5 green card, your investment can allow you to live permanently in the U.S. This investment program, however, does have quantified investment requirements. If you are investing in a rural area or one of high unemployment, you need to invest at least $500,000. For all other cases, the investment amount must be $1 million.

Why Was My Extension Denied?

If you have had your E2 extension denied, chances are that you were unable to maintain one of the above requirements. For the most part, the USCIS denies E2 extensions if they deem that the enterprise has become marginal. You must not only prove that your enterprise has the potential to succeed, but you must also make it succeed in order to remain in the country under E2 status.

How an E2 Visa Attorney Can Help

When a petition is denied, it is more important than ever to have an experienced attorney by your side, especially if you are still in the U.S. An E2 visa requires a significant amount of irrevocable investment. Attempting to navigate this situation on your own could lead to financial disaster and a wasted investment.

At SGM Law Group, our attorneys have serviced many clients that have had their E2 visa denied. Because of this, our lawyers are well-versed in the standards that the USCIS are looking for when it comes to your investment, your enterprise, and your employees.

Don’t leave your investment opportunity up to chance. You can fill out our contact form to schedule a consultation and have our attorneys work with you to protect your investment.

Published at Wed, 19 Jul 2017 13:00:01 +0000


ICE Enters Into 287(g) Agreements With 18 Texas Counties

ICE Enters Into 287(g) Agreements With 18 Texas Counties

If you need an experienced and knowledgeable U.S. immigration, deportation, or immigration appeals attorney, please call our toll-free number at:

(866) 456-­8654 | * Call Us – Toll Free *

or at our NYC number:

(212) 202-­0342

You can also contact us with Skype:

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Have a Question?

Ask us immigration, deportation or immigration appeals questions online with our convenient “Ask a Question” form:

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Want to Schedule a Consultation?

You can schedule a consultation with us on Skype, over the phone, or in person by using our “Online Consultation” form (we offer a 15 minute free consultation for asylum seekers, and our fee is only $160 per 45 minutes for all other cases):

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Published at Tue, 01 Aug 2017 23:22:00 +0000


ICE Enters Into 287(g) Agreements With 18 Texas Counties

ICE Enters Into 287(g) Agreements With 18 Texas Counties

If you need an experienced and knowledgeable U.S. immigration, deportation, or immigration appeals attorney, please call our toll-free number at:

(866) 456-­8654 | * Call Us – Toll Free *

or at our NYC number:

(212) 202-­0342

You can also contact us with Skype:

Free Skype CallFree Skype Call

Have a Question?

Ask us immigration, deportation or immigration appeals questions online with our convenient “Ask a Question” form:

Ask a Question 

Want to Schedule a Consultation?

You can schedule a consultation with us on Skype, over the phone, or in person by using our “Online Consultation” form (we offer a 15 minute free consultation for asylum seekers, and our fee is only $160 per 45 minutes for all other cases):

Online Consultation

Attorney Advertising

Prior results do not guarantee similar outcomes

Published at Tue, 01 Aug 2017 23:22:00 +0000


National Interest Waiver (NIW) for Medical Physicist

National Interest Waiver (NIW) for Medical Physicist

National Interest Waiver (NIW) for Medical Physicist

One of the best parts about immigration law is the fact that you get to work with exceptional people from all over the world and from all walks of life. Tackling challenges and learning about fascinating new industries are just some of the many benefits. When a medical physicist came to us with a desire to get a green card through a National Interest Waiver, we were able to accomplish both.

Background

The EB-2 is a diversified employment-based green card. Those who qualify are typically advanced degree holders and people who can prove that they have exceptional ability in their field.

However, both of these groups still require a job offer from a U.S. employer and a PERM Labor Certification. This latter item involves having the employer go through a recruitment process with the intention of filling your position with a qualified U.S. worker. This is a long process that can easily be done incorrectly, adding time and expense to your immigration process.

Fortunately, there is a third group that qualifies for the EB-2 green card. For those that either don’t have an employer or don’t want to go through the PERM process, there is the National Interest Waiver (NIW).

To qualify for an NIW, you need to demonstrate that your work will be in the national interest. It sounds straight forward, but as usual, nothing is simple in the world of immigration law.

For most NIW applicants, they need to show three things:

  • That their work will greatly benefit the society, culture, education, economy, job market, health, science, or technology of the U.S.
  • That they are equipped with the capability of developing the work. The USCIS will look at things such as education, past successes, current progress, and plans you have for the future of your work.
  • That the U.S. would stand to benefit on balance, meaning that it gains more from waving the PERM requirement than it does by enforcing it.

These were the requirements we needed to keep in mind when a medical physicist retained our services for an NIW. Knowing what lay ahead, we rose to the challenge and strove to understand the client’s work.

The Case

As a senior medical physicist, the client had decades of experience working with radioactive materials and radiation testing. With a PhD, several graduate and undergraduate degrees, certifications, exclusive memberships, and specialized certifications, our client was almost qualified for an EB-1A for people with extraordinary ability.

However, if immigration policies have taught us anything, it’s that advocacy, or the way the facts are presented, are almost as important as the facts themselves. A qualified individual who does not advocate his or her case well is likely to be denied. On the other hand, a well-advocated case can be approved even if the applicant’s qualifications are not as solid.

In this case, the client was more than qualified to demonstrate that his practice would be in the national interest. What we needed to do was gather the evidence necessary and argue the facts so that the USCIS would be hard-pressed to deny the green card.

So we worked alongside the client in an effort to learn more about the practice of medical physics and how to best explain the necessity of the NIW to the USCIS. We curated the items for evidence, developed our case, and submitted it.

The Verdict

Fortunately, between the qualifications of our client and the hard work of our attorneys, the USCIS approved the NIW without issuing a Request for Evidence. With the right strategy and careful consideration for the details, we were able to help our client obtain his EB-2 green card.

Another SGM Law Group Success Story

So whether you’re an entrepreneur, researcher, or medical physicist, getting a National Interest Waiver is simply a matter of gathering the right kind of evidence, and advocating it in the right kind of way. Here at SGM Law Group, we know that while many NIW applicants are brilliant, they’re seldom experts on immigration law. That’s why we always recommend retaining a qualified immigration attorney to help you with your case.

Take the stress out of filing by letting our lawyers handle the difficult tasks so that you can focus on your work in the U.S. Tell us about your case by filling out this contact form and scheduling a consultation with one of our attorneys today.

Published at Mon, 24 Jul 2017 13:00:36 +0000


EB-1C Denial: Top 6 reasons for Rejection | SGM Law Group

EB-1C Denial: Top 6 reasons for Rejection | SGM Law Group

EB-1C Denial

Every aspect of immigration law is fraught with complications. Sometimes, despite doing everything the right way, you can still get a denial. When it comes to a green card as distinguished as the EB-1C, a denial can be devastating. In this article, we delve into the reasons behind an EB-1C denial and how to avoid it.

EB-1C Background

Before we take a look at the reasons for denial, let’s first find out what goes into an EB-1C green card.

The EB-1C is an immigrant visa designed to grant lawful permanent resident status to the managers and executives of multinational companies that have a branch in the United States. In order to qualify, both you and your employer need to fulfill certain requirements.

Requirements for you

You must have maintained employment with the company for at least one continuous year in the three years leading up to your green card petition. You must also have the intention of immigrating to the U.S. to work in an executive or managerial capacity for the employer.

Requirements for your employer

Your employer must be a U.S. employer that has been doing business in the U.S. for at least one year. They must also have an office, branch, or affiliate overseas that has employed you for this transfer.

Why Was My EB-1C Denied?

So now that we know the basic overview for the EB-1C green card, we can get a better idea of what the USCIS is looking for when processing petitions. WSo, without further ado, here are the top 6 reasons for EB-1C denial.

1. Fees Were Insufficient

One of the common reasons for any visa denial is filing the wrong fees to the wrong places and it still stands as one of the common EB-1C rejection reasons. Due to the ever-changing nature of immigration law, fees and filing structures are also fluctuating. With new laws and policies being put into place each year, it shouldn’t surprise us that the fees change as well.

For example in December of 2016, the USCIS introduced a new fee schedule to a good portion of their visa forms and petitions. The fees from last year no longer apply, causing quite a few problems to those who failed to be updated on the new schedule.

Filing the wrong fees often results in a rejection, meaning that the petition never reached the decision-making stage and was sent back to the petitioner. However, there have been some rare cases in which the USCIS issued an outright EB-1C denial on account of insufficient fees. To avoid this delay, be sure to check the USCIS website for the latest fees or have your immigration attorney handle the fee payment.

2. Inconsistent Information

This reason may seem self-explanatory, but it deserves to be acknowledged in this list. While it remains a simple mistake, it’s one that many petitioners end up making. Double, even triple-checking your information can save you a great deal of headache in the future. Too many petitioners are concerned with getting their petition in as soon as possible and neglect to proofread their information.

The USCIS will either reject or deny your petition on account of incorrect, inconsistent, or missing information. This can cost you both time and money as the petition will need to be resubmitted with a new filing fee.

Avoiding this mistake is simple, make sure that each piece of information is accurate and matches the rest of your documentation. This is another problem that can easily be avoided by having an immigration attorney file your petition.

3. Criminal History/ Violation of Status

When you file your petition, the USCIS will conduct background checks to ensure that you do not have a criminal history in the U.S. or in your own country. Your case will also be examined to see if you have ever been in violation of your visa status in the past. If a crime or violation is found, then it goes without saying that your petition is likely to be denied depending on the nature and severity of the crime or violation.

While avoiding criminal activity is common sense, being in violation of your status may be more of a threat to your case. Overstaying your visa or being considered “out of status” can not only place a temporary bar on your entry into the U.S., it can damage your chances of obtaining visas in the future.

4. You Do Not Qualify

There are plenty of examples of companies that promote an underqualified worker to management for the sole purpose of obtaining a green card. Many of these are rejected due to the fact that the worker has not been a manager for at least one year and the fact that the worker lacks the necessary qualifications to effectively manage.

This may not be the case and you might be qualified, but your petition may still be denied if your qualifications are not apparent in your petition. To avoid this, be sure that your petition includes all of the necessary evidence pointing to your management ability.

5. InAbility to Pay Proposed Wages

Like many of the employment-based green cards, the EB-1C petition requires an offer of employment in order to qualify. That job offer must include the salary or wages that the company promises to pay you. In addition, your employer must demonstrate the capacity to pay you this wage.

According to the regulations, the way to prove that the wage can be paid is through showing the company’s net income, current assets, annual reports, federal tax returns, and financial statements. It also helps if you have already been making this wage during your employment with the company.

Failure to demonstrate that your employer is able to pay the proposed wage for your position is one of the more common EB-1C rejection reasons we see. Work with your immigration attorney to make sure all of your financial documents are in order.

6. Job Description Does Not Qualify

There are many things you can do to avoid an EB-1C denial, but this last reason seems to snag more petitioners than it should. The USCIS lays out what a manager or executive looks like in detail.

A manager should:

  • Oversee the day-to-day work of employees, be in charge of their wages, and have the power to hire and fire.
  • Supervise a function or department of the company.

An executive should:

  • Supervise the work of managers within the company.
  • Be able to make large decisions for the company without substantial supervision.
  • Have the ability to create goals and policies for the company.

There are some positions that have the title of manager or executive (such as account manager) that do not require the employee to fulfill the tasks above. These positions do not qualify for this green card and attempting to apply through them will most likely result in an EB-1C denial.

EB-1C Denial Rate

The USCIS keeps a relatively outdated set of statistics on their website concerning the denial rates for certain green cards. In 2010, the EB-1A denial rate was 38% with 3,200 petitions being approved and 1,998 being denied. According to the chart, this denial rate is lower than most, sometimes even reaching over 50%.

The EB-1B denial rate is much lower, showing that in the same year, only 306 of a total of 3,140 petitions were denied with a calculated denial rate of only 9%.

Unfortunately, the chart does not give the statistics for the EB-1C denial rate. However, your immigration attorney may have a good idea of what your chances are based on their previous successes.

What to Do After an EB-1C Denial

If you heed the above reasons for denial and hire an immigration attorney, you will be setting yourself up for success. However, if you have already received an EB-1C denial and are looking for what to do next, there are some options to consider with your lawyer.

Re-file

In almost all circumstances, you will have the opportunity to re-file with the USCIS. If you have filed your case either by yourself or with a different attorney, you may want to consider finding a new avenue for filing. If you obtain new evidence or had a simple mistake in your petition that resulted in rejection, re-filing may be the first move that you make.

If the denial was due to a more serious issue such as a lack of qualifications or a criminal history, simply re-filing will most likely only result in a second denial. In this case, new evidence of a change of circumstances would be required to take either of the two options below.

Can I Appeal?

There is a possibility that you can appeal the decision to a third party, but there are some caveats to consider. Appealing requires you to file with the Administrative Appeals Office (AAO) and can take a very long time to process. In addition to this, the AAO upholds the decision more often than not, meaning that time will be wasted.

Keep in mind that appealing is only available to applicants who are currently in the U.S. If you are denied by the consulate, you will most likely receive an EB-1C denial notice stating that the decision cannot be appealed.

If you do decide to appeal, do so with an attorney. Stepping into the realm of appeals is not to be done without an expert. Save yourself a substantial amount of time and trouble by getting legal help with your appeals.

Motion to Reconsider

Another option is to file a motion to reconsider. This is a request for the original entity (i.e. the USCIS) to reconsider the case if new circumstances or evidence has arisen. This last part is essential. If you simply file a motion to reconsider without presenting new evidence, your motion will likely be denied. Work with your attorney to find a way to bring new information to light

Consider the Alternatives

Lastly, though it may not be ideal, you may want to contemplate switching your goal to a different green card. Even if you don’t qualify for an EB-1C, you still may be eligible for an EB-2 or and EB-3 green card. Speak with your attorney to determine the options that may be available to you after an EB-1C denial.

How Our Immigration Attorneys Can Help

As we’ve said a few times in this article, the best way to avoid an EB-1C denial is to have an expert handle your case. At our office here at SGM Law Group, we find that the cases that get denied are almost always done without an attorney. With years of experience dealing with employment-based immigration, our lawyers can help you cross every “T” and dot every “i”.

From gathering evidence to support your case to handling the minutiae of filing, you can rest assured that your case is in the right hands. To get your immigration journey started or to receive help for your EB-1C denial, go ahead and fill out this contact form and let us schedule your consultation today.

Published at Thu, 27 Jul 2017 13:00:20 +0000


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